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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.751 of 2017
(@Special Leave Petition (Criminal) No.2275 of 2011)
State (through) Central Bureau of Investigation …Appellant
Versus
Shri Kalyan Singh (former CM of UP) & Ors. …Respondents
J U D G M E N T
R.F. NARIMAN, J.
Leave granted.
1. The present appeal arises out of the demolition of Babri
Masjid. We are concerned in this case with two FIRs lodged on 6th
December, 1992. The first viz. Crime No.197 of 1992, is 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. The IPC
offences were, therefore, under Sections 153-A, 295, 297, 332, 337,
338, 395 and 397. The second FIR viz. FIR No.198 of 1992 was
lodged against eight persons named therein - Mr. L.K. Advani, Mr.
Ashok Singhal, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi
Ritambara, Mr. Murli Manohar Joshi, Mr. Giriraj Kishore and Mr.
Vishnu Hari Dalmia, two of whom are dead due to passage of time
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viz. Mr. Ashok Singhal and Mr. Giriraj Kishore. The FIR alleges
offences under Sections 153-A, 153-B and Section 505 IPC. 46
further FIRs pertaining to cognizable offences and 1 FIR pertaining
to non-cognizable offences were also lodged. Initially, a Special
Court set up at Lalitpur was to try these cases but subsequently
notifications were issued by the State Government, after consultation
with the High Court, dated 8th September, 1993 whereby these cases
were to be tried by a Special Court at Lucknow. All these cases
were committed to a Court of Sessions, Lucknow in which FIR
No.197, but not FIR No.198, was to be tried. It may be noted that
prior to the transfer of FIR No.197 of 1992 to Lucknow, by an Order
dated 13th April, 1993, the Special Magistrate added Section 120-B
IPC to the said FIR No.197 of 1992.
2. On 5th October, 1993, the CBI filed a consolidated chargesheet
against 48 persons in all including the names of Mr. Bala Saheb
Thackeray, Mr. Kalyan Singh, Mr. Moreshwar Save, Mr. Champat
Rai Bansal, Mr. Satish Pradhan, Mr. Mahant Avaidyanath, Mr.
Dharam Das, Mr. Mahant Nritya Gopal Das, Mr. Mahamadleshwar
Jagdish Muni, Mr. Ram Bilas Vadanti, Mr. Vaikunth Lal Sharma @
Prem, Mr. Prama Hans Ram Chandra Das, and Dr. Satish Chandra
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Nagar. It may be stated that owing to the passage of time, six of
these are since deceased namely Mr. Bala Saheb Thackeray, Mr.
Moreshwar Save, Mr. Mahant Avaidyanath and Mr. Prama Hans
Ram Chandra Das, Mr. Mahamandleshwar Jagdish Muni, and Dr.
Satish Nagar. So far as the charge of conspiracy is concerned, the
chargesheet records:
The aforesaid acts of Shri Bala Saheb Thackeray, Chief
of Shiv Sena, Bombay, Shri L.K. Advani, MP, BJP,
presently BJP President, Shri Kalyan Singh, ex-Chief
Minister of Uttar Pradesh, Shri Ashok Singhal, General
Secretary, VHP, Shri Vinay Katiyar, MP Bajrang Dal, Shri
Moreshwar Save, MP, Shiv Sena, Shri Pawan Kumar
Pandey, Ex-MLA, Shiv Sena, Shri Brij Bhushan Saran
Singh, MP, BJP, Shri Jai Bhagwan Goel, North India
Chief, Shiv Sena, Ms. Uma Bharati @ Gajra Singh, MP,
BJP, Sadhvi Rithambara, VHP leader, Maharaj Swamy
Sakshi, MP, BJP, Shri Satish Pradhan, MP, Shiv Sena,
Shiv Sena, Shri Murli Manohar Joshi, Ex-President, BJP,
Shri Giriraj Kishore, Joint General Secretary, VBP, Shri
Vishnu Hari Dalmia, President, Ram Chandra Khatri,
Vice President, Haryana, Shri Sudhir Kakkar, Organising
Secretary, Shiv Sena, Punjab, Shri Amarnath Goel, Shiv
Sena activist, Shri Santosh Dubey, Leader of Shiv Sena,
Ayodhya, Shri Prakash Sharma, Joint Secretary, Bajrang
Dal, Shri Jaibhan Singh Paweya, All India General
Secretary, Bajrang Dal, Gwalior, Shri Ram Narayan
Dass, ex-Pujari of Ram Janam Bhoomi, Shri Ramji
Gupta, Supervisor Ram Janam Bhoomi Nyas, Shri Lallu
Singh, ex-MLA, BJP, Shri Champat Rai, Joint Zonal
Organising Secretary, VHP, Shri Om Prakash Pandey,
Hindu activist, Shri Lakshmi Narayan Das, Mahatyagi,
Activist, BJP, Shri Vinay Kumar Rai, Hindu activist, Shri
Kamlesh Tripathi @ Sait Dubey, Bajrang Das, activist,
Shri Gandhi Yadav, BJP activist, Shri Hargovind Singh,
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Hindu activist, Shri Vijay Bahadur Singh, Chief Security
Officer, Shri Krishan Temple, Mathura, UP, Shri Navin
Bahi Shukla, Hindu activist, Shri Ramesh Pratap Singh,
BJP activist, and Acharya Dharmender Dev, Leader,
Bajrang Dal constitutes offences U/s 120-B IPC r/w
153-A, 153-B, 295, 295-A and 505 IPC and substantive
offences U/s 153-A, 153-B, 295, 295-A and 505 IPC.
