The Hindu : Front Page : High Court reserves orders on Acharya's bail plea

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Tuesday, Dec 07, 2004

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High Court reserves orders on Acharya's bail plea

By A. Subramani

CHENNAI, DEC. 6. The Madras High Court today reserved its orders on the Kanchi Sankaracharya, Jayendra Saraswathi's bail petition in the Sankararaman murder case.

The entire issue now revolves round a question of law — whether the High Court could exercise its "special powers" or not under Section 439 of the Code of Criminal Procedure, unfettered by the conditions laid down in Section 437(1) Cr.P.C. and the guidelines enumerated by the Supreme Court in the Pappu Yadav case.

This, in addition to the "additional information," which included the originals of 39 letters written by Sankararaman; date, time and duration of the alleged telephone conversation between the Acharya and the assailants; and details of Rs. 50 lakhs, withdrawn from three bank accounts of the Sankara Mutt in three different banks, will now be considered by Justice R. Balasubramanian, who heard exhaustive arguments by senior counsel K.T.S. Tulsi for the prosecution and senior counsel I. Subramaniam for the Acharya.

Contending that the matter, for which orders were actually reserved on November 30, had been reopened at the behest of the Acharya's counsel, Mr. Tulsi today furnished "additional information" collected during the "last five days."

"Four different versions"

However, Mr. Subramaniam submitted that the prosecution was unfairly declining to furnish details regarding the alleged "additional information," and added that "this is not prosecution but persecution." So far, the prosecution had come out with at least four different versions on the alleged telephonic conversations. As for withdrawal of money, he said that from which account it was withdrawn, by whom and for what purpose would have to be gone into.

When Mr. Subramaniam said the question over the ownership and the exclusive use of the mobile phone was yet to be ascertained by the prosecution, Mr. Tulsi said the investigators had "clinching proof" that it was in the "exclusive possession of the Acharya and that it was exclusively used by him."

Bail guidelines

Earlier in the day, Mr. Subramaniam argued that the embargo on granting bail, as found in Section 437(1), could not be "bodily lifted and transplanted" on Section 439, which confers certain special powers on the High Court in granting bail. He said the bar had no universal application and called for a harmonious reading of the two provisions.

Mr. Tulsi, however, said the Supreme Court, while cancelling the bail of Pappu Yadav, had categorically stated that Section 437 was a sine qua non (condition precedent) for Section 439. "There is a difference between appreciating evidence at a premature stage and citing reasons as required under Section 437(1)(i)," he said, adding that "it was not an incidental observation nor a judgment on concession nor due to ignorance of law."

Hearing on the Acharya's other bail plea, in connection with a two-year-old assault case, is scheduled to start in the Principal Sessions Court here tomorrow.

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