Holding

The Court held that prima facie a strong case exists for granting bail to the petitioner, and the High Court's denial was unwarranted.

Summary

The petitioner, Jayendra Saraswati Swamigal, the Shankaracharya of Kanchi Mutt, was arrested on charges of conspiring to murder Sankararaman, an administrative manager. The prosecution alleged that the deceased had lodged complaints against the petitioner and that the petitioner offered Rs 50 lakhs to hired men to kill him, relying on recovered letters, confessional statements of co‑accused, and a purported dying declaration. The defence argued that there was no prima facie case: the letters recovered from the deceased’s house did not prove the petitioner’s knowledge; the cash allegedly used to pay the hit‑men was deposited in a bank account; confessions of co‑accused are weak evidence under Section 30 of the Evidence Act; the dying declaration did not fall within Section 32; and Section 437(1)(i) could not bar bail. The Supreme Court examined the factors for bail in non‑bailable offences and concluded that a prima facie case for bail existed, setting aside the High Court’s refusal and granting bail with conditions.

Issues considered

Whether a prima facie case exists against the petitioner justifying denial of bail under Sections 437 and 439 of the CrPC.
Whether confessions of co‑accused are admissible to establish conspiracy under Section 10 of the Evidence Act.
Whether the letters recovered from the deceased’s house prove the petitioner’s knowledge or participation.
Whether the alleged withdrawal of Rs 50 lakhs and its subsequent deposit affect the bail decision.
Whether the dying declaration recorded under Section 164 CrPC is admissible under Section 32 of the Evidence Act.
Whether Section 437(1)(i) of the CrPC bars bail in a non‑bailable offence punishable with death or life imprisonment.

Legislation cited

Code of Criminal Procedure, 1973s. 437, s. 439
Indian Evidence Act, 1872s. 10, s. 30, s. 32

Subjects

bailnon‑bailable offenceconspiracyevidenceconfessiondying declarationSection 10 Evidence ActSection 30 Evidence ActSection 32 Evidence ActSection 437 CrPCSection 439 CrPCKanchi Muttmurder

Judgment

A JA YENDRA SARAS WA THI SWAMIGAL
v. '•
STATE OF TAMIL NADU

JANUARY IO, 2005

B
[R.C. LAHOTI, CJ., G.P. MATHUR AND P.P. NAOLEKAR, JJ.]

Code of Criminal Procedure, 1973-Sections 437, 439; Evidence Act,
Section I 0, 30-Bail-Grant of-Accused is entitled to bail only when there
C is no prima facie case against him-Conspiracy and murder-Allegation that
deceased had made serious complaints against accused and told witnesses of
danger to his life has little value in the absence of evidence to indicate that
these complaints were made known to accused or' he had shown any resentment
against deceased for making such complaints-Confession of co-accused not
D admissible as there is no strong proof of conspiracy-Prima facie case made
out for grant of bail.

Bail in Non-bailable offences-Relevant factors while granting-
Discussed.

Evidence Act, 1872, Section 32-Dying declaration-Deposition of
E witness that deceased informed him about danger to his life does not relate
to cause of his death so as to fall under Section 32, hence not admissible in
evidence.

Prosecution case was that petitioner-appellant entered into a
F conspiracy to kill the deceased with the help of co-accused. The co-accused
entered the office of the deceased in the evening and caused multiple
injuries to him resulting in his death. It is alleged that motive for crime
was various complaints alleged to have been made by the deceased levelling
serious allegations, both against personal character of petitioner and also
his style of functioning as Shankaracharya of the Mutt. A month before
G crime, deceased had sent letter as last warning levelling various allegations.