3. On 8th October, 1993, the State Government amended the
notification dated 9th September, 1993 inserting FIR No.198 of 1992
against the eight persons aforesaid so that all 49 cases could be
tried by the Special Court, Lucknow. To cut a long story short, since
this amendment notification did not comply with Section 11(1)
proviso of the Criminal Procedure Code, 1973 viz. that consultation
with the High Court was lacking, this notification was ultimately
struck down.
4. At this point, it is important to note that the CBI filed a
supplementary chargesheet against the 8 persons mentioned
hereinabove in the year 1996 at Lucknow. On 9th September, 1997,
the Special Judge, Lucknow passed an order that there was a prima
facie case against all the accused persons for framing charges of
criminal conspiracy under Section 120-B read with various other
Sections of the Penal Code. The Court held that all the offences
were committed in the course of the same transaction which
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warranted a joint trial and that the case was exclusively triable by the
Court of the Special Judge, Lucknow. It is worth setting out parts of
this order which read as follows:
“There seems to be a prima facie case for offences u/s
147/153-A/153-B/295/295-A/505 read with u/s 149 IPC
against accused Sri Lal Krishna, Ashok Singh, Vinay
Katiyar, Moreshwar Save, Pawan Kumar Pandey, Ms.
Sadhvi Ritambhra, Maharaj Swami Sakshi, Murli
Manohar Joshi, Giri Raj Kishore and Vishnu Hari Dalmia.
Against accused Pawan Kuamr Pandey, Brij Bhushan,
Saran Singh, Pawaiya, Dharmendra Singh Gurjar, Ram
Narain Das, Lalloo Singh, Om Prakash Pandey, Laxmi
Narain Das, Maha Tyagi, Vinay Kumar Rai, Kamlesh
Tripathi, Gandhi Yadav, Har Govind Singh, Vijay Bahadur
Singh, Navin Bhai Shukla, offences u/s 332/338/2-01
read with Sec.149 of IPC seem to be made out.
Offences under Sec.120-B of IPC read with u/s
153-A/153-B/295/295-A/505 of IPC as per evidence
produced by the prosecution seem to be made out prima
facie against Sri Bala Saheb Thackeray, Lal Krishna
Advani, Kalyan Singh, Ashok Singhal, Vinay Katiyar,
Moreshwar Save, Pawan Kumar Pandey, Brij Bhushan
Saran Singh, Jai Bhagwan Goal, Maharaj Swami Sakshi,
Satish Pradhan, Murli Manohar Joshi, Acharya Giriraj
Kishore, Vishnu Hari Dalmia, Vinod Kumar Vats, Ram
Chandra Khattri, Sudhir Singh Pawauya, Dharmedra
Singh Gurjar, Ram Narain Das, Ramji Gupta, Lalloo
Singh, Champat Rai Bansal, Om Prakash Pandey, Laxmi
Narain Maha Tyagi, Vinay Kumar Rai, Kamlesh Tripathi,
Gandhi Yadav, Har Govind Singh, Vijay Bahadur Singh,
Navin Bhai Shukla, Ramesh Pratap Singh, Acharya
Dharmendra Dev, Ms. Uma Bharti, Ms. Sadhvi
Ritambhra.”
So far as question of conspiracy u/s 120-B of IPC is
concerned in that connection it is not necessary to have
proved evidence because a conspiracy is hatched in
secrecy and the knowledge of this conspiracy comes to
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the remaining accused gradually, slowly and this
knowledge is discernable from what becomes clear by
their speeches and by actions done by them. In regard
to criminal conspiracy has been propounded by the
Hon’ble Supreme Court in case reported as Kehar Singh
Vs. State of Delhi 1988 SCC (Criminal) 711 where under
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. In such a conspiracy all the
persons who are connected with it they are held guilty for
activities unlawfully done in the cause of the conspiracy
because all of them have taken a decision to act in that
way as has been propounded by ruling in the following
cases.
(1) Ajay Agarwal Vs. Union of India – 1993 SCC
(Criminal) Page 961
(2) P.K. Narayan Vs. State of Kerala – (1995) SCC 142
(3) State of Maharashtra Vs. Som Nath Thapar – 1996
Cr.l.J.2448
According to the decisions of the Hon’ble Supreme Court
as above, though Sri Kalyan Singh at the time of
occurrence or accused R.N. Srivastava and Sri D.B. Rai
were not present even then they are found prima facie
guilty u/s 120-B of IPC because they are public servants
their act shall be deemed prima facie criminal. Sri
Kalyan Singh had given assurance before the National
Integration Council for not demolishing the disputed
structure and the Hon’ble Supreme Court had permitted
for only symbolic kar sewa being performed. Sri Kalyan
Singh had also said that he will fully ensure the
protection of Ram Janam Bhumi/Babri Masjid structure
and it will not be felled down, but he acted in opposition
to his assurances. Order was not given by Sri Kalyan
Singh for utilizing the Central Force. From this it seems
that prima facie was a necessary participant in the
criminal conspiracy.
