The Supreme Court of India - Kanchi Shankaracharya Case

CASE NO.:

Transfer Petition (crl.) 134 of 2005

PETITIONER:

Sri Jayendra Saraswathy Swamigal,Tamil Nadu

RESPONDENT:

State of Tamil Nadu and others

DATE OF JUDGMENT: 26/10/2005

BENCH:

CJI R.C. Lahoti & G.P. Mathur

JUDGMENT:

J U D G M E N T

G.P. Mathur,J.

This petition has been filed by Jayendra Saraswathy Swamigal,

Sankaracharya of Kanchi Kamakoti Peetam under Section 406 Cr.P.C.

seeking transfer of Sessions Case No. 197 of 2005 pending before the

Principal Sessions Court, Chenglepet, to any other State, out side the

State of Tamil Nadu. The respondents arrayed in the Transfer

Petition are (1) State of Tamil Nadu, (2) Director General of Police,

Tamil Nadu, (3) Shri Prem Kumar, Superintendent of Police, Head of

the Special Investigation Team (SIT), (4) Shri S.P. Sakthivel, Chief

Investigating Officer, SIT, besides respondent Nos. 5 to 28, who are

co-accused in the case. Except for respondent No. 5, P. Subramaniam

@ Ravi Subramaniam, who has been granted pardon and has turned

approver, the remaining co-accused, namely, respondent Nos. 6 to 28

are supporting the prayer for transfer of the case and some of them

have filed affidavits in that regard.

2. An FIR was lodged at 7.00 p.m. on 3.9.2004 at Police Station

B-2, Vishnu Kanchi by Shri N.S. Ganesan. It was stated therein that

at about 5.45 p.m. on 3.9.2004 while he was in the office of

Devarajaswamy Devasthanam, two persons armed with aruval came

there and caused multiple injuries to Sankararaman, In-charge

Administrative Manager, who was sitting on a chair. Four persons

were waiting outside and the assailants escaped on their motorcycles.

After the case was registered, necessary investigation followed and

several persons were arrested.

3. According to the case of the prosecution, the petitioner had

entered into a conspiracy with some other co-accused for getting

Sankararaman murdered. The motive for the commission of the crime

is said to be various complaints alleged to have been made by the

deceased levelling serious allegations, both against the personal

character of the petitioner and also his style of functioning as

Shankaracharya of the Mutt. The petitioner was arrested on

11.11.2004 from Mehboobnagar in Andhra Pradesh. He filed a bail

petition before the High Court of Madras, which was rejected on

20.11.2004 and the second petition was rejected on 8.12.2004.

Thereafter, the petitioner filed Special Leave Petition (Crl.) No. 6192

of 2004, which was allowed by this Court on 10.1.2005 and he was

granted bail. The very next day, i.e., on 11.1.2005 Vijayendra

Saraswati Swamigal (respondent No. 6), who is the junior

Sankaracharya, was arrested. According to the custom and tradition

of the Mutt, he would succeed the petitioner.

4. After completion of investigation the police submitted a charge-

sheet against all the 24 accused in the Court of Judicial Magistrate,

Kanchipuram on 21.1.2005, which was registered as Preliminary

Registered Case (PRC) No. 2 of 2005 and committal proceedings took

place and finally the case was committed to the Court of Sessions

where it has been registered as S.C. No. 197 of 2005.

5. The transfer of the case has been sought on several grounds and

basically speaking they are as under: -

i) The State machinery in Tamil Nadu and specially the Special

Investigation Team headed by Shri Prem Kumar,

Superintendent of Police, has shown great zeal and has made

extraordinary efforts, much beyond what is required under the

law to anyhow secure the conviction of the accused and to

achieve that object has procured and fabricated false evidence.

ii) The Chief Minister of the State of Tamil Nadu, who is also

holding the Home portfolio, has made statements on the floor of

the House that the petitioner and the other co-accused are

actually involved in the murder of Sankararaman and has also

given some press statements and has thereby pre-empted a fair

decision in the criminal trial, as statements of persons holding

such high offices and specially those made on the floor of the

House, are generally believed to be correct and thus the accused

stand condemned even before the commencement of the trial.

