National

Babri case: SC for concluding joint trial, including one against Advani and other top BJP leaders, in 2 years

Krishnadas Rajagopal New Delhi | Updated on January 15, 2018 Published on April 06, 2017

advani

Indicates it will transfer demolition related trial in Rae Bareilly against top BJP leaders to Lucknow, where CBI court is hearing conspiracy and other serious criminal charges against "lakhs of unknown kar sevaks" for the razing down of the 15th century masjid.

The Supreme Court on Thursday indicated that it will use its extraordinary powers under Article 142 of the Constitution to transfer the Babri Masjid demolition related trial in Rae Bareilly against top BJP leaders L.K. Advani and Murli Manohar Joshi to Lucknow, where a CBI court is hearing conspiracy and other serious criminal charges against "lakhs of unknown kar sevaks" for the actual act of razing down the 15th century mosque.

A Bench of Justices P.C. Ghose and Rohinton Nariman, while reserving the judgment on the CBI's appeal to revive the conspiracy charges against BJP leaders, indicated during the morning hearing that it plans to order for a joint trial in Lucknow.

Evasion of justice

Terming the 25-year pendency in the Babri demolition trials an "evasion of justice," Justice Ghose said the Supreme Court plans to order the joint trial to be completed in two years.

"Kindly notice that this is a matter of 1992. Twenty-five years have passed. Our answer is have it on a day-to-day basis and finish it off in the next two years," he observed.

Justice Nariman at one point remarked how "many of the accused are dead and some will die now."

As far as the Rae Bareilly case is concerned, the court has examined 57 witnesses and have to examine another 105. In Lucknow, in the case against kar sevaks, 195 witnesses had testified before the trial court and it has to examine a whopping 800 more. The court said the pendency of the trial itself for so long was by itself an "evasion of justice".

Arguing for Mr Advani, senior advocate K.K. Venugopal countered that the Allahabad High Court had set aside the transfer of the Rae Bareilly case to Lucknow in February 2001. The Supreme Court had accepted the Uttar Pradesh government's discretion to continue the trial separately in Rae Bareilly and not club it with the Lucknow one.

A transfer of the Rae Bareilly trial to Lucknow will negate all the past orders. "Your Lordships' use of Article 142 should be in accordance with law and due process of law as guaranteed in Article 21. Your recent order on the highway liquor ban has rendered lakhs of people jobless," Mr. Venugopal hit back.

Additional Solicitor General and CBI counsel Neeraj Kishan Kaul said the February 2001 order of the High Court did not negate the joint charge sheet filed against Advani, Joshi and some known leaders of BJP and Hindutva groups.

The CBI said the High Court order of 2001 had said that a prima facie case of conspiracy has been made out against the leaders and it still stood against them.

"The HC had never said that the charge of criminal conspiracy introduced in the Lucknow FIR cannot be applied to the accused [Advani, Joshi, etc] in the Rae Bareilly FIR. The CBI has found an overarching conspiracy. Conspiracy as a charge still remains against them," Kaul argued.

Fresh chargesheet not required

Asked by the Bench about the practical difficulties of a joint trial in Lucknow, Kaul said witnesses have to recalled and trial may have to start "de novo [afresh]".

But senior advocate Kapil Sibal, arguing for petitioner Haji Mehboob, said the trial need not start anew. A joint trial would require only the granting of the right to an accused to recall and cross-examine witnesses. It does not require fresh charge sheet and framing of charges all over again.

On March 6, the Supreme Court indicated it may consider reviving the conspiracy charge against Advani, Joshi and other BJP leaders in the demolition case.

The sudden development came on an appeal filed by the CBI in 2011, during the UPA era, in the Supreme Court against the dropping of conspiracy charge against Advani and leaders such as Uma Bharti, Joshi, Vinay Katiyar, Sadhvi Ritambara, Giriraj Kishore and Vishnu Hari Dalmia.

Noting that “there is something very peculiar going on in this case” , the Bench of Justices Ghose and Nariman said it would examine in detail why the conspiracy charges against the BJP leaders were dropped on mere technical grounds and never revived all these years.

“We prima facie do not approve of the way these people have been discharged... And no additional chargesheet filed so far? See, people cannot be discharged like this on technical grounds,” Justice Nariman had observed orally.

“We will allow you (CBI) to file supplementary chargesheet by including the conspiracy charge. We will ask the trial court to conduct a joint trial in a Lucknow court,” he had said.