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In the above cases the Hon’ble Justice has clearly
propounded 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 Janam 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. Section 395, IPC was also about the
criminal conspiracy for felling down of Babri Masjid. It
was done under Sec.395 IPC which is in the course of
one event and in that connection there is evidence of
PW-37 Sanjay Khare, PW-112 Mohan Sahai, PW-16 Om
Mehta, PW-42 Pravin Jain and the news item published
in newspaper by the journalists like the statement of
PW-38 Shard Chandra Pradhan, that when upto1.30 pm
the kar sewaks could not demolish the dome from above,
they were demolishing the walls from below and Vinay
Katiyar and Lal Krishna Advani, Murli Manohar Joshi and
Ashok Singhal made exhortations many a time that all
persons should get down from the dome as it was on the
point of falling down. It is the statement of PW-145 Ms.
Latika Gupta that Sri Advani had made this declaration
that the C.RP.F. could come any time and hence all
should go and block the road to prevent it from coming.
Smt. Vijai Raje Scindia also asked the kar sewaks to
come down when the dome was being felled and on the
stage there was distribution of sweets.
From the above discussion this conclusion is drawn that
in the present case the criminal conspiracy of felling
down of the disputed structure of Ram Janam
Bhumi/Babri Masjid was commenced by the accused
from 1990 and it was completed on 06.12.1992 Sri Lal
Krishan Advani and others at different times and at
different places made schemes of criminal conspiracy of
demolishing the above disputed structure. Hence I find
prima facie basis on the strength of evidence to charge
accused S/Sri Bala Saheb Thackeray, Lal Krishna
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Advani, Kalyan Singh, Ashok Singhal, Vinay Katiyar,
Moreshwar Save, Pawan Kumar Pandey, Brij Bhushan
Saran Singh, Jai Bhagwan Goe, Ms. Uma Bharti, Ms.
Sadhwi Ritambhra, Maharaj Sami Sakshi, Murli Manohar
Joshi, Giri Raj Kishore Vishnu Hari Dalmia, Champat Rai
Bansal, Om Prakash Pandey, Satish Pradhan Mahant
Avaidh Nath, Dharam Das, Mahant Nritya Gopal Das,
Maha Mandaleshwar Jagdish Muni, Dr. Ram Vilas
Vedanti, Baikunth Lal Sharma @ Prem Param Hans
Ram Chandra Das, Smt. Vijay Raje Scindia, and Dr.
Satish Kumar Nagar for offences u/s
147/153-A/153-B/295-A/505 of IPC read with Sec. 120-B
of IPC.”
5. Criminal Revision Petitions were filed against the order dated
9
th September, 1997. By a Judgment dated 12th February, 2001,
delivered by the High Court of Allahabad, Lucknow Bench, it was
held:
(1) Notification dated 8th October, 1993 amending the notification
dated 9th September, 1993 was invalid as there was no
consultation with the High Court before issuing the said
notification. It is important to mention that the Court held that
this was a curable legal infirmity.
(2) Consequently the Special Court at Lucknow has no jurisdiction
to inquire into and to commit to the Court of Sessions FIR
No.198 of 1992 against the aforesaid eight accused for the
three offences stated therein.
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(3) The impugned order dated 9th September, 1997 for framing
charges under Sections 153-A, 153-B and 505 IPC was
without jurisdiction and liable to be set aside to this extent.
(4) No illegality was committed by the Court below while taking
cognizance of a joint chargesheet 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 49
different FIRs were lodged.
(5) 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.
(6) In all other respects, the impugned order dated 9th September,
1997 for the framing of charges, so far as 48 out of 49 cases
are concerned, for the offences of criminal conspiracy read
with other IPC offences, save and except the three IPC
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offences against the eight accused persons aforesaid, was
upheld.
6. 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.
7. 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.
8. 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 8
accused persons for offences under Sections 153A, 153B, 505 read
with Sections 147 and 149 IPC before the Judicial Magistrate at Rae
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Bareilly. 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.
9. By an order dated 4th May, 2001, the Special Court dropped
proceedings against 21 persons; namely, eight accused persons
being Mr. L.K. Advani, Mr. Ashok Singhal (deceased), Mr. Vinay
Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar
Joshi, Mr. Giriraj Kishore (deceased), Mr. Vishnu Hari Dalmia, and
13 accused persons being Mr. Bala Saheb Thackeray (deceased),
Mr. Kalyan Singh, Mr. Moreshwar Save (deceased), Mr. Champat
Rai Bansal, Mr. Satish Pradhan, Mr. Mahant Avaidhyanath
(deceased), Mr. Dharam Das, Mr. Mahant Nritya Gopal Das, Mr.