iii) A solatium of Rs.5.00 lakhs was paid by the Chief Minister of

Tamil Nadu to Padma Sankararaman (widow of deceased

Sankararaman) on 24.11.2004, long before completion of

investigation and submission of charge-sheet, and, this was

given wide publicity in the electronic media and newspapers

etc., which shows that the State Government is taking special

interest in the case and is too keen to secure conviction of the

accused in order to justify the stand taken by it.

iv) Concocted and false cases have been registered against 16 co-

accused. Even before their bail applications in the present case

could be heard, detention orders were passed against them

under the Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Drug Offenders, Forest Offenders, Goondas,

Immoral Traffic Offenders, Slum Grabbers and Video Pirates

Act, 1982 (for short "Goondas Act") between 16.1.2005 and

6.2.2005 so that even after grant of bail by the court they may

remain in custody.

v) The advocates appearing for the petitioner and other co-accused

have been put under great threat on account of lodging of false

and fabricated criminal cases against them and a situation has

been created wherein they may not be in a position to defend

the accused properly. This will also have a general affect as

other lawyers would feel hesitant to conduct the case on behalf

of the accused.

vi) The Mutt and other associated and connected trusts have 183

accounts in banks, which were all frozen by the SIT resulting in

paralyzing the religious and other activities of the Mutt and

other connected bodies.

vii) Criminal cases have been lodged against some leading

journalists of the country and other prominent personalities,

who had written articles criticizing the arrest of the petitioner,

which not only violates right of free speech but also creates an

atmosphere of threat against anyone daring to speak or write in

favour of the accused and thus the accused seriously apprehend

that they would not get a fair trial in the State of Tamil Nadu.

viii) Shri Prem Kumar, who is heading the Special Investigating

Team, is not a fair and upright officer and superior courts have

passed strictures against him several times in the past for his

uncalled for actions in going out of the way to implicate

innocent persons in criminal cases.

6. In reply to the Transfer Petition three sets of counter affidavits

have been filed, one on behalf of the State of Tamil Nadu and its

Director General of Police, second by Shri Prem Kumar, Head of SIT,

who has been impleaded as respondent No. 3 and the third by P.

Subramaniam @ Ravi Subramaniam, co-accused, who has been

granted pardon and has turned approver in the case. A detailed

rejoinder affidavit has been filed by the petitioner and some other

affidavits have also been filed to which we will make reference at the

appropriate stage.

7. We have heard Shri F.S. Nariman, learned senior counsel for

the petitioner, Shri Ashok Desai, learned senior counsel, who has

appeared for respondent No. 6 Vijayendra Saraswati Swamigal (junior

Shankaracharya) and Shri G.L. Sanghi, learned senior counsel for

respondent No. 8. We have also heard Dr. Rajeev Dhavan, learned

senior counsel, who has appeared for respondent Nos. 1 and 2, Shri

Shanti Bhushan, learned senior counsel, who has appeared for

respondent No. 5 Ravi Subramaniam (approver) and Ms. Indira

Jaisingh, who has appeared for Padma Sankararaman (widow of the

deceased), though she had not been arrayed as party to the Transfer

Petition.

8. The contention raised on the basis of the statements made by

the Chief Minister on the floor of the House does not impress us. The

Chief Minister who is also holding the Home Portfolio made the

statement on 17.11.2004 and also gave a Press statement on

1.12.2004. She merely stated that the investigation has revealed the

involvement of the petitioner Jayendra Saraswathy in the

Shankararaman murder case. The investigating agency has come out

with a case that the petitioner had entered into a conspiracy with some

other co-accused in getting Shankararaman murdered. The petitioner

had already been arrested earlier on 11.11.2004. The arrest of the

petitioner had generated lot of publicity and in such circumstances no

exception can be taken to the statement made by the Chief Minister on

the floor of the House. We are, therefore, of the opinion that the

petitioner or other co-accused cannot raise any grievance on the basis

of the aforesaid statement of the Chief Minister and it cannot be a

ground for transferring the case to another State.

9. We will now take up the issue regarding availability of counsel

to the accused and conduct of their cases by lawyers in a free

atmosphere without any threat or fear, so that their defence may not

go by default. The petitioner has engaged Shri K.S. Dinakaran, who

is 67 years of age and is a very senior counsel having put in 43 years

of practice. Besides him Shri A. Shanmugam, who has a standing of

27 years at the Bar and some other lawyers are also appearing for him.

