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BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT MADRAS
(CRIMINAL ORIGINAL JURISDICTION)

Crl. O.P. No. 38880/2004

Crime No. 859/2002
(On the file of E6 Foreshore Estate Police Station, Chennai)

Sri Jayendar Saraswathi Swamigal ,,, Petitioner / Accused

-Vs-

State
By E5, Foreshore Estate Police Station, Chennai
Now investigated by
Dy. Superintendent of Police,
District Crime Branch,
Kanchipuram District. … Respondent / Complainant

COUNTER AFFIDAVIT FILED ON BEHALF OF THE RESPONDENT

I, K.G. Rajakunar, S/o K. Govindappa Reddiar, Hindu, aged about 54 years, having office at District Police Office, Kanchipuram District temporarily come down to Chennai do hereby solemnly affirm and sincerely state as follows :-

1. I am the Deputy Superintendent of Police, District Crime Branch, Kanchipuram District and now appointed as Investigating Officer in the team of officers formed to investigate the above case and as such I am well acquainted with the facts and circumstances of the case.

2. I perused the above petition and deny all the allegations found therein excepting those that are specifically referred to and admitted herein.

3. It is respectfully submitted that there are absolutely no merits in the above petition.

4. It is respectfully submitted that the above application filed under Section 439 Cr. P.C. is not maintainable.

5. It is respectfully submitted that none of the grounds raised in the above petition is sustainable.

6. The minimum facts required for the purpose of better appreciation of this bail petition are as follows :-

On 20.09.2002 at about 7.30 P.M., the complainant in this case namely Tr. S. Radhakrishnan who is the proprietor of a firm manufacturing card board boxes etc. in the name and style of Sri Guru Packing Private Ltd. was viewing Television in his house, with his wife namely Smt. Jaishree and mother Smt. Saraswathi. By then two persons by name Anand @ Anand Kumar (A6) and Lakshmanan (A7) knocked the front door, then they were permitted by the said Radhakrishnan to come inside. After the door being opened by the servant boy available in the house namely one Krishnan, A-6 Anand introduced himself as a courier agent. At that time Lakshmanan (A7) instructed Anand (A6) who entered first to kill the defacto complainant Radhakrishnan and that the 1st assailant Anand (A6) approached Radhakrishnan with a knife and caused cut injury to him. On seeing this the servant boy Krishnan and wife of Radhakrishnan namely, Smt. Jaishree who are present at the scene of crime caught hold of the 1st assailant Anand (A6) and tried to prevent him from causing any further injury. The second assailant Lakshmanan (A7) immediately entered into the hall from the varandha and assaulted Jaishree and Krishnan with Anand and caused lacerated grievous injury on the left fore arm of Jaishree and multiple cut injuries on the left periatal region, right and left parental region, near the left eye and also a lacerated grievous injury on the forearm of Krishnan.

In the melee Anand (A6) who was the 1st assailant also sustained simple cut injury on the back side of his head which was accidentally caused by Lakshmanan (A7) during the said attack. Then the 2nd Assailant (A7) realizing the situation took away Anand (A6) also with him. While escaping Lakshmanan (A7) threatened the inmates of the house not to raise any alarm.

The injured were rushed to Devaki Hospital at Mylapore and were treated as inpatient. On receipt of intimation from the Hospital the Sub Inspector of Police, E5 Foreshore Estate Police Station rushed to Devaki Hospital, recorded a Statement from Radhakrishnan and registered the same in E5 Foreshore Estate Police Station, Crime No. 859/2002, under Sections 452, 324 & 307 I.P.C. on the same night i.e. 20.09.2002 at 09:30 P.M. Investigation was taken up by the Inspector of Police, Foreshore Estate Police Station.

7. It is submitted that the Investigation so far carried out reveals that during the year 2001-2002 the petitioner Jayendrar @ Subramanian was receiving several anonymous letters in the name of Somasekara Kanabadigal raising several allegations against the petitioner. Similar letters were also received by several devotees of Kanchi Mutt, which was also informed to the first accused Jayendrar. The receipt of such letters had caused severe agony to the first accused Jayendrar since they state about his unholy activities, business, dealings and deviation from Religious path.

