“Crimes that shake the secular fabric of the constitution have allegedly been committed almost 25 years ago,” the Supreme Court said.
New Delhi: The Supreme Court on Wednesday said the Babri Masjid demolition is a crime that shakes the secular fabric of the constitution and ordered the restoration of ‘criminal conspiracy’ charges against senior BJP leaders L.K. Advani, Murli Manohar Joshi and Uma Bharti. It also ordered a joint trial in the Lucknow court where the trial of others for the same crime is taking place and directed that the proceedings be completed in two years. The Babri demolition trial has so far been taking place in two courts: one in Lucknow (for the ordinary kar sevaks) and one in Rae Bareli (for the leaders).
Advani, who was deputy prime minister of India and remains today an iconic leader of the Bharatiya Janata Party, would not have imagined that the 1992 Babri Masjid demolition case will haunt him again after nearly 25 years, in a verdict with strong political ramifications.
A bench of Justices Pinaki Chandra Ghose and Rohinton Nariman gave this direction to the CBI while allowing its appeals filed in 2011 during the UPA regime against the dropping of conspiracy charges against Advani and others in the case. Advani and his co-accused will be sentenced upto five years imprisonment if the conspiracy charge is proved. Curiously, the CBI under the BJP-led NDA dispensation vigorously pursued the appeals and pressed for a joint trial in one court with the conspiracy charge restored.
Writing the judgment, Justice Nariman said, “in the present case, crimes that shake the secular fabric of the constitution have allegedly been committed almost 25 years ago. The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the aforesaid alleged offenders in a joint trial, and because of technical defects which were easily curable, but which were not cured by the Uttar Pradesh government.”
The bench said one of the accused, Kalyan Singh, will benefit from constitutional immunity as he is currently the governor of Rajasthan. The court further said that as soon as he relinquishes office, additional charges of conspiracy shall be filed against him. Invoking its powers under Article 142 of the constitution to do complete justice, the bench shifted the proceedings from the Rae Bareli court (pending against Advani and others) to a Lucknow court.
Rejecting Advani’s submission that the trial cannot be shifted as his right to a fair trial, under Article 21 of the constitution, would been taken away, the bench said “almost 25 years have gone and yet we are solemnly reminded that fundamental rights should not be curtailed by any order passed under Article 142. Article 142 can be used for a procedural purpose, namely, to transfer a proceeding from one court to another.”
The court said it “can go to the extent of relaxing the application of law to the parties or exempting altogether the parties from the rigours of the law in view of the peculiar facts and circumstances of the case. This being so, it is clear that this court has the power, nay, the duty to do complete justice in a case when found necessary.”
Once the case is shifted to Lucknow, the court of sessions will frame within four weeks an additional charge under Section 120-B against Advani, Vinay Katiyar, Bharati, Sadhvi Ritambara, Joshi and Vishnu Hari Dalmia, Champat Rai Bansal, Satish Pradhan, Dharam Das, Mahant Nritya Gopal Das, Mahamadleshwar Jagdish Muni, Ram Bilas Vadanti, Vaikunth Lal Sharma (Prem) and Satish Chandra Nagar.
The bench said there won’t be a fresh trial. In its judgment, the court has ordered a day to day trial without any adjournments, no transfer of the presiding judge, and that the CBI shall ensure some prosecution witnesses remain present every day. The court also said that the case will not be adjourned on any ground other than when the sessions court finds it impossible to carry out the trial on a particular date.
So far, 195 witnesses have been examined in the Lucknow case while a whopping 800 witnesses remain to testify. In the Rae Bareli case, 57 witnesses have been examined while 105 are yet to be examined. Now, there will be fresh examinations of witnesses in the Lucknow court in the joint trial where the CBI has filed a composite chargesheet, inclusive of the conspiracy charge.
Justifying the joint trial, the bench said that since the evidence for all these offences was almost the same, the offences cannot be separated from each other, irrespective of the fact that 49 different FIRs were lodged. The bench agreed with the CBI that “the offence of criminal conspiracy is already there in the joint charge sheet filed by the CBI against all the named accused, which includes the 21 accused who have been discharged. That being the case, it is clear that the said accused could not possibly have been discharged.”
The bench also faulted the Allahabad high court in dropping the conspiracy charge. “In our opinion, there is no need for a de novo trial inasmuch as the aforesaid charges against all 21 accused persons can conveniently be added under Section 216 of the Code of Criminal Procedure in the ongoing trial. No prejudice will be caused to the accused as they have the right to recall witnesses already examined either in Rae Bareily or in Lucknow for the purpose of cross- examination.”
Soon after the demolition of the Babri Masjid on December 6, 1992, two FIRs were registered – 197/92 (without naming the kar sevaks and later naming 47 accused) and 198/92 (against Advani and 12 others). The special court framed charges against 47 persons in the first FIR, and Advani and others in the second FIR, which dealt with the actual demolition of the masjid.
The first mentioned 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 second FIR, was registered against 12 persons, including Ashok Singhal, Giriraj Kishore, Advani, Joshi, Dalmia,Vinay Katiyar, Bharati and 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 integration and statements conducive to public mischief.
On revision, the sessions judge on May 4, 2001, dropped the conspiracy charge against Advani and others on the ground that case number 197, was transferred to the CBI, related only to kar sevaks. Nine years later, the Allahabad high court on May 20, 2010, upheld the special court’s order and dismissed the CBI’s revision petition for a direction to proceed with the conspiracy charge against Advani and others.
The high court had pointed out that the notification for transfer mentioned only one FIR against the kar sevaks. The high court said it was open to the state government to issue a fresh notification for transfer of both FIRs but the then state government failed to issue a fresh notification for a composite trial. The CBI filed the appeal nearly nine months after the high court verdict, with an application for condonation of delay.
The CBI contended that the persons who had indulged in the actual demolition should be tried in case 197 along with the offences relating to snatching of cameras and assault of media persons. The CBI contended that the bifurcation attempted by the trial court and approved by the high court was completely erroneous in law.
It said the offence of instigation, facilitation, the actual demolition of the mosque on December 6 and the continuous assault on the media persons form a single connected transaction, and might also be a concerted conspiracy under Section 120B of the IPC.
The CBI said the error in the judgments of the trial court and the high court had vitiated the fundamental principles of criminal jurisprudence that in respect of a continuous criminal act which might attract various offences of the IPC, the said transaction had to be viewed as a whole. Advani and others in their response blamed the UPA government for filing the appeal after a considerable delay and said it was purely a political agenda, but the CBI stuck to its stand for revival of conspiracy and succeeded in its attempt.