Shri Shanmugam has filed an affidavit in this Court on 27.4.2005,

which was sworn on 18.4.2005. It is averred therein that the copy of

the charge-sheet, which is a long document and runs into 1873 pages,

was given to the accused on 31.3.2005 and on the same day the

prosecution sought to examine Ravi Subramaniam (approver) before

the Court of Judicial Magistrate, who had taken cognizance of the

offence and was holding committal proceedings. An application was

then moved on behalf of the petitioner praying for permission to

cross-examine Ravi Subramaniam in case his statement was recorded

and for this purpose some time was sought in order to go through all

the documents contained in the charge-sheet. The learned Magistrate

fixed 4.4.2005 for disposal of the application moved on behalf of the

accused and after one more adjournment it was taken up on 7.4.2005

when the learned Magistrate held that the accused were entitled to

cross examine Ravi Subramaniam. However, the prayer made on

behalf of the accused to furnish copy of the video and audio cassettes,

which are mentioned in the charge-sheet, was rejected. The

examination-in-chief of Ravi Subramaniam commenced on 7.4.2005

which could not be completed on that day and the case was adjourned

to 8.4.2005 and thereafter to 11.4.2005. On the said day, while his

cross-examination was going on, on the instructions of Shri Prem

Kumar, Superintendent of Police and Head of SIT one police

inspector by the name of Srinivasan, who is part of the SIT and is said

to have been instrumental in effecting the arrest of the approver Ravi

Subramaniam, whispered something to him. Immediately thereafter,

Ravi Subramaniam of his own volunteered and made a statement that

Shri K.S. Dinakaran, senior counsel who is appearing for the

petitioner, had met his wife Smt. Chitra at his house and had

threatened her that he (Ravi Subramaniam) should not give any

statement against the petitioner. This conduct of Shri Prem Kumar

and inspector Srinivasan of prompting the witness to make a statement

against the senior counsel Shri Dinakaran was strongly objected to by

the defence lawyers and they expressed their anguish in the manner in

which the police was going out of its way in making insinuations and

securing statement of witnesses against the defence lawyers. On the

objection being taken by the defence lawyers the learned Judicial

Magistrate, who had witnessed the entire incident, asked the inspector

Srinivasan to leave the court. He also declined to record the aforesaid

statement made by Ravi Subramaniam wherein he had said that Shri

K.S. Dinakaran had gone to his house and had threatened his wife.

Shri K.S. Dinakaran, in his letter dated 23.9.2005 sent to Shri Krishna

Kumar, Advocate on Record for the petitioner in the Supreme Court

(copy of which has been placed on record), has mentioned that the

said incident did take place in the court of learned Judicial Magistrate

on 11.4.2005 and the affidavit filed by Shri A. Shanmugam,

Advocate, wherein the aforesaid incident had been narrated, is correct.

The allegation made against him by Ravi Subramaniam at the instance

of Shri Prem Kumar and on the whispering made to him by inspector

Srinivasan are false, frivolous and vexatious, apart from being

motivated and he had never met the wife of Ravi Subramaniam at any

time. He has also written that this is an attempt to demoralize and

scare him by scandalizing his reputation and casting slur on his

character and conduct. In the counter affidavit filed on behalf of the

State it is stated in paragraph 15(vi) that Ravi Subramaniam had

himself made a voluntary statement to the effect that Shri K.S.

Dinakaran had met his wife at his house and had threatened her.

However, the allegation that the aforesaid statement was made at the

prompting of Shri Prem Kumar and thereafter whispering by inspecter

Srinivasan to Ravi Subramaniam is denied. It is also denied that the

learned Magistrate asked Srinivasan to leave the court. Shri Prem

Kumar has given exactly similar version of the incident in paragraph 9

of his counter affidavit, namely, that Ravi Subramaniam made a

voluntary statement that Shri K.S. Dinakaran had met his wife at his

house and had threatened her and further that the said statement was

not made either on his prompting or on the whispering of Srinivasan.