8. I submit that Jayendrar (A1) had strongly suspected that the complainant Radhakrishnan was responsible for such anonymous letters. So he decided to put an end to such activities and therefore the first accused Jayendrar called Ravi Subramaniam (A2) and Appu (A3) and Kadiravan (A4) to Kanchi Mutt, one week prior to the date of incident in this case and consequently a conspiracy was hatched among Jayendrar (A1), Ravi Subramaniam (A2), Appu (A3) and Kadiravan (A4) so as to put an end to such activities of Radhakrishnan. Accordingly, Kadiravan (A4) engaged Sundar @ Sundaram @ Meenakshisundaram (A5) and they jointly collected other assailants namely Anandakumar (A6), Lakshmanan (A7), Boomi @ Boominathan (A8), Kannan (A9), Chinna Kumar (A10) the assailants went to the house of Radhakrishnan in two autos on 20.9.2002 and after committing the assault on Radhakrishnan the assailants escaped from the scene of occurrence.

9. I submit that Jayendrar @ Subramani (A1) was arrested on 11.11.2004 in connection with Crime No.914/2004 of B.2 Vishnu Kanchi Police Station of Kancheepuram District for the commission of offences u/s 302 read with 34 IPC and he was kept in judicial custody at Central Prison, Vellore. The arrest in this case was made at the Central Prison, Vellore on 23.11.2004 at 3.00 p.m. and he was remanded to judicial custody in this case by the Honourable XXIIIrd Metropolitan Magistrate, Saidapet, Chennai on 26.11.2004. While effecting the arrest of the petitioner, all the formalities required by law were complied by the Investigating Officer.

As far as the averments of the petitioner in paragraph 3 are concerned, it is submitted that the break through in the investigation was effected only on 6.11.2004 ie. after the arrest and recording of the confession from the accused Sunder @ Sundaram @ Meenakshisundaram which was recorded in connection with B2 Vishnu Kanchi PS Cr.No.914/2004. Thus naturally between 3rd September 2004 and 23rd September 2004 the Police did not visit Kanchi Mutt in connection with the investigation.

10. I submit that as far as the averments of the petitioner in paragraph 4 is concerned, the same is accepted as true by this respondent.

11. I submit that the averments of the petitioner in paragraph 5 that the first accused Jayendrar who was in the ‘Z’ category security would never flee from Mahaboob Nagar, is untenable. It is the prosecution case that the first accused Jayendrar @ Subramani made arrangements to leave for Nepal and he was apprehended by Police, on information that A.1 Jayendrar is going to flee the course of justice.

12. I submit that as far as the averments of the petitioner in paragraph No.6 are concerned, the same is accepted by this respondent as true.

13. I submit that as far as the averments of the petitioner in paragraph No.7 are concerned, though the first information report does not disclose any name, any particular accused, that does not mean the witnesses could never identify the assailants. This Honourable Court may appreciate the legal position that the first information report need not contain all particulars of the occurrence in detail. Therefore the claim of the petitioner has no substance.

14. I submit that as far as the averments of the petitioner in paragraph No.8 is concerned, the investigation agency did not affect the arrest of the petitioner, because the Investigation Officer had no substantial material available with him till the accused Kadiravan who arrested on 9.11.2004 in Crime No. 914/2004 of B-2 Vishnu Kanchi police station, who gave judicial confession on 19.1.2004. It is pertinent to point out that only after the return of the accused from police custody in Crime No.914/2004, the investigating officer in this case, namely, Mr. S.P.Sakthivel, Additional Superintendent of Police, PEW, Kancheepuram had served the arrest intimation to the petitioner on 23.11.2004.

15. I submit that the averments of the petitioner in paragraphs 9 & 10 are accepted to be true by the respondent.

16. I submit that as far as the averments of the petitioner in paragraph 11 are concerned, there is no illegality in recovering the weapon which was alleged to have been used by the assassins on 20.9.2002 after effecting the arrest of the assailants after 2 years. Further, conducting of the identification parade too, after two years of the occurrence also attracts no illegalities in the eyes of law especially when the assailants were arrested only after two years of the occurrence. This Honourable Court may be pleased to consider legal position that the conduction of the Identification parade by the Investigation agency during investigation is only for the purpose of assuring that the Investigation Officer did not arrest persons unconnected with the commission of crime.

17. I submit that the retracted Judicial Confession of the Co-accused can be used against the other accused if it stands corroborated through other substantial material collected by the Investigating Officer. Though letters written by the injured, were collected by the first Investigation Officer the same will not be sufficient for the initial Investigation officer to effect arrest of the petitioner until and otherwise he makes himself sure that the petitioner and none else had committed the crime.

