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Wednesday, Dec 01, 2004

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Court asks prosecution to produce case diary, judicial confession today

By A. Subramani

CHENNAI, NOV. 30. Justice R. Balasubramanian of the Madras High Court, who reserved orders in the bail petition of the Kanchi Sankaracharya, Sri Jayendra Saraswati, in the Sankararaman murder case today asked the prosecution to make available the case diary, along with the "judicial confessions and subsequent materials" recovered by the investigating agency, by tomorrow for perusal.

When the matter came up for hearing today, senior counsel for the Acharya, I. Subramaniam, assailed the prosecution contention that evidence could not be evaluated at this stage. He said: "The proposition that the admissibility or otherwise of a confession by a co-accused can be considered only at the trial stage is not tenable." If evidence could not be considered in one particular stage, it could not be considered in any other stage.

As for the "bar" on granting bail to grave offences punishable with life imprisonment or the death sentence, counsel said that giving reasons while granting bail was different from discussing the merits or demerits of a case. Also, the bar was only for lower courts.

As regards the materials available to "corroborate" the Acharya's involvement in the crime, Mr. Subramaniam said the prosecution first claimed that the Acharya exclusively used the telephone registered in the name of a Mutt official.

"Now, since they lack material to prove the allegation, for the first time they have come out with a theory that one of the assailants made a call to the Acharya from a public call office 15 minutes after the murder. Neither the ownership nor the user of the instrument has been established, and no voice identification done. Also, one does not know what transpired during the talk. It is an unreasonable belief. The information had come from a "tainted source."

To this, Mr. Justice Balasubramanian observed: "You cannot close your eyes to Section 437(1)(i) of Code of Criminal Procedure. He said judicial confessions; printout of telephone calls made from a public call office after the murder; and two new `direct witnesses' who actually saw the Acharya in the company of the other accused had come to light. While one witness has recorded his statements to the police under Section 161 Cr.P.C. the other one has given statement to a magistrate under Section 164 Cr.P.C. "The prosecution say they have collected many material objects and that they have vital leads to substantiate the evidence gathered so far," he said.

`Witnesses influenced'

Earlier, continuing his arguments, the senior prosecution counsel, K.T.S. Tulsi, said that under Section 437 (1)(i) Cr.P.C. no bail could be granted if there were "reasonable grounds" to believe that credible materials were available to prove the complicity of the accused. The discretion available for the High Court under Section 439 Cr.P.C. too must be guided by the conditions enumerated in Section 437, he added.

According to him, "the unity of object and purpose in the present case is the elimination of a trouble-maker, Sankararaman. The object is clear — the Acharya must not receive letters [from Sankararaman]. The Acharya does not need to know when and where the murder would be committed and what weapon the assailants would use. The mere agreement to finish off Sankararaman is enough. It is the essence of the conspiracy."

Mr. Tulsi charged the Acharya with influencing the witnesses and causing hindrance to investigation. "Witnesses have been influenced and retraction of confessions was engineered at the behest of the Acharya. He wields huge influence even when in jail. If he comes out, nobody will have the courage to speak out the truth," he argued.

He said the prosecution did not want to offend the people's faith in the institution, Sankara Mutt. "It is a matter of faith. We do not want to say things that may lead to allegations that we are attempting to denigrate the institution," he said.

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