Mahamadleshwar Jagdish Muni, Mr. Ram Bilas Vadanti, Mr. Vakunth
Lal Sharma @ Prem, Mr. Prama Hans Ram Chandra Das
(deceased) and Dr. Satish Chandra Nagar, taking the view that
there were two sets of accused - one, the Kar Sewaks who actually
demolished the Masjid, and others who were the instigators. The
Court thought that it was faced with two alternatives, and chose the
lesser alternative of dropping the proceedings against these 21
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persons so that the proceedings against the Kar Sewaks could carry
on. A revision was filed against the order dated 4th May, 2001 before
the High Court which led to the passing of the impugned Judgment
dated 22nd May, 2010. This Judgment upheld the Judgment dated 4th
May, 2001 holding that there were two classes of accused, namely,
leaders who were on the dais exhorting the Kar Sewaks at 200
meters from the Masjid, and the Kar Sewaks themselves. The
nature of the accusations against both was different and their
involvement was for different criminal offences. The submission on
behalf of the CBI that the Lower Court could not have discharged 21
accused persons as it would amount to reviewing the order dated 9th
September, 1997, was turned down. The CBI also raised a plea that
the embargo against prosecution was only against 8 persons insofar
as 3 offences and 3 offences alone concerning Sections 153A, 153B
and 505 IPC. It was held that the entire crime recorded in FIR
No.198 of 1992 would encompass Sections other than the 3
Sections mentioned and this plea was also, therefore, turned down.
Criminal conspiracy, according to the impugned judgment, was
never made out against the aforesaid 8 or 13 persons as otherwise
the supplementary charge sheet filed by the CBI at Rae Bareilly
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would have included Section 120B which it did not. Turning down
the CBI’s plea that the judgment dated 12th February, 2001 had laid
down that a joint charge sheet on the ground that different offences
were committed in the course of the same transaction, and a plea
that a prima facie case had been made out of conspiracy, together
with the fact that order dated 9th September, 1997 continues to
survive qua all the other accused was also turned down by the
impugned judgment, holding :
“Otherwise also the accusation/charge of conspiracy
(under Section 120-B IPC) in respect of Sections 153-A,
153-B and 505 IPC against accused of Crime No.198 of
1992 does not appear to be of any significant
consequence when Sections 147 and 149 IPC have
already been added.
Similarly if the accusation regarding criminal conspiracy
punishable under Section 120-B IPC has not been
invoked against the eight main leaders then how it can
be invoked against rest 13-1=12 leaders. The
accusations against these remaining 13 accused who
have also been found to be within the ambit of Crime
No.198 of 1992, have also to be same because they
were also sharing the same dais at Ram Katha Kunj with
those 8 persons. Finally, therefore, this submission also
lacks merit.”
10. It was further held that if the CBI had any evidence of
conspiracy it can file a supplementary charge sheet before the Court
at Rae Bareilly which was seized of Crime No.198 of 1992. Holding
that from the very beginning two separate FIRs were filed because
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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 49 FIRs and ultimately found
that there is no illegality or impropriety in the impugned order dated
4
th May, 2001. The High Court, therefore, by the impugned order,
dismissed the revision filed against the said order.
11. Shri Neeraj Kaul, learned Addl. Solicitor General, appearing on
behalf of the CBI has argued before us that the impugned judgment
has completely misinterpreted the judgment dated 12th February,
2001 and confirmed the dropping of proceedings against 21 accused
persons which could not be done. According to Shri Kaul, an
artificial distinction was made by the impugned judgment between
different kinds of offences and offenders when, in point of fact, the
2001 judgment expressly upheld the filing of a joint charge sheet by
CBI. He went on to contend that the offence of conspiracy was
already contained in the charges made in FIR No.197 of 1992 before
the Special Court, Lucknow and that it was for this reason that the
Section 120B charge was not added in the supplementary charge
sheet filed against the aforesaid 8 accused persons at Rae Bareilly.
This was completely missed by the impugned judgment, which
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mistakenly held that it was possible for the CBI to add the charge of
Section 120B at Rae Bareilly. According to Shri Kaul, if this was
done then two different Special Courts would have to decide on the
same criminal conspiracy and might come to different conclusions
regarding the same, which is the basic infirmity in the impugned
judgment. He added that none of the aforesaid 21 accused persons
should have been dropped, and the CBI had filed a supplementary
charge sheet at Rae Bareilly against the 8 accused persons only
because it wished to conclude the trial against them expeditiously,
which could only have happened if they were proceeded against at
Rae Bareilly, since the State Government refused to cure the defect
in the notification dated 8th October, 1993.
12. Shri K.K. Venugopal, learned senior counsel on behalf of
Respondent Nos.4 and 5, has argued that the judgment dated 12th
February, 2001 cannot be reopened at this stage as the Supreme
Court has dismissed an appeal filed against it and has further
dismissed a review petition and a curative petition. The CBI cannot
be allowed to re-agitate what has been closed by the aforesaid
judgment. Moreover, since the order dated 4th May, 2001 merely
implements the judgment and order dated 12th February, 2001 and
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the impugned judgment upheld the said judgment dated 4th May,
2001, CBI’s appeal ought to be dismissed. Since the trial against
the 8 accused is proceeding at Rae Bareilly, no question of a joint
trial before the Special Court at Lucknow can arise at this stage in
view of the final and binding decision of this Court dismissing the
appeal against the judgment dated 12th February, 2001. According
to learned senior counsel, Article 142 of the Constitution cannot be
used by this Court to transfer proceedings against the aforesaid 8
accused persons from Rae Bareilly to Lucknow in view of the fact
that the fundamental rights guaranteed to the aforesaid 8 accused
persons under Article 21 of the Constitution would otherwise be
infringed inasmuch as a right of appeal from the learned Magistrate,
Rae Bareilly to the Sessions Court would be taken away. The
learned senior counsel also referred to Section 407 (1) of the Cr.P.C.
by which it was clear that an order of transfer from one Special
Judge to another within the same State would be covered by the
aforesaid provision and could only be done by the High Court of the
concerned State in which both the lower Courts are situated. Since
Article 142 cannot be used against substantive provisions of law, this
would be a violation of Section 407 (1) which permits only the High
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Court to transfer such a case. The learned senior counsel referred
to a number of judgments setting out that the powers of the Supreme
Court under Article 142 cannot be used against a mandatory
substantive provision of law.