Petitioner was arrested for the offence. He moved bail petition before
High Court, which was rejected. His second bail petition was also rejected.
Hence present appeal.
160
H
JA YENDRA SARAS WA THI r. STATE OF TAMIL NADU 161
Petitioner-appellant contended that the specific case of the A
I l prosecution at the time of the hearing of the two bail applications before
the High Court was that a huge sum of money amounting to Rs.SO lakhs
was withdrawn from an account of the Mutt maintained in ICICI Bank,
for making payment to the hirelings. In this court, State was directed to
give particulars of the bank account for such transactions and also to
produce the copy of the account and the passbook. However State took a B
different stand that an agreement had been entered into for sale of SO acres
of land belonging to Kanchi Janakalyan Trust for Rs.S crores, wherein
an advance of Rs. SO lakhs in cash was received. It was this money which
was retained in cash by the petitioner all along from which payment was
made to the hirelings after the conspiracy was hatched; that in view of c
Section 30 of the Evidence Act confession of a co-accused is a very weak
type of evidence which can only be taken into consideration to lend
assurance to the prosecution case; that confession of A-4 came to be
retracted subsequently and also that of A-2 have very little evidentiary
value in order to sustain the charge against him.
D
Prosecution relied upon copies of 39 letters, which were allegedly
recovered from the house of the deceased himself and confessional
). statement of A-2 and A-4 stating that petitioner offered Rs.SO lakhs for
getting rid of the deceased. Prosecution contended that in view of Section
IO of the Evidence Act, anything said, done or written by any one of the
E
accused is a relevant fact as against each of the persons conspiring to
commit a crime; that there is also evidence of dying-declaration in order
to fasten the liability upon the petitioner and for this reliance is placed
upon the statement of SV, who stated that he knew deceased and used to
talk to him and on the fateful day, he had contacted him over phone and
told him that his petition presented to HR&CE Department was numbered F
and if any danger came to him, petitioner alone would be responsible for
the same; that there are two other witnesses who have heard the petitioner
telling some of the co-ac.cused to eliminate the deceased; that the
prohibition contained in Section 437(1)(i) Cr.P.C. would be applicable to
the Courts entertaining a bail petition under Section 439 Cr.P.C.
G
Allowing the appeal, the court

• HELD: I.I The considerations which normally weigh with the Court
in granting bail in non-bailable offences are-the nature and seriousness
of the offence; the character of the evidence; circumstances which are
H
162 SUPREME COURT REPORTS [2005) 1 S.C.R.

A peculiar to the accused; a reasonable possibility of the presence of the
accused not being secured at the trial; reasonable apprehension of ' ;
witnesses being tampered with; the larger interest of the public or the State
and other similar factors which may be relevant in the facts and
circumstances of the case. 1171-B-CI

B 1.2. In the instant case, prima facie a strong case has been made out
for grant of bail. (171-E]

2.1. The recovery of 39 letters from the house of the deceased is not
a proof of the fact that they were actually received by petitioner or were r
C brought to his notice. (165-Hf
2.2. The deceased was not an employee of the Mutt but was working
as In-charge Administrative Manager of another Dharamsthanam which
has nothing to do with Kanchi Mutt. Though according to the prosecution,
the deceased had started making complaints against the petitioner for last
D 3 years prior to incident, there is absolutely no evidence collected in
investigation that the petitioner made any kind of protest or took any kind
of action against the deceased. Even otherwise, many letters or complaints
etc. are addressed to people holding high office or position and it is not
necessary that they read every such letter or complaint or take them
seriously. The.re is absolutely no evidence or material collected in
E investigation to indicate that the petitioner had ever shown any resentment
against the deceased for having made allegations against either his
personal character or the discharge of his duties as Shankaracharya of
the Mutt. The petitioner having kept absolutely quiet for over three years,
it does not appeal to reason that he suddenly decided to enter into a
F !:onspiracy for eliminating the deceased. (166-A-D)

3. No documents of the account in ICICI Bank have been produced
in support of the plea taken twice by the prosecution before the High Court
while opposing the prayer for bail. A-23 who is Manager of the Mutt had
stated that he had received Rs.SO lakhs in cash. The statement of account
G clearly shows that after deposit of the aforesaid amount the entire
overdraft was cleared. This belies the prosecution case, which was
developed subsequently after the order had been passed by this Court
directing the State to produce copy of the ICICI Bank account, that the
cash money was retained by the Petitioner from which substantial amount
was paid to the hirelings. (167-A, B; 167-E-Ff
H
JAYENDRA SARASWATl-111·. STATE OF TAMIL NADU 163
4.1. The opening words in Section I 0 are "where there is reasonable A
ground to believe that two or more persons have conspired together to
commit an offence". If primafacie evidence of the existence of a conspiracy
is given and accepted, the evidence of acts and statements made by anyone
of the conspirators in furtherance of the common object is admissible
against all. There is no prima facie evidence that the person was a party B
to the conspiracy before his acts or statements can be used against his co-
conspirators. Here, the confessions of A-2 and A-4 were recorded long after
the murder when the conspiracy had culminated and, theo-tfore, Section
10 of the Evidence Act cannot be pressed into service. However, no
concluded opinion is expressed on this question in the present case as the
matter relates to grant of bail only and the question may be examined C
more deeply at the appropriate stage. !169-C-D; 170-A-B)