It is important to note that in the statement of Ravi Subramaniam, as

recorded in the court of Judicial Magistrate on 11.4.2005, the sentence

that "Shri K.S. Dinakaran had met his wife at his house and had

threatened her" does not find place. This, therefore, establishes the

correctness of the version of the incident given by Shri A.

Shanmugam in his affidavit and also by Shri K.S. Dinakaran,

advocate in his letter, namely, that the aforesaid statement was given

by Ravi Subramaniam at the prompting of Shri Prem Kumar and then

whispering done by inspector Srinivasan to the witness and as a result

of the objection raised by the defence lawyers the learned Magistrate

declined to record the said part of the statement of the witness. This

conduct of the prosecution machinery in prompting the witness to

make a totally false allegation against a very senior counsel appearing

for the defence is hound to demoralize and scare him and he cannot

perform his duty of conducting the case in a fearless and proper

manner. No lawyer would like to get associated with a case where a

slur is made on his character and conduct and the reputation, which he

has earned by maintaining high professional standards for a long

period, is sought to be damaged. Any dignified lawyer would not

agree to conduct a case on behalf of the accused in such an

atmosphere and even if he does so, he would not be able to discharge

his duties properly on account of threat to his personal reputation.

This is bound to result in miscarriage of justice for the accused.

10. There is some other material to show threat to lawyers. One

Mrs. Revathy Vasudevan is an advocate practicing at Kanchipuram

and she is junior of Shri A. Shanmugam, Advocate. Another lady

lawyer Mrs. Nadhira Banu is also practicing at Kanchipuram and is

junior of Shri Y. Thiagarajan. Shri A. Shanmugam and Shri Y.

Thiagarajan are appearing as counsel for the accused. Mrs. Revathy

Vasudevan has been appointed by the Chairman, Legal Aid Service

Authority as counsel to assist prisoners, who may be on remand and

want to avail the services of a legal aid counsel. Mrs. Nadhira Banu

has been appointed as a counsel for visiting the sub-jail, Kanchipuram

and providing legal assistance from Legal Services Authority to under

trial prisoners, who want to seek legal aid. On 19.2.2005 Smt. Chitra

wife of Ravi Subramaniam (approver) lodged an FIR at B-1

Sivakanchi Police Station, alleging that she had visited the

Kanchipuram sub-jail on the said date as she had come to know

through newspaper reports that her husband had been arrested in

connection with the Sankararaman murder case by the police and has

turned as approver and is lodged at Kanchipuram sub-jail. When she

met her husband, he told her that on 1.2.2005 and 9.2.2005 two lady

advocates, namely, Revathy and Nathira Banu met him in the jail and

asked him not to give any statement or evidence against the

Shankaracharya and for this purpose he would be given huge sum of

money and if he did not abide by their advice he would be killed when

he would come out of the jail. He also told her that this threat was

given to him by the lady lawyers as per the directions of Jayendra

Saraswathi Swamigal (petitioner herein) and two advocates, viz., Shri

Shanmugam and Shri Thiyagarajan. On the basis of the aforesaid

report a case was registered as Crime No. 127 of 2005 under Section

201 read with Section 109, 213E, 506(2) IPC at Sivakanchi Police

Station. It is noteworthy to mention here that in his confessional

statement, which was recorded under Section 164 Cr.P.C. on

31.12.2004 before the Chief Judicial Magistrate, Chenglepet, Ravi

Subramaniam had stated that his relations with his wife were strained

for over ten years. Shri A. Shanmugam, advocate, apprehending that

the FIR lodged by Smt. Chitra was manipulated by the State

machinery and he may be falsely implicated in the aforesaid case and

may be arrested, then filed Writ Petition No. 6407 of 2005 (A.

Shanmugham vs. State of Tamil Nadu and others) in the High Court

of Madras praying for a writ of mandamus for transferring the

investigation of case Crime No. 127 of 2005 from the local police to

CBI. The writ petition was disposed of on 15.3.2005 by the following

order: -

"The learned Public Prosecutor states that no proceedings

are contemplated against the writ petitioner Mr. A.

Shanmugham. Therefore, nothing further survives in the

writ petition. The writ petition is disposed of

accordingly. Consequently, the connected W.P.M.P. No.

6990 of 2005 is closed."

11. The two lady lawyers, namely, Revathy Vasudevan and

Nadhira Banu also filed similar writ petitions being Writ Petition Nos.