13. Shri Kapil Sibal, learned senior counsel appearing for the
Appellants in SLP (Crl.) No.2705 of 2015 was permitted by us to
argue treating the SLP Petitioner as an intervenor. Consequently, he
addressed us only on questions of law. According to learned senior
counsel, this Court ought to transfer the case pending at Rae
Bareilly to Lucknow as a joint charge sheet has been filed clubbing
all the 49 FIRs, including FIR No.198 of 1992. Nothing prevented
this Court from using this extremely wide power under Article 142 to
do complete justice. He further pointed out that any reliance on the
judgment in A.R. Antulay v. R.S. Nayak & Another, (1988) 2 SCC
602, would be incorrect as the said judgment was wholly
distinguishable. According to him, on a reading of Sections 216 and
223 of the Code, it is clear that the trial need not begin de novo but
that the witnesses already examined, both in Rae Bareilly and in
Lucknow, could be recalled for the limited purpose of
cross-examination on charges that are now to be added.
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14. We have heard the learned counsel for the parties. We are of
the view that the judgment dated 12th February, 2001, clearly and
unequivocally held 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. Also, we
agree with Mr. Neeraj Kaul 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, as they were already
arrayed as accused insofar as the charge of criminal conspiracy was
concerned, which would be gone into by the Special Judge,
Lucknow, while dealing with the offences made out in FIR No.197 of
1992. In this regard also, we are of the view that the impugned
judgment in holding to the contrary is not correct.
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15. The impugned judgment also artificially divided offences and
offenders into two groups which did not follow from the judgment
dated 12th February, 2001. On the contrary, the said judgment
having upheld the joint charge sheet and having prima facie found a
case of criminal conspiracy being made out, this could not have
been held contrary to the said judgment. Further, the impugned
judgment contradicts itself when it says that the 21 accused persons
form one group in several places, whereas the very same judgment
in paragraph 31 thereof clearly made a distinction between the 8
accused and the other group of 13 accused. It went on to say:
“Another submission on behalf of the CBI is that in
respect of S/Sri Bala Saheb Thackerey, Kalyan Singh
and Satish Pradhan, the learned lower court has dealt
with very concisely and has not given sufficient reasons
for treating them to be within the ambit of Crime No.198
of 1992. The discussion made by the learned lower
court in respect of these accused may be precise but the
conclusion arrived at is correct because these leaders
were not even physically present on the said dias (sic)
along with other leaders.”
16. The aforesaid conclusion militates against what was repeatedly
said by the impugned judgment in several places, and it is clear that
13 persons were not physically present on the dais along with the
other 8 accused persons. It is clear from a reading of the judgment
dated 12th February, 2001, that the High Court expected that the
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defect noticed in the notification would be cured soon after the
delivery of the judgment in which case a joint trial would have
proceeded. This, however, did not happen, because the CBI did not
challenge the rejection of the request to cure this technical defect.
Instead the course taken by the CBI has caused great confusion.
The filing of the supplementary charge sheet against 8 accused
persons which is going on separately at Rae Bareilly and the
dropping altogether of charges against the 13 accused persons,
after the Judgment dated 12th February, 2001 has completely
derailed the joint trial envisaged and has resulted in a fractured
prosecution going on in two places simultaneously based on a joint
charge sheet filed by the CBI itself. In order to remedy what ought to
have been done by the State Government in 2001 by curing the
technical defect pointed out by the High of Allahabad in the judgment
dated 12th February, 2001, we are of the view that the best course in
the present case would be to transfer the proceedings going on at
Rae Bareilly to the Court of Sessions at Lucknow so that a joint trial
of all the offences mentioned in the joint charge sheet filed by the
CBI against the persons named could proceed. In our view, since
the charge of criminal conspiracy against all 21 accused is already in
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the joint charge sheet filed by the CBI at Lucknow, this charge could
be added to the charges already framed against the survivors of the
group of 8 accused. As against the survivors of the group of 13,
Penal Code offences mentioned in the joint charge sheet also need
to be added. 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 Bareilly or in Lucknow for the purpose of
cross-examination. The Court of Sessions at Lucknow will have due
regard to Section 217(a) of the Code of Criminal Procedure so that
the right to recall is not so exercised as to unduly protract the trial.
17. It remains to deal with some of the arguments by Shri K.K.
Venugopal, learned senior counsel. According to learned senior
counsel, our powers under Article 142 cannot be used to supplant
the law. Article 142 is set out hereunder:
“142. Enforcement of decrees and orders of
Supreme Court and orders as to discovery, etc.—(1)
The Supreme Court in the exercise of its jurisdiction may
pass such decree or make such order as is necessary
for doing complete justice in any cause or matter
Page 22
pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory of
India in such manner as may be prescribed by or under
any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may
by order prescribe.
(2) Subject to the provisions of any law made in this
behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and
every power to make any order for the purpose of
securing the attendance of any person, the discovery or
production of any documents, or the investigation or
punishment of any contempt of itself.”