State of U.P. v. Butta Singh, 1197911 SCC 31; State of Maharashtra,
v. Damu, 120001 6 SCC 269; Firozuddin Basheeruddin and Ors. v. State of
Kera/a, (2001) 7; SCC 596; Prakash Dhawal Khairnar v. State of
Maharashtra, (2002) 2 SCC 35; State of H.P. v. Satya Dev Sharma and Ors., D
12002110 SCC 601 and Mirza Akbar v. King Emperor, AIR (1940) PC 176,
referred to.

4.2. The names and identity of witnesses who had heard the petitioner
telling some co-accused to eliminate the deceased have not been disclosed
on the ground that the interrogation is still in progress. However, these E
persons are not employees of the Mutt and are strangers. It Joo ks highly
improbable that the petitioner would talk about the commission of murder
at such a time and place where his talks could be heard by total strangers.
1170-GI

5. Since the telephonic conversation which the deceased had with SV,
F
did not relate to the cause of his death or as to any of the circumstances
of the· transaction which resulted in his death, the same does not come
within the purview of Section 32(1) of the Evidence Act and is thus not
admissible in evidence. 1170-DI
G
State v. Capt. Jagjit Singh, AIR (1962) SC 253 and Gurcharan Singh,
v. State (Delhi Admn.). AIR (1978) SC 179, relied on.

Bhuboni Sahu v. The King, AIR (1949) PC 257; Kashmira Singh v. State
of M.P., AIR (1952) SC 159 and Haricharan Kurmi v. State of Bihar, AIR
(l 964) SC 1184, referred to. H
;

164 SUPREME COURT REPORTS [2005] I S.C.R.

A Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.,
120041 7 sec 528, held inapplicable. '· I

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 44
of 2005.

B From the Judgment and Order dated 8.12.2004 of the Madras High
Court in Crl. O.P. No. 36748 of 2004.

F.S. Nariman, V.R. Manohar, I. Subramaniam, K.R. Vijayakumar, D.S.
Arunachalam, Subhash Sharma, Krishna Kumar and Arun Anbumani for the
C Appellant.

K.T.S. Tulsi, K. Doraiswamy, Subramonium Prasad, Abbay Kumar and
R. Gopalakrishnan for the Respondent.

The Judgment of the Court was delivered by
D
G.P. MA THUR, J. I. Leave granted.

2. This appeal, by special leave, has been preferred against the order
dated 8.12.2004 of Madras High Court, by which the petition for bail filed
by the petitioner under Section 439 Cr.P.C. was rejected.
E
3. An F.l.R 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
F injuries to Sanakararaman, In-charge Administrative Manager, who was sitting
on a chair. Three persons were waiting outside and the assailants escaped on
their motor cycles. After the case was registered, necessary investigation
followed and several persons have been arrested. According to the case of the
prosecution, the actual assault upon the deceased was made by A-6 and A-
7, while four persons, namely, A-5, A-8, A-9 and A-10 were standing outside.
G
4. The petitioner, Shri Jayendra Saraswathi Swamigal, who is the
Shankaracharya of Kanchi Mutt, Kanchipuram, was arrested on 11.11.2004
from Mehboob Nagar in Andhra Pradesh. He moved a bail petition before the
High Court of Madras, which was rejected on 20.11.2004 and the second bail
petition was also rejected by the impugned order dated 8.12.2004.
•
H
JAYENDRA SARASWATHI r. STATE OF TAMIL NADU [G.r. MATHUR, J.] 165