19146 of 2005 and 19147 of 2005 praying that a writ of mandamus be

issued directing the transfer of investigation of case Crime No. 127 of

2005 registered against them from the local police to the CBI. The

local police, however, acted with considerable speed and submitted a

charge-sheet on 17.6.2005 against both the lady lawyers under

Sections 451, 214 IPC read with Sections 109, 201, 506 (2) IPC and a

case was registered on the file of Judicial Magistrate No. I,

Kanchipuram being PRC No. 3 of 2005. The writ petitions were

disposed of on 24.6.2005 and paragraphs 1, 5, 6 and 7 of the order

passed by the High Court are being reproduced below: -

"1. Petitioners herein are practicing Women Lawyers

at Kancheepuram and both of them are in the panel of

Taluk Legal Services Committee, Kancheepuram.

Misconstruing their visit to the sub-jail on 1.2.2005 and

9.2.2005 as though they had attempted to induce one

Ravisubramaniam, an accused in the sensitive criminal

case, namely, Sankararaman murder case, in crime No.

914 of 2004 on the file of Vishnu Kanchi Police Station

and now pending as S.C. No. 197 of 2005 on the file of

District and Sessions Court, Chingleput, to resile from

his earlier statement made against the co-accused in the

said case, a case was registered against both the

petitioners in crime No. 127 of 2005 for the offences

punishable under Sections 201 read with 109, 213, 451

and 506(2) IPC, in which final report had already been

filed and was taken on file as PRC No. 3 of 2005 on the

file of Judicial Magistrate No. I, Kancheepuram. ............

5. Today Mr. K. Doraisami, learned Public

Prosecutor after getting necessary instructions from the

Government, perusing the relevant records, applying his

mind on the issue and taking into consideration the facts

and circumstances of the case, submits that necessary

steps will be taken to withdraw the case against the

petitioners in accordance with law or alternatively the

petitioners may be permitted to take appropriate steps in

PRC 3 of 2005 on the file of Judicial Magistrate No. I,

Kancheepuram, to discharge themselves, to which

learned Public Prosecutor will not have any objection.

Of course, the learned Public Prosecutor also expects the

petitioners that they will not give any room for such

allegations in future.

6. Both the petitioners present before the Court today

stated that they did not involve in any such act as

complained and charged, nor they will involve in such

act in future. The above statement of the petitioners is

put on record.

7. In view of the fair stand of Mr. K. Doraisamy,

learned Public Prosecutor, I am of the considered opinion

that nothing survives in the above writ petitions and

therefore no further orders are required in the matter,

except to permit the learned Public Prosecutor to take

steps for withdrawal of the case against the petitioners as

contemplated under Section 321 Crl.P.C., or

alternatively, to permit the petitioners to get themselves

discharged from PRC No. 3 of 2005 on the file of

Judicial Magistrate No. I, Kancheepuram, in accordance

with law, in appropriate proceedings."

12. Shri F.S. Nariman, learned senior counsel for the petitioner has

strongly urged that in case the version given in the FIR lodged by

Smt. Chitra, wife of Ravi Subramaniam, was correct there was no

occasion for the public prosecutor to make a statement that necessary

steps would be taken to withdraw the case and the prosecution should

have proceeded with the case to its logical end which would have

revealed the truth. He has further submitted that in spite of the

statement of the public prosecutor on the basis of which the writ

petition was disposed of on 24.6.2005, till now no application has

been moved under Section 321 Cr.P.C. seeking withdrawal of the

case. Dr. Rajeev Dhavan, learned senior counsel for the State has,

however, submitted that the presence of the two lady lawyers in the

jail on the dates mentioned in the FIR lodged by Smt. Chitra is not

disputed, which prima facie indicates about the correctness of the FIR

lodged by her. Dr. Dhavan has also placed some papers for the

perusal of the Court which show that the District Magistrate has

written to the Government for withdrawing the case. However, the

fact remains that so far no application under Section 321 Cr.P.C. has

been moved to withdraw the criminal case wherein a charge-sheet has

been submitted against the two lady lawyers. The fact that Shri A.

