Babri Masjid case in Supreme Court: The Complete Report

What would have otherwise turned out to be a very banal day at the Supreme Court proved very eventful as three Senior Counsel argued the quarter-century old Babri Masjid Demolition case..Additional Solicitor General Neeraj Kishan Kaul and Senior Advocates KK Venugopal and Kapil Sibal argued at length today before a Bench of Justices PC Ghose and Rohinton Fali Nariman. Kaul represented CBI in the matter with Sibal appearing for an intervenor, Haji Mahboob Ahmad. KK Venugopal appeared for LK Advani..The Court reserved its judgment after a day-long hearing..Below is a simple breakdown of the case and today’s hearing..Background.1992.The case has a very long and complex history beginning with the demolition of the disputed Babri Masjid at Ayodhya in 1992..This led to the registration of two separate FIRs – 197/1992 and 198/1992. FIR 197 was against unnamed Karsevaks for demolition of the structure while FIR 198 was against eight BJP leaders including LK Advani, Murli Manohar Joshi and Uma Bharti for instigating the demolition of the structure..Initially, there was no charge of conspiracy under Section 120B of the IPC against the accused in any of the FIRs. However, the charge of Criminal Conspiracy was added later on..Trial with respect to FIR 198 initially began at a Special Court at Lalitpur, which was later transferred to Rae Bareilly..1993.In 1993, things took an interesting turn when the State government chose to set up a Special Court at Lucknow for expeditious disposal of 48 of the cases relating to the Babri demolition. This list, however, did not include FIR 198/1992..Subsequently, CBI filed a consolidated chargesheet in Lucknow against 49 persons in 49 cases including in FIR 198..It was then that the State government chose to act and it issued a notification adding FIR 198 to the list of cases transferred to the Special Court in Lucknow. However, the permission required to be taken from the High Court under Section 11 of Code of Criminal Procedure (CrPC) for transfer of the case to Special Court, was not taken..1997.In 1997, the Special Court, Lucknow held that there is prima facie evidence against the 49 accused and ordered a joint trial to be held..This was challenged in the High Court by way of revision petitions..2001.The High Court disposed of the revision petitions in 2001 holding that the notification issued by the State government transferring FIR 198 to Lucknow was invalid as the government had not consulted with the High Court under Section 11 of CrPC..Based on this order of 2001, the Special Court, Lucknow dropped the proceedings against the eight BJP leaders named in FIR 198 and thirteen other accused..2010-11.The CBI filed a revision petition in the High Court against the same but it was dismissed in 2010 leading to the current appeal in Supreme Court..Meanwhile in 2003.Meanwhile, since the High Court by its 2001 order had held that FIR 198 could not stand transferred to Special Court in Lucknow, CBI filed an application before the Special Judicial Magistrate, Rae Bareilly to call back the records pertaining to FIR 198 from Lucknow and try the case at Rae Bareilly. The same was allowed..In 2003, the Rae Bareilly Court, discharged LK Advani but framed charges against 7 other accused..2005.This order was challenged in High Court by the seven accused who were not discharged and by the intervenor against discharge of Advani. The High Court held that there is prima facie case made out against all the accused including Advani. It, therefore, set aside the direction of the Rae Bareilly court with a direction that Advani shall be tried for offences under Sections 147, 153A r/w 149 and 153B of IPC. This trial is, thus, progressing at Rae Bareilly..Submissions today.The submission made by CBI and Haji Mahboob Ahmad, the intervenor were essentially that the eight accused who are being tried in Rae Bareilly should be tried under Section 120-B of the IPC in Special Court Lucknow..ASG Neeraj Kishan Kaul.The point canvassed by ASG Neeraj Kishan Kaul and Senior advocate Kapil Sibal was that even though FIR 198 was transferred out of Lucknow, the eight accused can still be made part of FIR 197 and tried for offence under Section 120-B..“According to me, they can be included in FIR 197. Charge under Section 120- B is already there and it should be tried in Lucknow..Our contention is that the 2001 order of the High Court is restricted to FIR 198 and not related to Section 120-B charge in FIR 197.”.Regarding the 13 other accused, who were let off by Special Court at Lucknow and, consequently, not tried anywhere, Kaul said:.“They have to be tried somewhere”..Kapil Sibal.The submission made by Sibal were similar. He argued that since consolidated chargesheet was filed, the eight accused could be tried at Lucknow for 120-B..In his written submissions too, Sibal’s client has submitted that the two cases arose out of the same “transaction” and hence the eight accused could be tried in FIR 197..The first FIR i.e. FIR No.197 of 1992 was registered at 5:15 p.m. and the second FIR No.198 was registered at 5:25 p.m. The other 47 FIRs were also related to the same transaction arising out of demolition of Babri Masjid. The view taken by the Special Court while dropping further proceedings against 21 accused in terms order dated 4.5.2001 that the two cases which were registered, were absolutely different, is completely erroneous.”.It was his contention that considering the role assigned to the accused in Crime No. 198/1992, their proximity to the site, the contents of their speeches, and the ultimate demolition of the mosque, their involvement was in the same transaction as registered as Case Crime No. 197/1992..Hence, he submitted that,.“…virtually there was no need to register Case Crime No. 198/1992 separately and the role of the accused therein could well be investigated in Case Crime No. 197/1992..The natural consequence would be that the Trial Court at Lucknow would also have jurisdiction to commit and undertake the Trial in Case Crime No. 198/1992 as the Addendum Notification dated 08.10.1993 would not be needed to confer jurisdiction on the Ld. Trial Court at Lucknow.”.Importantly, Sibal also argued that the trial has been going on for years now with little progress..“Twenty five years have passed. Only 150 of the 800 witnesses have been examined. That in itself is scandalous.”.KK Venugopal.Venugopal placed heavy reliance on the Allahabad High Court order of February 2001, which had set aside the transfer of the Rae Bareilly case to Lucknow..“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. There is no purpose served by changing the venue again. If transferred to Lucknow, trial will have to start de-novo.”.Venugopal also submitted that transferring the case to Lucknow will result in the accused losing one arena of appeal and will be a violation of fundamental rights..“Using Article 142 to negative fundamental rights is something which no court will do.”.Reactions from the Bench.Justice Rohinton Fali Nariman was constantly at odds with the submission of Senior Counsel KK Venugopal. He said that the Court can exercise inherent power under Article 142 to serve the ends of justice, especially in a case like this where a technical shortcoming had led to the dropping of charges by Lucknow Court..To Venugopal’s argument that fundamental rights cannot be negatived by exercising Article 142, Justice Nariman said,.“You cannot argue violation of fundamental rights due to orders of a court. That argument is not available due to a 9-judge Bench decision of this Court.”.Regarding Venugopal’s submission that criminal conspiracy charge if required, can be tried at Rae Bareilly, Nariman J. asked what would be the consequence, if it leads to different conclusions at Lucknow and Rae Bareilly..“What if the two courts come to different conclusion on the same set of facts? There can only be one conspiracy as far as we understand”..On the technical issue of permission of High Court not being taken, he said.“This is why we have to do justice in such cases…where, because of a technical defect, justice is defeated.”.The Court proceeded to reserve its judgment.