5. According to the case of the prosecution, the petitioner had entered A
1> 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. In the reply statement
filed on behalf of State of Tamil Nadu, it is averred that the deceased had
B
filed a complaint before the Commissioner HR&CE not to allow the petitioner
to visit China. He filed a writ petition in the Madras High Court claiming the
same relief which was later on dismissed as a statement was made by the
petitioner that he had no intention of going to the said country. The deceased
sent several letters alleging that the petitioner was selling properties of thec
Mutt; was indulging in corruption and misappropriation of funds. He also
made complaint before Special Commissioner, HR&CE that the petitioner
was not observing the rules of Sanyasa Asrama Dharrna; was leading a
luxurious life enjoying mundane comforts; not performing the Pooja and
promoting commercial ventures. It is also the case of the prosecution that the
deceased sent a letter under the name of Somasekara Ganapadigal alleging D
that the petitioner was indulging in immoral activities and was having
relationship with women and finally a letter was sent by him on 30.8.2004
to the petitioner as "last warning" wherein it was said that when the petitioner
went to Thalakeverj, Kaveri river dried; when he went to the only Hindu
Kingdom of Nepal, the entire royal family was wiped out; and when he went E
to Kumbakonam, there was a fire tragedy and many innocent lives were lost.
Shri K.T.S. Tulsi, learned senior counsel for the State, has submitted that
after receipt of this letter dated 30.8.2004 described as "last warning", the
petitioner called accused A-2, A-3 and A-4 and a conspiracy was hatched for
eliminating the deceased.
F
6. In order to establish the aforesaid motive for commission of crime,
.)., the prosecution relies upon copies of 39 letters which were allegedly recovered
from the house of the deceased himself. What the prosecution claims is that
the deceased used to keep copies of all the letters and complaints which he
made against the petitioner and it is these copies which have been recovered
from the house of the deceased. The prosecution claims that of these 39
G
letters or complaints 5 complaints were found in the office of HR&CE,
Chennai which relate to the period 14.8.200 I to 23.1.2002, one in the residence
of A-4 and 2 in the residence of the petitioner. In our opinion, the recovery
of these letters from the house of the deceased himself is not a proof of the
fact that they were actually received by the petitioner or were brought to his H
166 SUPREME COURT REPORTS [2005] I S.C.R.

A notice. The deceased was not an employee of the Mutt but was working as
In-charge Administrative Manager of another Dharamsthanam which has .._ 1
nothing to do with Kanchi Mutt and at least since I998 he had no connection
with the said Mutt. Though according to the case of the prosecution, the
deceased had started making complaints against the petitioner since August
B 200 I, there is absolutely no evidence collected in investigation that the
petitioner made any kind of protest or took any kind of action against the
deceased. Even otherwise, many letters or complaints etc. are addressed tQ
people holding high office or position and it is not necessary that they read
every such letter or complaint or take them seriously. There is absolutely no
evidence or material collected so far in investigation which may indicate that
C the petitioner had ever shown any resentment against the deceased for having
made allegations against either his personal character or the discharge of his
duties as Shankaracharya of the Mutt. The petitioner having kept absolutely
quiet for over three years, it does not appeal to reason that he suddenly
decided to have Sankararaman murdered and entered into a conspiracy for
the said purpose.
D
7. Shri F.S. Nariman, learned senior counsel for the petitioner, has
submitted that the specific case of the prosecution at the time of the hearing
of the first bail application before the High Court was that a huge sum of
money amounting to Rs.50 lakhs was withdrawn from an account of the Mutt
E maintained in ICICI Bank, Kanchipuram for being paid to the hirelings. The
same stand was taken by the prosecution when the second bail application
was heard by the High Court. In the two orders passed by the High Court by
which the bail petitions were rejected, the plea of the State that the money
was withdrawn from the account of the Mutt in ICICI Bank, Kanchipuram
for payment to the hirelings is clearly mentioned. When the special leave
F petition was heard for admission on 17.12.2004, a detailed order was passed
by this Court, wherein the State was directed to give particulars of the bank
account wherefrom money is alleged to have been withdrawn by the petitioner
for payment to the assailants and also to produce the copy of the account and
the passbook, if any, seized by the ;nvestigating agency. However, in the
G statement in reply which has been filed in this Court by the State on 6. I .2005,
a different stand is taken that an agreement had been entered into for sale of
50 acres of land belonging to Kanchi Janakalyan Trust to Bhargava Federation
Pvt. Ltd. for Rs.5 crores, wherein an advance of Rs.50 lakhs in cash was
received on 30.4.2004 and an endorsement regarding receipt of the said
amount was made on the reverse side of the first page of the agreement. It
H was this money which was retained in cash by the petitioner all along from
'
.IAYENDRA SARASWATHI v. STATE OF TAMIL NADU [G.P. MATHUR, J.] 167.

