Will Reopening Ayodhya Issue Bring Forth Justice?

By: Parman Pandey, Advocate Supreme Court

Supreme Court is supreme not because it is infallible but because it is final, has been said number without times. The recent judgment of the Supreme Court in the ‘State (through) Central Bureau of Investigation Versus Shri Kalyan Singh (former CM of UP) & Ors.’ proves the rule. The disputed structure in Ayodhya was razed on 6th December 1992 in the presence of top leadership of the Bhartiya Janta Party (Party), which included L.K. Advani, Murali Manohar Joshi, Uma Bharti and Vijay Katiyar etc. The present Governor of Rajasthan Kalyan Singh was the then Chief Minister of Uttar Pradesh, who was later jailed for a day under the Contempt of Court because he had given undertaking in the Supreme Court that he would ensure that the law and order would be fully maintained but the multitude of the crowd got uncontrolled and the dilapidated building was pulled down.

Skipping details about the dispute and the events that followed the important point is that two FIR’s were lodged. The first was against lakhs of kar sewaks alleging the offences of dacoity, robbery, causing of hurt, injuring/defiling places of public worship, promoting enmity between two groups on grounds of religion, etc. and the second was lodged against eight persons named therein – L.K. Advani, Ashok Singhal, Vinay Katiar, Uma Bharati, Sadhvi Ritambara, Murli Manohar Joshi, Giriraj Kishore and Vishnu Hari Dalmia, two of whom are now dead. The CBI filed charge sheet in both FIRs but the case of conspiracy under section 120-B was struck down by the Court.

The Court said conspiracy is hatched in secrecy and its knowledge comes slowly but in the Ayodhya dispute case, there was no secrecy.

In ‘Kehar Singh vs. State of Delhi’, the Supreme Court said ‘whatever works are of conspiracy is entrusted to a person he does not and a person does not have the knowledge of the work done by another person till that work is not completed’ but in the present case, the conspiracy theory is completely failed. Supreme Court has held that ‘if in one course of occurrence different offences are committed by different accused then their examination can be done conjointly.

In the present case keeping in mind the criminal conspiracy which was in regard in the felling of Ram Janm Bhumi/Babri Masjid structure and in that context whatever acts have been done shall be deemed to have been in the course of one occurrence.’ Even then the Court concluded that in the present case the criminal conspiracy of felling down of the disputed structure was commenced by the accused from 1990 and it was completed on 6thDecember 1992. Leaders like; Lal Krishan Advani and others at different times and at different places made schemes of criminal conspiracy of demolishing the above disputed structure.

Criminal Revision Petitions were filed against the order on 9th September, 1997. By a Judgment dated 12th February, 2001, the High Court of Allahabad, Lucknow Bench held that, ‘No illegality was committed by the Court below while taking cognizance of a joint charge sheet on the ground that all the offences were committed in the course of the same transaction and to accomplish a criminal conspiracy. The evidence for all the offences is almost the same and, therefore, these cannot be separated from each other irrespective of the fact that different FIRs were lodged.

The offences regarding criminal conspiracy and common object of an unlawful assembly are prima facie made out and since these offences are alleged to have been committed in the course of the same transaction, the Special Court rightly took cognizance of the same and committed the same to the Court of Session.’ The CBI accepted the aforesaid Judgment and requested the Chief Secretary, Government of UP to rectify the defect in the notification dated 8th October, 1993 on 16th June, 2001. The State Government rejected the said request for curing the defect on 28th September, 2002.

This rejection was not challenged by the C.B.I.

Meanwhile, an SLP was filed by one Mohd. Aslam alias Bhure, a public interest petitioner, challenging the order dated 12th February, 2001. This was dismissed by this Court on 29th November, 2002.

A review against this order was dismissed by a speaking Order dated 22nd March, 2007. A curative petition was also dismissed thereafter on 12th February, 2008.

From this it can be seen that the order dated 12th February, 2001 is final and can be regarded as res judicata. Given that the State Government rejected the request for curing the defect in the notification dated 8th October, 1993, the CBI, instead of challenging the rejection, filed a supplementary charge sheet against the eight accused persons for offences under Sections 153A, 153B, 505 read with Sections 147 and 149 IPC before the Judicial Magistrate at Raebareli. Charges were framed under these Sections against the said accused persons. Insofar as the other group of 13 persons is involved, again, for reasons best known to the CBI, the CBI did not proceed against them at all.  It was further held that if the CBI had any evidence of conspiracy it can file a supplementary charge sheet before the Court at Raebareli, which was seized of Crime No. 198 of 1992.

Holding that from the very beginning two separate FIRs were filed because of two different places of occurrence and different nature of accusations, the judgment then went on to impugn the CBI’s preparing a joint charge-sheet for all and ultimately found that there is no illegality or impropriety in the impugned order dated 4th May, 2001. The High Court, therefore, by the impugned order, dismissed the revision filed against the said order.

The Supreme Court said ‘we have heard the learned counsel for the parties. We are of the view that the judgment dated 12th February, 2001, clearly and unequivocally holds that a joint charge sheet had been filed by the CBI on the ground that all the offences were committed in the course of the same transaction to accomplish the conspiracy alleged. The evidence for all these offences is almost the same and these offences, therefore, cannot be separated from each other, irrespective of the fact that 49 different FIRs were lodged. It is clear that in holding to the contrary, the impugned judgment, which upheld the judgment dated 4th May, 2001, is clearly erroneous.’

Using the extra-ordinary, powers which are vested in the Supreme Court of India by virtue of Article 142 of the Constitution for doing complete justice it said ‘In the present case, the power of transfer is being exercised to transfer a case from one Special Judge to another Special Judge, and not to the High Court. The fact that one Special Judge happens to be a Magistrate, whereas the other Special Judge has committed the case to a Court of Sessions would not make any difference as, as has been stated hereinabove, even a right of appeal from a Magistrate to the Sessions Court, and from the Sessions Court to the High Court could be taken away under the procedure established by law, i.e., by virtue of Section 407 (1) and (8) if the case is required to be transferred from the Magistrate at Raebareli to the High Court itself. Hence, under Section 407, even if 2 tiers of appeal are done away with, there is no infraction of Article 21 as such taking away of the right of appeal is expressly contemplated by Section 407(1)(iv) read with Section 407(8). In the circumstances, Antulay’s judgment which dealt with the right of a substantive appeal from a Special Judge to the High Court being taken away by an order of transfer contrary to the non obstante clause in Section 7(1) of the Criminal Law Amendment Act, 1952 would not apply in the facts and circumstances before us.’

The Supreme Court further said that the Court of Sessions will, after transfer of the proceedings from Raebareli to Lucknow and framing of additional charges, within four weeks, take up all the matters on a day-to-day basis from the stage at which the trial proceedings, both at Raebareli and at Lucknow, are continuing, until conclusion of the trial. There shall be no de novo trial. There shall be no transfer of the Judge conducting the trial until the entire trial concludes. The case shall not be adjourned on any ground except when the Sessions Court finds it impossible to carry on the trial for that particular date. In such an event, on grant of adjournment to the next day or a closely proximate date, reasons for the same shall be recorded in writing. Fiat Justicia is the cardinal principle of law but it should never be extended to make a trial an absurdity.

Let us hope that trial brings forth justice to parties and it will not be used as a handle to harass anyone.

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