18. A number of judgments have been cited including the
celebrated Supreme Court judgment in Supreme Court Bar
Association v. Union of India & Another, 1998 (4) SCC 409, in
which a Constitution Bench of this Court held that Article 142 cannot
authorize the Court to ignore the substantive rights of a litigant while
dealing with the cause pending before it and cannot be used to
supplant the substantive law applicable to the cause before this
Court. A large number of other judgments following this judgment
were also cited. It is necessary only to refer to a recent judgment in
State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, in which this
Court held:
Page 23
“Article 142 of the Constitution of India is supplementary
in nature and cannot supplant the substantive provisions,
though they are not limited by the substantive provisions
in the statute. It is a power that gives preference to
equity over law. It is a justice-oriented approach as
against the strict rigours of the law. The directions issued
by the Court can normally be categorised into one, in the
nature of moulding of relief and the other, as the
declaration of law. “Declaration of law” as contemplated
in Article 141 of the Constitution: is the speech express
or necessarily implied by the highest court of the land.
This Court in Indian Bank v. ABS Marine Products (P)
Ltd. [(2006) 5 SCC 72] , Ram Pravesh Singh v. State of
Bihar [(2006) 8 SCC 381 : 2006 SCC (L&S) 1986] and
in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 :
2006 SCC (L&S) 190] has expounded the principle and
extolled the power of Article 142 of the Constitution of
India to new heights by laying down that the directions
issued under Article 142 do not constitute a binding
precedent unlike Article 141 of the Constitution of India.
They are direction (sic) issued to do proper justice and
exercise of such power, cannot be considered as law laid
down by the Supreme Court under Article 141 of the
Constitution of India. The Court has compartmentalised
and differentiated the relief in the operative portion of the
judgment by exercise of powers under Article 142 of the
Constitution as against the law declared. The directions
of the Court under Article 142 of the Constitution, while
moulding the relief, that relax the application of law or
exempt the case in hand from the rigour of the law in
view of the peculiar facts and circumstances do not
comprise the ratio decidendi and therefore lose its basic
premise of making it a binding precedent. This Court on
the qui vive has expanded the horizons of Article 142 of
the Constitution by keeping it outside the purview of
Article 141 of the Constitution and by declaring it a
direction of the Court that changes its complexion with
the peculiarity in the facts and circumstances of the
case.” [para 12]
Page 24
19. Article 142(1) of the Constitution of India had no counterpart in
the Government of India Act, 1935 and to the best of our knowledge,
does not have any counterpart in any other Constitution world over.
The Latin maxim fiat justitia ruat cælum is what first comes to mind
on a reading of Article 142 – Let justice be done though the heavens
fall.1
This Article gives a very wide power to do complete justice to
the parties before the Court, a power which exists in the Supreme
Court because the judgment delivered by it will finally end the
litigation between the parties. It is important to notice that Article 142
follows upon Article 141 of the Constitution, in which it is stated that
the law declared by the Supreme Court shall be binding on all Courts
within the territory of India. Thus, every judgment delivered by the
Supreme Court has two components – the law declared which binds
Courts in future litigation between persons, and the doing of
complete justice in any cause or matter which is pending before it. It
is, in fact, an Article that turns one of the maxims of equity on its
head, namely, that equity follows the law. By Article 142, as has
been held in the State of Punjab judgment, equity has been given
This maxim was quoted by Lord Mansfield in R. v. Wilkes, (1770) 4 Burr 2527: (1558-1774) All ER Rep.
570. The passage in which it is quoted makes interesting reading, and among the many other things stated by
that great Judge, it is stated : ‘I wish POPULARITY: but it is that popularity which follows; not that which is run
after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble
means.’
Page 25
precedence over law. But it is not the kind of equity which can
disregard mandatory substantive provisions of law when the Court
issues directions under Article 142. While moulding relief, the Court
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. In the present
case, crimes which shake the secular fabric of the Constitution of
India 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
State Government. Almost 25 years have gone and yet we are
solemnly reminded that Respondent Nos.4 and 5’s fundamental
rights should not be curtailed by any order passed under Article 142.
When asked what these rights were, we were referred to the
judgment in Antulay’s case (supra) for the proposition that if
transfer of the case against Respondent Nos.4 and 5 is made from
Page 26
Rae Bareilly to Lucknow, one right of appeal would be taken away
inasmuch as the transfer would be from a Magistrate to a Court of
Sessions.
20. This contention would not have been available if, shortly after
the judgment dated 12th February, 2001, the State Government had
cured the defect by issuing another notification after consulting the
High Court. Equally, if the refusal of the State Government to cure
this technical defect had been challenged by the CBI in the High
Court, and set aside with a direction to issue a notification curing the
defect, a joint trial at Lucknow would have been well on its way and
may even have been concluded by now. No selective
supplementary charge sheet filed by the CBI at Rae Bareilly splitting
the trial would then have been necessary. What is being done by us
today is only to remedy what was expected by the Allahabad High
Court to have been done shortly after its Judgment dated 12th
February, 2001.
21. In the Antulay judgment, Section 7(1) of the Criminal Law
Amendment Act, 1952, was under consideration. Section 7(1) is
reproduced herein below:
“7. Cases triable by Special Judges.— (1)
Notwithstanding anything contained in the Code of
Page 27
Criminal Procedure, 1898 (5 of 1898), or in any other law
the offences specified in sub-section (1) of Section 6
shall be triable by Special Judges only.”