,.... which payment was made to the hirelings after the conspiracy was hatched A
soon after the receipt of the alleged letter dated 30.8.2004 sent by the deceased
which was described as "last warning". No documents of the account in
ICICI bank have been produced in support of the plea which was twice taken
by the prosecution before the High Court while opposing the prayer for bail
made by the petitioner.
B
8. N. Sundaresan (A-23) who is Manager of the Mutt was arrested on
24.12.2004 and was produced before the Judicial Magistrate, Kanchipuram at
.,. 1.45 p.m. on 25. I2.2004. He stated before the Magistrate that he had received
Rs. 50 lakhs in cash on 30.4.2004 and the said amount was deposited in
Indian Bank, Sankara Mutt Branch on 7.5.2004. Learned counsel for the
petitioner has placed before the Court copies of two accounts bearing nos.124
c
and 125 which the Kanchi Kamakothi Peetham Shri Sankaracharya Swam
has in the Indian Bank at No. I, Salai Street, Kanchipuram. This statement of
account shows that on 7.5.2004 an amount of Rs. 28,24,225 was deposited
in cash in account no.124 and an amount of Rs. 21,85,478 was deposited in
cash in account no.125. Thus the total amount which was deposited in cash D
comes to Rs. 50,09,703. Learned counsel has explained that in addition to
Rs.50 lakhs which received in cash an extra amount of Rs.9,703 was deposited
in order to liquidate the overdraft over which penal interest was being charged
by the bank. The statement of account clearly shows that after deposit of the
aforesaid amount the entire overdraft was cleared. This clearly shows that the
E
entire amount of Rs.50 lakhs which was received in cash on 30.4.2004 was
deposited in Bank on 7.5.2004. This belies the prosecution case, which was
developed subsequently after the order had been passed by this Court on
17.12.2004 directing the State to produce copy of the ICICI Bank account,
that the cash money was retained by the Petitioner from which substantial
amount was paid to the hirelings. F

" 9. The prosecution also relies upon confessional statement ofKathiravan
(A-4) recorded under Section I 64 Cr.P.C. on 19. I 1.2004, wherein he stated
that he went to the Kanchi Mutt on 1.9.2004 and in the presence of Ravi
Subramaniam and Sundaresan, the petitioner said that Sankararaman had
written letters and had filed cases and it was not possible for him to bear the G
torture any longer and, therefore, he should be killed on the same day. It is
important to mention here that A-4 retracted his confession on 24.11.2004
when his statement was again recorded under Section 164 Cr.P.C. The
prosecution also relies upon confession of Ravi Subramaniam (A-2) which
was recorded on 30.12.2004 wherein he made a similar statement that the H
168 SUPREME COURT REPORTS [2005] 1 S.C.R.

A petitioner offered him Rs.50 lakhs on l.9.2004 for getting rid ofSankararaman. 4'.