The CBI, represented by Additional Solicitor General Neeraj Kishan Kaul, seemed to agree with the court's observations and had submitted that a joint trial should be conducted. "This is what we want,” Mr. Kaul had submitted.

However, Venugopal had strongly objected to the turn of events and argued that the conspiracy charge against Advani and other leaders were already dropped, and its revival would mean the re-examination of the 186 witnesses who had deposed in the case. He pointed out that the CBI had appealed to the Supreme Court after an inordinate delay.

But the Bench remained adamant, saying it would choose to even condone the delay and hear the case on March 22, 2017.

History of the case

The Babri Masjid demolition case stemmed from two crime files: Crime No: 197/1992 and Crime No: 198/1992. Both were filed shortly after the disputed structure of Babri Masjid was demolished on December 6, 1992.

Crime no. 197/1992 was registered in the Ayodhya Police Station against “lakhs of unknown kar sevaks”. This FIR dealt with the actual demolition of the masjid. It lined up a bunch of serious offences, including robbery or dacoity with attempt to commit murder,causing hurt by an act endangering life or safety of others, deterring public servants from doing duty and promoting enmity between different religious groups. The most severe of these offences could get the offender up to 10 years in jail.

The second one, Crime no. 198/1992, was registered against 12 persons, including Ashok Singhal, Giriraj Kishore, Advani, Murli Manohar Joshi, Vishnu Hari Dalmiya,Vinay Katiyar, Uma Bharati and Sadhvi Ritambara, who were on the dais at Ram Katha Kunj when the masjid was being demolished.

They were accused of promoting enmity, making imputations and assertions prejudicial to national integrations and statements conducing to public mischief. Maximum punishment, if found guilty for these offences, was up to five years'’ imprisonment. The cases are being tried in courts in Lucknow and Rae Bareilly, respectively.

The CBI took over Crime 197 in Lucknow, while 198 remained with the State CID in Rae Bareilly. Eventually 198 also got transferred to the CBI and began being heard in the Lucknow Court.

Now with CBI investigating both crimes as one, a joint charge sheet was filed on October 5, 1993 accusing Advani and other top parivar leaders of conspiracy.

The CBI chargesheet had alleged that a secret meeting took place at the residence of Katiyar on the eve of the demolition during which the final decision to bring down the disputed structure was taken. The Special Judicial Magistrate and the Additional Sessions Court also found the conpsiracy prima facie tenable.

However, in February 2001, the Lucknow Bench of the Allahabad High Court found a technical error in the manner Crime 198 was transferred to the CBI without consulting the High Court. Though it did not touch upon the conspiracy charge against the top leaders, the High Court asked the Uttar Pradesh government to correct the flaw. Subsequent governments failed to act and Crime 198 finally got detached and returned to Rae Bareilly.

On May 4, 2001, Special Judge, Lucknow, Shrikant Shukla, dropped the conspiracy charge against Advani and 20 others on the ground that Crime 197 – the Special Court was only trying this crime – was only regarding the actual demolition and not the hatching of any conspiracy. On May 20, 2010, the Allahabad High Court upheld Judge Shukla's order while dismissing the CBI's revision petition.

Arguing before the Supreme Court in its appeal on February 19, 2011, the CBI submitted that Judge Shukla made an “artificial distinction” in the demolition case in order to drop the names of Mr. Advani and the 20 others for the reason that they did not participate in the “actual demolition”. The CBI called for a joint trial of both Crime nos. 197 and 198 like how they did previously.

“Acts of instigation, facilitation, the actual demolition of the masjid, the continuous assault on media persons, thus, form a single connected transaction and can well be a concerted conspiracy under Section 120-B of the IPC. In respect of continuous criminal act attracting various offences, the transaction has to be viewed in as a whole and evidence cannot be led at two different courts,” the CBI said in its 2011 appeal.

In his defence, Mr. Advani had argued that the entire endeavour of the CBI to file a composite charge sheet and foist conspiracy charges against him and the other leaders during the UPA government's time was a politically motivated one. He had claimed that the Special Court, in 2001, rightly came to the firm conclusion that it had no jurisdiction to hear the charge of conspiracy. He defended that the CBI's appeals were sheer abuse of law.

(This news report was first published in The Hindu online edition)

Published on April 06, 2017
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