Shanmugam, advocate for the petitioner, had to move a writ petition

in the High Court for transfer of the investigation of the case lodged

by Smt. Chitra and the two lady lawyers, who are juniors to the

advocates appearing for the accused, had also to file similar writ

petitions gives an idea of the atmosphere in which the lawyers

appearing for the accused are functioning and discharging their

professional duties. The mere statement of the public prosecutor that

steps will be taken to withdraw the criminal case, in absence of any

concrete steps having been taken in that regard, namely, filing of an

application under Section 321 Cr.P.C., can hardly give any solace to

the concerned lawyers. There cannot be even a slightest doubt that a

lawyer appearing for an accused who is facing a murder charge,

cannot perform his professional duty as is required of him when he

himself is faced with criminal prosecution, for a serious charge like

201 and 214 IPC, which are punishable with imprisonment for a term

which may extend to seven years and also fine. Though it is not

necessary for the decision of the present Transfer Petition yet we

cannot restrain ourselves from commenting that the necessary

ingredient of an offence under Section 201 IPC is actually causing any

evidence of the commission of an offence to disappear with the

intention of screening the offender from legal punishment. Therefore,

the oral threat or inducement allegedly given by the two lady lawyers

to Ravi Subramaniam not to give any statement against the petitioner

cannot amount to commission of an offence under the said section.

Yet the local police submitted a charge-sheet against the aforesaid

lady lawyers for their prosecution under Section 201 IPC. Institution

of the criminal case against the junior lawyers, whose seniors are

appearing as counsel for the accused, undoubtedly shows that in the

prevailing conditions the accused will be seriously handicapped in

defending themselves on account of threat and intimidation to their

counsel.

13. Another strong circumstance, pointed out by the learned

counsel for the petitioner to show that the State machinery is going

out of its way in preventing the petitioner and some other accused

connected with the Mutt in defending themselves and to secure their

conviction by any means, is the action of the SIT in issuing a direction

for freezing the accounts of the Mutt in the banks. Shri Prem Kumar

and Shri S.P. Sakthivel, Head and Chief Investigating Officer of SIT

(respondent Nos. 3 and 4) wrote to several banks to "stop all further

transactions, if any, through your bank in future" whereby 183 bank

accounts belonging to the Mutt and even independent trusts, which

had been functioning under the control and/or direction of the Mutt,

became unfunctional. The result whereof was that the entire working

of the Kanchi Mutt came to a standstill. Faced with such a draconian

order of the State authorities His Holiness Sri Kanchi Kamakoti

Peetadhipathi Jagadguru Sri Sankaracharya Swamigal Srimatam

Samasthanam, represented by its Manager, filed writ petition No.

1050 of 2005 impleading (1) State of Tamil Nadu, (2) Secretary to

Government, Hindu Religious and Charitable Endowments

Department, (3) Superintendent of Police, SIT and several banks as

respondents praying that a writ of mandamus be issued forbearing

respondents 1 to 3 from interfering with the right of the petitioner to

manage and administer its affairs properly including the bank

accounts in various banks held in its name and in the names of its

various endowments and trusts connected with it. The High Court

after examining the matter in considerable detail allowed the writ

petition by the judgment and order dated 11.2.2005. It is noticed in

the judgment that the Manager of the Mutt was called at least 15 times

for interrogation and was arrested on 24.12.2004 and the junior

Shankaracharya was also arrested on 11.1.2005. The police called for

title deeds relating to the properties, which had no connection with the

criminal case. The letter, which was sent by the Chief Investigating

Officer to various banks has been quoted in the judgment and the

same reads as under: -

"During the course of investigation there are reasonable

suspicion to indicate certain irregularities had crept in by

way of money transactions to certain agencies through

your bank till today. Hence it is expedient and necessary

to stop all further transaction if any through your bank in

future.

Therefore, I request that necessary steps may be

taken immediately to freeze the account in the above

reference No. 1 on the file of your bank."

The respondent State sought to justify the action of freezing of the

accounts under Section 102 Cr.P.C. After detailed consideration of

the matter the High Court recorded its findings on the relevant issues

and paragraphs 44 and 46 thereof are being reproduced below: -

"44. The scope and applicability of Section 102,

Cr.P.C. is under rare and exceptional circumstances and

is to be applied only to the assets of the accused, which

are the direct outcome of the crime and not to stifle the

activities of the Mutt which is an institution unconnected

with the offence. The power which is vested for a

particular purpose cannot be stretched to irrelevant

matters and to extremes and to a breaking point, in the

event of which, the Court is compelled to interfere.