10. Shri Nariman has submitted that in view of Section 30 of the
Evidence Act confession of a co-accused is a very weak type of evidence
which can at best be taken into consideration to lend assurance to the
prnsecution case. He has referred to the decision of the Privy Council in
B Bhuboni Sahu v. The King, AIR (1949) PC 257, wherein it was observed that
confession of a co-accused is obviously evidence of a very weak type and it
does not come within the definition of evidence contained in Section 3 as it
is not required to be given on oath, nor in the presence of the accused and
it cannot be tested by cross-examination. Learned counsel has also referred
C to Kashmira Singh v. State of M.P., AIR (1952) SC 159 where it was held
that the confession of an accused person is not evidence in the ordinary sense
of the term as defined in Section 3 and it cannot be made the four:dation of
a conviction and can only be used in support of other evidence. It was further
observed that the proper way is, first to marshal! the evidence against the
accused excluding the confession altogether from consideration and see
D whether, if it is believed a conviction could safely be based on it. If it is
capable of belief independently of the confession, then of course it is not
necessary to call the confession in aid. But cases may arise where the Judge
is not prepared to act on the other evidence as it stands even though, if
believed , it would be sufficient to sustain a conviction. In such an event the
E Judge may call in aid the confession and use it to lend assurance to the other
evidence and thus fortify himself in believing such evidence which without
the aid of the confession he would not be prepared to rely on for basing a
finding of guilty. Reliance has also been placed upon the Constitution Bench
decision in Haricharan Kurmi v. State of Bihar, AIR (1964) SC 1184, where
it was held that the Court cannot start with the confession of a co-accused
F person; it must begin with other evidence adduced by the prosecution and
after it has formed its opinion with regard to the quality and effect of the said
evidence, then it is permissible to turn to the confession in order to receive
assurance to the conclusion of guilt which the judicial mind is about to reach
on the said other evidence. It was further observed that the confession of a
G co-accused person cannot be treated as substantive evidence and can be pressed
into service only when the Court is inclined to accept other evidence and
feels the necessity of seeking for an assurance in support of its conclusion
deducible from the said evidence. It has thus been urged that the confession
of A-4 which was retracted by him subsequently and also that of A-2 have
very little evidentiary value in order to sustain the charge against the petitioner.
'
H
.IAYENDRA SARAS WA THI 1·. STATE OF TAMIL NADU [G.P. MATHUR, J.] 169

,~ 11. Shri K.T.S. Tulsi, learned senior counsel, has, on the other hand, A
placed strong reliance on Section I0 of the Evidence Act and has submitted
that this being a specific provision dealing with a case of conspiracy to
commit an offence, the principle laid down in the authorities cited by Shri
Nariman would not apply and anything said, done or written by any one of
the accused is a relevant fact as against each of the person conspiring to
commit a crime. In this connection he has referred to State of UP. v. Bula B
Singh, [1979] I SCC 31, State of Maharashtra v. Danrn, [2000] 6 SCC 269,
Firozuddin Basheeruddin and Ors. v. State of Kera/a, [2001] 7 SCC 596,
.,...
Prakash Dhawal Khairnar V. State of Maharashtra, [2002] 2 sec 35 and
State of H.P. V. Satya Dev Sharma and Ors., [2002] 10 sec 601.

12. The opening words in Section I 0 are "where there is reasonable
c
ground to believe that two or more persons have conspired. together to commit
an offence". If prima facie evidence of the existence of a conspiracy is given
and accepted, the evidence of acts and statements made by anyone of the
conspirators in furtherance of the common object is admissible against all. ~
Therefore, there should first be a prima facie evidence that the person was D
a party to the conspiracy before his acts or statements can be used against his
co-conspirators. No worthwhile prima facie evidence apart from the alleged
"" confessions have been brought to our notice to show that the petitioner along
with A-2 and A-4 was party to a conspiracy. The involvement of the petitioner
and A-2 and A-4 in the alleged conspiracy is sought to be established by the
E
confessions themselves. The correct import of Section I 0 was explained by
the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor,
AIR (1940) PC I 76 as under :

"The words of S. I 0 are not capable of being widely construed so
as to include a statement made by one conspirator in the absence of F
the other with reference to past acts done in the actual course of
carrying out the conspiracy, after it has been completed. The words
"common intention" signify a common intention existing at the time
when the thing was said, done or written by one of them. Things said,
done or written while the conspiracy was on foot are relevant as
evidence of the common intention, once reasonable ground has been G
shown to believe in its existence. But it would be a very different
. matter to hold that any narrative or statement or confession made to
a third party after the common intention or conspiracy was no longer
operating and had ceased to exist is admissible against the other
party. There is then no common intention of the conspirators to which H
170 SUPREME COURT REPORTS [2005] I S.C.R.

A the statement can have reference."

Here, the confessions of A-2 and A-4 were recorded long after the
murder when the conspiracy had culminated and, therefore, Section 10 of the
Evidence Act cannot be pressed into service. However, we do not feel the
necessity of expressing a concluded opinion on this question in the present
B case as the matter relates to grant of bail only and the question may be
examined more deeply at the appropriate stage.

