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Tamil Nadu Government and Media on the dock
-By K.H.Deshpande

While granting bail to Shankarachaya Shri Jayendra Saraswati, the Supreme Court in the order of January 5, 2005 has made certain observations which have put the whole matter in right perspective.
It may be recalled that Shankarraman, a Manager in the Varadrajan Temple was found murdered on September 3, 2004 and Shankaracharya Shri Jayandra Saraswati was arrested on
November 11, 2004. His first bail application was rejected by the Madras High Court on November 20 and the Second bail application was also rejected on December 12, 2004.

He moved the Supreme Court by preferring Special Leave Petition. During the pendency of the SLP, the Supreme Court on December 17, 2004 passed a detailed order directing the prosecution to produce particulars of the Bank Account wherefrom money was allegedly withdrawn to pay to the assailants of Shankarraman. The Supreme Court thought it fit to give this direction because this was considered as the vital incriminating circumstance against
Shri Jayandra Saraswati. It was pointed out to the High Court, which induced it to reject the bail application of Shri Shankaracharya on two different occasions.

Shankaracharya Shri Jayandra Saraswati has been accused of conspiring to kill Shankarraman.
The theory of conspiracy was based upon the circumstances (1) Shankarraman was writing letters to different persons and authorities complaining about financial irregularities of the funds of the Mutt and unsavory and unbecoming activities being carried out in the Mutt. He also expressed apprehension that there was imminent danger to his life,
(2) on account of systematic campaign carried on by Shankarraman gainst the Mutt and in particular against Shri Jayendra Saraswati, he became angry and expressed desire to have Shankarramn killed.
(3) carry out the said design, the Shankaracharya engaged the services of Ravi Subramaniam and offered him Rs. 50 Lacs on September 1, 2004 for getting rid of Shankarraman
(4) Kathiravan as well as Ravi Subramaniam made confessional statements detailing the instructions given by Shri Jayedra Saraswati and they hired the services of the killers to eliminate Shankarraman (5) From the account of the Mutt and its allied Trusts an amount of Rs. 50 Lacs was withdrawn shortly before the death of Shankarraman.
When the Supreme Court directed the prosecution to produce the account of I C I C I Bank it took a somersault and alleged that Rs. 50 Lacs was the cash which the Mutt had in its possession as a result of sale of land and it was this cash which was paid to the concerned persons.
On behalf of the Mutt, it was contended before the Supreme Court that the cash of Rs. 50 Lacs received from the sale of land was duly deposited in the Bank Account and no amount from that has been withdrawn, as it was appropriated by the Bank towards the overdraft.

On the backdrop of these events, the Supreme Court while considering the bail application of Jayendra Saraswati was required to find whether on the available material, it could be said that the prosecution had made out a prima facie case to bear out its allegation of involvement of Shankaracharya in the murder of Shankarraman. The findings recorded by the Supreme Court are quite eloquent and strong enough to dispel the systematic vilification and character assassination of Shri Jayendra Saraswati in the matter of Shankarraman murder. The Supreme Court observes-

(i) "The statement of account clearly shows that after deposit of the aforesaid amount, the entire overdraft was cleared. This belies the prosecution case which was developed subsequently after the order has been passed by this Court on 17/12/2004, directing the State to produce copy of ICIC Bank account that the cash money was retained by the Petitioner (Shri Jayendra Saraswati) from which substantial amount was paid to the hirelings.”

(ii) As regards the confessional statement of Kathiravan (Accused No.4), the Supreme Court observes "It is important to mention that A-4 retracted his confession on 24/11/2004, when his statement was again recorded by the Magistrate under Section 164" (of the criminal procedure Code.)

(iii) As regards the confessional statement of Ravi Subramaniam recorded on 30/12/2004, the Supreme Court observes,' "the opening words of Sec. 10 (Evidence Act) are where there is a reasonable ground to believe that two or more persons have conspired together to commit an offence'. Therefore, there should first be prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against the conspirators.

No worth-while prima facie evidence apart from the alleged confessions have been brought to our notice to show that the petitioner (Shri Jayendra Saraswati) along with A-2 (Ravi Subramanium) and A-4 (Kathiravan) was party to the conspiracy. Here the confessions of A2 and A4 were recorded long after the murder. Therefore, Section 10 (Evidence Act) cannot be pressed into service."

(iv) With respect to the statement of Shankarraman that he apprehended danger to his life, the supreme court observes "Since the telephonic conversation which Shri Shankarraman had with the witness, did not relate to the cause of his death or as to the circumstances of the transactions which resulted in his death, the same does not come within the purview of S. 32 (1) of the Evidence Act and is not admissible in evidence".