18. I submit that this Honourable Court already followed the mandate of the Supreme Court as reported in 2004 (7) S.C.C. 5 to 8 and also considered the Judgment reported in 1978 S.C.C (Crl.)4 and 1980 (3) S.C.R 383

19. I submit that the age of the petitioner or his alleged ailments will not be a ground for granting bail to the petitioner when substantial materials are available against the petitioner. Neither the age nor his position deterred the petitioner from committing the crime.

Investigation in this case is not yet completed and the same is now passing very crucial stage. The verification of the telephone conversation patterns are yet to be completed.

Liberty of any individual is subjected to due process of law which is to be administered keeping in mind the Interest of the near and dear ones, the family members of the deceased who feel helpless and believe that there is no justice in the world and also collective interest of the larger section of the society. The collective interest of the community has to be taken into consideration. This Honorable Court may not be unduly influenced by the concept of individual liberty disregarding the facts of this case and the material collected by the prosecution. In a conflict between social security and individual liberty, this Honorable Court need not sacrifice the security of the society at the alter of the individual liberty.

20. I submit that this Honourable Court may be pleased to take into consideration the fact that many of the important witnesses who are yet to be examined by the prosecution are the inmates or associates of the Kanchi Mutt who are living at the mercy of the petitioner and are employees of the Mutt itself. I am advised to state that it is well settled legal position that the Court while granting bail should exercise its discretion in a judicious manner and not as a matter of course at the stage of Investigation. The admissibility or otherwise of confessional statements and the merits of the evidence that may be adduced are all matters to be considered at the stage of trial.

I am advised to submit that paramount consideration to be taken into account while consideration this bail application are:

(i) The nature of accusation leveled against the petitioner the severity of punishment in the case of conviction and the nature of supporting evidence .

(ii) The reasonable apprehension of accused tampering with the witnesses or apprehension of threat to the complainant.

(iii) Prima facie satisfaction of the court in support of the charge.

(iv) Frivolity and genuineness of the prosecution and it is only the element of genuineness of the prosecution and it is only the element of genuineness that has to be considered in the matter of granting bail.

(v) Circumstances which are peculiar to the accused character of the evidence and larger interest of society.

21. I submit that placement of the first accused in the society is immaterial in such grave crimes. His position alone cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranted to grant of bail. The offence committed by the accused person is more heinous one under section 307 road with 120 (b) 324 and 307 road with 34 I.P.C, namely, calculated well designed and gruesome attempt of murder perpetrated through rowdy elements on payment of money.

22. I am advised to submit that as it was held by the Honorable Supreme Court of India , time and again investigation of the offence is the field exclusively reserved for police, they are expected to exercise the power legitimately in compliance with the provision of law. This Honorable Court may be pleased to consider the fact that the petitioner engineered and employed persons unconnected with the crime to be produced before the Court and were made to surrender. Such being the influence, money, power and character of the petitioner, that can be put on a machinery meant of Law and Order, the release of the petitioner will not allow any same person to cooperate without fear during investigation. With great difficulty and due to constant arduous work by the investigation team the material were collected. All the efforts of the Investigating Agency will be thwarted if the petitioner is released on bail at this stage.

23. I submit that the petitioner being involved in Criminal Conspiracy engaging hireling and providing money for the hirelings shows how the dominates the will of man with poor moral fibre. Therefore, if the petitioner is released on bail, he will resort to anything to erase the evidence or to deter evidence being placed before the court, which comes within the ambit of tampering and likelihood of not ensuring effective investigation. If the petitioner is released on bail, there is every possibility of creating a non conducive atmosphere for further investigation. Therefore, this petitioner may not be released on by this Honorable Court .

24. The petitioner is having followers throughout India and he is a very powerful and influential person. Therefore, keeping in view of the position and status and the influential nature of the accused, possibility of evidence collected during investigation being tampered with cannot be ruled out.

25. It is respectfully submitted that there are absolutely no merits in the above application and the same is liable to be dismissed. If the petitioner is released on bail he will tamer with evidence and hamper the investigation. He will also escape from the clutches of law. Under these circumstances, it is most humble prayed that his Honorable court may be pleased to dismiss this bail application as devoid of merits allowing the investigation to be carried out in a free and fair manner and thus render justice.

Solemnly affirmed at Madras {}
this the 23rd day of December 2004 {} BEFORE ME
and signed his name in my presence {}

Advocate, Madras

IN THE HIGH COURT OF
JUDICATURE AT MADRAS

Crl. O.P No. 38880/2004
In
Crime No. 869/2002
(On the file of E5 Foreshore Estate
P.S Chennai)

COUNTER AFFIDAVIT FILED
ON BEHALF OF THE RESPONDENT

Public Prosecutor.