22. The majority judgment of Mukharji, J., in paragraph 24, adverts
to this section and emphasises the fact that only Special Judges are
to try certain offences, notwithstanding anything contained in the
Criminal Procedure Code. There is no such provision in the facts of
the present case. In point of fact, Section 11(1) proviso of the Code
of Criminal Procedure only states that the State Government may
establish for any local area one or more Special Courts, and where
such Special Court is established, no other court in the local area
shall have jurisdiction to try the case or classes of case triable by it.
Conspicuous by its absence is a non obstante clause in Section 11.
23. In paragraph 34, Mukharji, J. stated that Sections 406 and 407
were covered by the non-obstante clause in Section 7(1). This would
mean that the High Court under Section 407 could not transfer a
case to itself as provided under Section 407(1). It is in this context
that it is stated that the right of appeal to the High Court from the
Special Court is taken away, violating the procedure established by
law under Article 21. Also, for this reason, in paragraph 38 of the
said judgment it is stated that the order of the Supreme Court
Page 28
transferring cases from the Special Judge to the High Court is not
authorised by law. Also, the further right to move the High Court by
way of revision or first appeal under Section 9 of the said Act was
therefore taken away. In the present case, assuming that the High
Court were to exercise the power of transfer under Section 407, the
High Court could have transferred the case pending at Rae Bareilly
and/or at Lucknow to itself under Section 407 (1) and (8). The
absence of a non-obstante clause under Section 11(1) proviso of the
Criminal Procedure Code thus makes it clear that Article 21 in the
facts of the present case cannot be said to have been infringed, as
even a transfer from a subordinate court to the High Court, which
would undoubtedly take away the right of appeal, is itself envisaged
as the ‘procedure established by law’ under Section 407 of the
Criminal Procedure Code.
24. 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
Page 29
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 Rae Bareilly 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.
25. That Article 142 can be used for a procedural purpose, namely,
to transfer a proceeding from one Court to another does not require
much argument. However, Shri Venugopal relied upon Sections 406
and 407 of the Criminal Procedure Code, which are set out
hereinbelow:
“406. Power of Supreme Court to transfer cases and
appeals.— (1) Whenever it is made to appear to the
Supreme Court that an order under this section is
Page 30
expedient for the ends of justice, it may direct that any
particular case or appeal be transferred from one High
Court to another High Court or from a Criminal Court
subordinate to one High Court to another Criminal Court
of equal or superior jurisdiction subordinate to another
High Court.
(2) The Supreme Court may act under this section only
on the application of the Attorney-General of India or of a
party interested, and every such application shall be
made by motion, which shall, except when the applicant
is the Attorney-General of India or the Advocate-General
of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers
conferred by this section is dismissed, the Supreme
Court may, if it is of opinion that the application was
frivolous or vexatious, order the applicant to pay by way
of compensation to any person who has opposed the
application such sum not exceeding one thousand
rupees as it may consider appropriate in the
circumstances of the case.
407. Power of High Court to transfer cases and
appeals.— (1) Whenever it is made to appear to the
High Court—
(a) that a fair and impartial inquiry or trial cannot be had
in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely
to arise, or
(c) that an order under this section is required by any
provision of this Code, or will tend to the general
Page 31
convenience of the parties or witnesses, or is expedient
for the ends of justice,
it may order—
(i) that any offence be inquired into or tried by any Court
not qualified under Sections 177 to 185 (both inclusive),
but in other respects competent to inquire into or try such
offence;
(ii) that any particular case or appeal, or class of cases
or appeals, be transferred from a Criminal Court
subordinate to its authority to any other such Criminal
Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a
Court of Session; or
(iv) that any particular case or appeal be transferred to
and tried before itself.
(2) The High Court may act either on the report of the
lower Court, or on the application of a party interested, or
on its own initiative:
Provided that no application shall lie to the High Court for
transferring a case from one Criminal Court to another
Criminal Court in the same sessions division, unless an
application for such transfer has been made to the
Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1)
shall be made by motion, which shall, except when the
applicant is the Advocate-General of the State, be
Page 32
supported by affidavit or affirmation.
(4) When such application is made by an accused
person, the High Court may direct him to execute a
bond, with or without sureties, for the payment of any
compensation which the High Court may award under
sub-section (7).
(5) Every accused person making such application shall
give to the Public Prosecutor notice in writing of the
application, together with a copy of the grounds on which
it is made; and no order shall be made on the merits of
the application unless at least twenty-four hours have
elapsed between the giving of such notice and the
hearing of the application.
(6) Where the application is for the transfer of a case or
appeal from any subordinate Court, the High Court may,
if it is satisfied that it is necessary so to do in the
interests of justice, order that, pending the disposal of
the application, the proceedings in the subordinate Court
shall be stayed, on such terms as the High Court may
think fit to impose:
Provided that such stay shall not affect the subordinate
Court's power of remand under Section 309.
(7) Where an application for an order under sub-section
(1) is dismissed, the High Court may, if it is of opinion
that the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person
who has opposed the application such sum not
exceeding one thousand rupees as it may consider
proper in the circumstances of the case.