(v) As regards the alleged telephonic conversation which Shri Jayendra Saraswati had with some of the Co-accused, the Supreme Court observes " the material placed before us does not indicate that the talk was with A-6 and A-7, who are alleged to have assaulted the deceased or with A-5, A-8, A-9 and A-10 who are alleged to have been standing outside". It was also contended that there were other witnesses who have heard the petitioner ( Shri Jayendra Saraswati) telling some of co-accused to eliminate the deceased. The Supreme Court says, "the names and identity of these witnesses have not been disclosed on the ground that investigation is still in progress. However, these persons are not the employees of the Mutt and are strangers. It looks highly improbable that the petitioner would talk about the commission of murder at such a time and place, where his talks could be heard by strangers".

(vi) The prosecution mainly relied upon the letters of complaints which Shankarraman had written to various persons and authorities. This was put forward as the motive for the murder of Shankarraman. The Supreme Court while dealing with this alleged motive observes" the deceased was not the employee of the Mutt but was working as In charge Administrative Manager of another Dharmasthan which has nothing to do with Kanchi Mutt and atleast since 1998, he had no connection with the said Mutt. Though according to the case of the prosecution, the deceased had started making complaints against the petitioner since August 2001, there is absolutely no evidence collected in investigation that the petitioner made any kind of protest or took any kind of action against the deceased.

There is absolutely no evidence or material collected so far in the investigation which may indicate that the petitioner has even shown any resentment against the deceased for having made allegations against either his personal character or the discharge of his duties as Shankarracharya of the Mutt.
The petitioner having kept quiet for over three years, it does not appeal to reason that he suddenly decided to have Shankarraman murdered and entered into conspiracy for the said purpose."

Two things are clear from the judgment of the Supreme Court. One, the prosecution has not been able to produce before the Court even prima facie case for implicating Shri Jayendra Saraswati in the conspiracy to murder Shankarraman and that alleged material or evidence collected by the investigating agency was highly suspect. Two, the State of Tamilnadu and its Special Investigating Agency had made false and shifting allegations regarding the amount allegedly paid to the hire lings. This raises a pertinent question about the manner and method of the functioning of investigation of crimes in this country. It should never be forgotten that life and liberty of individual is sacrosanct and any inroad on this fundamental right guaranteed by the Constitution must be strictly justified.
A person, who is accused of any cognizable offence and arrested has to undergo agony and his reputation, his status, his relations with the Society are in peril.
In any civilized society governed by Rule of Law and respect for human rights, no person is put to such indignity unless the material evidence against him is of such character that even without considering his defence any reasonable person comes to the conclusion that in larger interest of Justice that person must undergo the trial for the offence alleged against him. A person suspected of offence is not arrested unless the material available unequivocally demands his arrest for securing his presence for trial in Court of Law. A person suspected of offence is not arrested to secure confession. Any confession or statement by person accused of offence to a Police Officer investigating crime cannot be considered as evidence to convict him. Provisions to this effect are made in the Criminal Law in this Country and they are rigorously followed by the Courts.
What happens in many of the hyped cases is that persons are taken into custody by the investigating agencies. Clues are obtained from them for collection of evidence. In the Western Countries, investigating agencies, are very discrete and without forcing statements from persons reportedly having knowledge about crime, collect material evidence, which does not necessarily depend upon the oral testimony of witnesses but rests on more concrete foundations of facts and circumstances, which lend unflinching support to the prosecution case.

In the Shankarraman murder case, it appears that all these norms are abandoned. The entire effect of investigating agency had been to conduct a public trial of persons who are taken in custody by publicising what they said during interrogation.

At the time when bail application of Shri Jayendra Saraswati was heard in the High Court, the electronic media on particular channels were beaming every thing that was happening in the custody including picturisation of how Shri Jayendra Saraswati talked to assailants and others on Cell Phone, how money was laundered, how the Swami wept and confessed to his guilt and how he was entreating Jayalalita for pardon.
All this was not only highly dramatizing something which was quite un-substantiated but smelt of deliberate attempt at degrading the high status of Shri Shankarachaya and the Mutt.

The media has gleefully indulged in projecting certain women as having some kind of illicit relations with the Mutt and its officials. This is to say the least hitting the rock bottom of public morality and decency and calculated infamy of the sacred institutions.

The Courts have taken a serious view of this kind of publicity and in many cases considered it as contempt of court as obstructing the course of justice.

Lord Hardwick sounded a grave warning in Roach V/s Garvan "Nothing more is incumbent upon courts of justice than to preserve their proceedings from being misrepresented nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties to the cases before the cause is finally heard".

In another celebrated decision Rex Vs William, it is stated "Any attempt whatever to publicly prejudice criminal case whether by detail of evidence or by comment or by theatrical exhibition is an offence against public justice and a serious misdemeanour".

Will the State of Tamil Nadu and the electronic and print media listen guise to these words of wisdom or prefer to stew by their own juice!

About the Author:
K. H. Deshpande
Senior Advocate
Mumbai High Court.
First published in the Hitavada, Nagpur on 23/1/05

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