Discretion to use the power should be used and exercised

cautiously, failing which, it becomes misuse of discretion

and tainted with arbitrariness.

46. The Mutt is an organization of religious faith of

innumerable people. So also is the Church, Mosque,

Wakf, etc. There are several Endowments, Trusts and

philanthropic activities attached to these organizations

over which several devotees have personal interest, faith

and sentimental devotion. One may or may not agree

with the respective faith or belief of others. But they

have a right to establish and maintain institutions for

religious and charitable purposes within the framework

of law and such right is granted as a fundamental right

under the Constitution vide Article 26. Such an

organization cannot be paralysed or closed down

virtually by sending a letter purporting to act under

Section 102, Cr.P.C., only for the reason that the Head of

the Mutt and few office bearers are alleged to be

involved in some offences. A word of caution to the

Special Investigation Team: By all means, take action in

the criminal cases against the indicted individuals with a

single-minded determination if you feel convinced about

their guilt. No one is above the law. But if you divert

and deviate from that direction unmindful of the rights of

innocent devotees of the Mutt, it would result not only in

diluting the prosecution, but also cast a deep shadow on

it. If there is anything wrong with the administration of

the Mutt, it is for the H.R. and C.E. Department which

has to comply with the procedure under the Act and to

look after the said issues in terms of the provisions of the

Act and it is not for the police to interfere with the

functions of the Mutt while investigating a case of

murder or assault. Even if any commission or omission

amounting to a criminal misconduct is brought to light in

so far as the administration of the Mutt is concerned in

the opinion of the H.R. & C.E. Department, it may be

open to the H.R. & C.E. Department to file a complaint

before the police for appropriate action against the

individuals concerned. It is not for the Special

Investigation Team dealing with a murder and assault

case to plunge into the accounts of the Mutt, and paralyse

its functions by invoking Section 102, Cr.P.C."

14. The High Court accordingly held that the impugned action of

the Chief Investigating Officer, SIT in invoking Section 102 Cr.P.C.

for freezing of the accounts of the Mutt is ultra vires the said

provision, illegal and liable to be set aside, subject to the direction to

the petitioner that they shall submit a statement of accounts pertaining

to all bank deposits to the third respondent once in a month till the

completion of the trial.

15. Dr. Dhavan, learned senior counsel appearing for the

respondents sought to justify the freezing of the accounts on the

ground that the petitioner had hatched conspiracy to get Sankararaman

murdered and large amount of money was being withdrawn from the

banks to finance the hirelings. We are not impressed by the

submission made by Dr. Dhavan. The alleged conspiracy to commit

the murder of Sankararaman culminated with his murder, which took

place on 3.9.2004 and thereafter even according to the own case of the

prosecution no further offence has been committed in pursuance of the

said conspiracy. The directions for freezing the accounts were issued

some time in 2005. It is also important to note that the order of the

High Court allowing the writ petition and setting aside the direction

issued regarding freezing of the accounts has attained finality as the

same has not been challenged in any higher forum. As rightly

observed by the High Court an organization (Mutt) cannot be

paralysed or closed down by issuing a direction under Section 102

Cr.P.C. only for the reason that the head of the Mutt and few office

bearers are alleged to be involved in some offence. The freezing of all

the accounts of the Mutt and its associated trusts and endowments is a

clear pointer to the fact that the State machinery anyhow wants to

paralyse the entire working of the Mutt and the associated trusts and

endowments in order to put pressure upon the petitioner and other co-

accused who are in any manner connected with the Mutt so that they

may not be able to defend themselves. It is indeed surprising that in

spite of clear language used in sub-Section (1) of Section 102 Cr.P.C.

to the effect any police officer may seize any property which may be

alleged or suspected to have been stolen, or which may be found

under circumstances which create suspicion of the commission of any

office all the 183 accounts were frozen merely on the ground that

the head of the Mutt was involved in the murder case. The action of

freezing the accounts demonstrates as to what extent the State

machinery can go while prosecuting the petitioner in the

Sankararaman murder case.

contd...