The Hindu : Tamil Nadu News : Kanchi Acharya gets bail in assault case

Online edition of India's National Newspaper
Tuesday, Jan 04, 2005

Tamil Nadu

Tamil Nadu

Kanchi Acharya gets bail in assault case

By A. Subramani

CHENNAI, JAN. 3 . The Madras High Court today granted unconditional bail to the Kanchi Acharya, Sri Jayendra Saraswathi, in the Radhakrishnan assault case. He has been in judicial custody since November 11, 2004 in connection with the Sankararaman murder case. He was shown to be arrested in the present case on November 23, 2004.

Justice R. Balasubramanian directed the Acharya to execute a bond for Rs. 25,000 together with two sureties each for a like sum to the satisfaction of the 23rd Metropolitan Magistrate, Saidapet here.

Lingering doubt

The judge said: "On the totality of the materials noted by me, there is a lingering doubt in my mind whether the conspiracy stated to have been hatched by the petitioner is to commit an offence falling under the first limb or the second limb of Section 307 of the Indian Penal Code (grave offence) or the act of conspiracy could be taken to mean to commit a crime of lesser gravity, namely to cause injuries alone... In my opinion, the requirement of Section 437(1)(i) of the Code of Criminal Procedure would not get attracted to the case."

The judge recorded the submission by the Acharya's counsel, M. Sathyanarayanan, that the restriction as enumerated in Section 437(1)(i) would be attracted only if the arrested person was accused of committing an offence punishable with death or life imprisonment. In other words, only when there was no scope for the court to award any punishment other than life imprisonment or death would the restriction contained under the Section come into operation.

Referring to legal evidence available with the prosecution, in the form of judicial confessions of the accused persons, Mr. Justice Balasubramanian concluded that prima facie there was legal evidence to show that there was a conspiracy to commit an offence. But "is it a grave offence under Section 307 IPC or any offence lesser in gravity?"

Though Mr. Justice Balasubramanian said the senior prosecution counsel, K.T.S. Tulsi, "rightly" argued that a conspirator would be held responsible for all acts done by other conspirators, the judge referred to a Supreme Court ruling that such a "liability is not an absolute liability and it all depends upon the facts of each case."

Mr. Justice Balasubramanian said, "going by the legal materials available on record and the settled position in law, I am of the opinion that the question as to whether the petitioner, as a conspirator, could have every possibility to reasonably foresee the actual act performed by the assailants has to be decided only on evidence by the court."

As for the confessional statement (since retracted) by Kathiravan, an accused, implicating the Acharya in the present case, the judge said, "how far the retracted judicial confession could be acted upon is a matter which would be outside the realm of consideration at this stage of considering the bail application."

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