Page 33
(8) When the High Court orders under sub-section (1)
that a case be transferred from any Court for trial before
itself, it shall observe in such trial the same procedure
which that Court would have observed if the case had
not been so transferred.
(9) Nothing in this section shall be deemed to affect any
order of Government under Section 197.”
26. According to Shri Venugopal, the Supreme Court’s power
under Section 406 is circumscribed by transfer taking place only
from a Criminal Court subordinate to one High Court to another
Criminal Court of equal or superior jurisdiction subordinate to
another High Court. Clearly Section 406 does not apply to the facts
of the present case as the transfer is from one Criminal Court to
another Criminal Court, both subordinate to the same High Court.
This being the case, nothing prevents us from utilizing our power
under Article 142 to transfer a proceeding from one Criminal Court to
another Criminal Court under the same High Court as Section 406
does not apply at all. Learned senior counsel went on to add that
such a power is exercisable only under Section 407 by the High
Court and not this Court. Again, the fact that the High Court has
been given a certain power of transfer under the Code of Criminal
Procedure does not detract from the Supreme Court using a
constitutional power under Article 142 to achieve the same end to do
Page 34
complete justice in the matter before it. In the present case, there is
no substantive mandatory provision which is infracted by using
Article 142. This being the case, both grounds taken by Shri
Venugopal are without substance.
27. We have been shown a judgment of the High Court dated 8th December, 2011, in which the matter proceeding at Rae Bareilly was to be proceeded with on a day-to-day basis until it is concluded. We have been told that this has only been followed in the breach as less than a hundred witnesses have yet been examined. Any number of adjournments been taken by the CBI as well as the other persons. One other disturbing feature is the fact that the Special Judge designated by the notification to carry on the trial at Rae Bareilly has been transferred a number of times, as a result of which the matter could not be taken up on the dates fixed. This being the case, while allowing the appeal of the CBI and setting aside the impugned judgment, we issue the following directions: i. The proceedings viz. Crime No. 198/92, RC.1(S)/92/SIC-IV/ND in the Court of the Special Judicial Magistrate at Rae Bareilly will stand transferred to the Court of Additional Sessions Judge (Ayodhya Matters) at Lucknow. ii. The Court of Sessions will frame an additional charge under Page 35 Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions will frame additional charges under Section 120-B and the other provisions of the Penal Code mentioned in the joint charge sheet filed by the CBI against Mr. Champat Rai Bansal, Mr. Satish Pradhan, Mr. Dharam Das, Mr. Mahant Nritya Gopal Das, Mr. Ram Bilas Vadanti and Mr. Vaikunth Lal Sharma @ Prem. Mr. Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor. iii. The Court of Sessions will, after transfer of the proceedings from Rae Bareilly 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 Rae Bareilly 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 Page 36 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. iv. The CBI shall ensure that on every date fixed for evidence, some prosecution witnesses must remain present, so that for want of witnesses the matter be not adjourned. v. The Sessions Court will complete the trial and deliver the judgment within a period of 2 years from the date of receipt of this judgment. vi. We make it clear that liberty is given to any of the parties before the Sessions Court to approach us in the event of these directions not being carried out, both in letter and in spirit. 28. The appeal is disposed of accordingly. …………………………………..J. (PINAKI CHANDRA GHOSE ) …….…………………………… J. (R.F. NARIMAN) New Delhi; April 19, 2017.
27. We have been shown a judgment of the High Court dated 8th December, 2011, in which the matter proceeding at Rae Bareilly was to be proceeded with on a day-to-day basis until it is concluded. We have been told that this has only been followed in the breach as less than a hundred witnesses have yet been examined. Any number of adjournments been taken by the CBI as well as the other persons. One other disturbing feature is the fact that the Special Judge designated by the notification to carry on the trial at Rae Bareilly has been transferred a number of times, as a result of which the matter could not be taken up on the dates fixed. This being the case, while allowing the appeal of the CBI and setting aside the impugned judgment, we issue the following directions: i. The proceedings viz. Crime No. 198/92, RC.1(S)/92/SIC-IV/ND in the Court of the Special Judicial Magistrate at Rae Bareilly will stand transferred to the Court of Additional Sessions Judge (Ayodhya Matters) at Lucknow. ii. The Court of Sessions will frame an additional charge under Page 35 Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions will frame additional charges under Section 120-B and the other provisions of the Penal Code mentioned in the joint charge sheet filed by the CBI against Mr. Champat Rai Bansal, Mr. Satish Pradhan, Mr. Dharam Das, Mr. Mahant Nritya Gopal Das, Mr. Ram Bilas Vadanti and Mr. Vaikunth Lal Sharma @ Prem. Mr. Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor. iii. The Court of Sessions will, after transfer of the proceedings from Rae Bareilly 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 Rae Bareilly 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 Page 36 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. iv. The CBI shall ensure that on every date fixed for evidence, some prosecution witnesses must remain present, so that for want of witnesses the matter be not adjourned. v. The Sessions Court will complete the trial and deliver the judgment within a period of 2 years from the date of receipt of this judgment. vi. We make it clear that liberty is given to any of the parties before the Sessions Court to approach us in the event of these directions not being carried out, both in letter and in spirit. 28. The appeal is disposed of accordingly. …………………………………..J. (PINAKI CHANDRA GHOSE ) …….…………………………… J. (R.F. NARIMAN) New Delhi; April 19, 2017.