13. Shri Tulsi has also submitted that there is also evidence of dying-
declaration in order to fasten the liability upon the petitioner and for this
reliance is placed upon the statement of S. Vaidyanathan, which was recorded
C under Section 164 Cr.P.C. on 28.12.2004. This witness has merely stated that
he knew deceased Sankararaman and used to talk to him and further that at
1.30 p.m. on 3.9.2004 Sankararaman contacted him over phone and told him
that his petition presented to HR&CE Department was numbered and if any
danger came to him, Jayendra alone will be responsible for the same. Since
D the telephonic conversation which the Sankararaman had with this witness,
did not relate to the cause of his death or as to any of the circumstances of
the transaction which resulted in his death, the same does not come within
the purview of Section 32(1) of the Evidence Act and is not admissible in
evidence.

E 14. Shri Tulsi, learned senior counsel for the respondent, has also referred
to certain other pieces of evidence which, according to him, showed the
complicity of the petitioner with the crime in question. He has submitted that
the petitioner had talked on phone to some of the co-accused. The material
placed before us does not indicate that the talk was with A-6 and A-7 who
are alleged to have assaulted the deceased or with A-5, A-8, A-9 and A-10,
F who are alleged to have been standing outside. Learned counsel has also
submitted that there are two other witnesses who have heard the petitioner
telling some of the co-accused to eliminate the deceased. The names and
identity of these witnesses have not been disclosed on the ground that the
interrogation is still in progress. However, these persons are not employees
G of the Mutt and are strangers. It looks highly improbable that the petitioner
would talk about the commission of murder at such a time and place where
his talks could be heard by total strangers.
.
15. Shri Tulsi has lastly submitted that the prohibition contained in
Section 437(l)(i) Cr.P.C. that the class of persons mentioned therein shall not
H be released on bail, if there appears to be a reasonable ground for believing
JAYENDRA SARASWATHI 1-. STATE OFTAMIL NADU [G.P. MATHUR,J] J 7]

.... that such person is guilty of an offence punishable with death or imprisonment A
for life, is also applicable to the Courts entertaining a bail petition under
Section 439 Cr.P.C. In support of this submission, strong reliance has been
placed on a recent dedsion of this Court in Kalyan Chandra Sarkar v. Rajesh
Ranjan @ Pappu Yadav and Anr,, (2004] 7 SCC 528. The considerations
which normally weigh with the Court in granting bail in non-bailable offences B
have been explained by this Court in State v. Capt. J~gjit Singh, AIR ( 1962)
SC 253 and Gurcharan Singh v. State (Delhi Admn), AIR (1978] SC 179
and basically they are - the nature and seriousness of the offence; the character
-,. of the evidence; circumstances which are peculiar to the accused; a reasonable
possibility of the presence of the accused not being secured at the trial;
reasonable apprehension of witnesses being tampered with; the larger interest C
of the public or the State and other similar factors which may be relevant in
the facts and circumstances of the case. The case of Kalyan Chandra Sarkar
(supra) was decided on its own peculiar facts where the accused had made
7 applications for bail before the High Court, all of which were rejected
except the 5th one which order was also set aside in appeal before this Court. D
The 8th bail application of the accused was granted by the High Court which
order was subject matter of challenge before this Court. The observations
made therein cannot have general application so as to apply in every case
including the present one wherein the Court is hearing the matter for the first
time.
E
16. For the reasons discussed above, we are of the opinion that prima
facie a strong case has been made out for grant of bail to the petitioner. The
appeal is accordingly allowed and the impugned order of the High Court is
set aside. The petitioner shall be released on bail on his furnishing a personal
bond and two sureties to the satisfaction of the Chief Judicial Magistrate, F
Chengleput. Shri Nariman has made a very fair statement that till the
investigation is under progress, the petitioner shall not visit the Mutt premises.
We accordingly direct that till the submission of the charge sheet in Court,
the petitioner shall not visit the Mutt premises. He shall also surrender his
passport before the CJM.
G
17. Before parting, we would Iike to place it on record by way of
abundant caution that whatever has been stated hereinabove in this order has
been so said only for the purpose of disposing of the prayer for bail made by
the petitioner. Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for decision in H
172 SUPREME COURT REPORTS [2005] I S.C.R.

A the case which shall naturally have to be done by the trial court seized of the "'
trial. We have only formed a prima facie opinion and placed the same on '
record in fairness to the learned senior counsel for the State who raised those
pleas and vehemently urged the same by citing various provisions of law and
the authorities.

B D.G. Appeal allowed.