2017 (4) TMI 1564 - SC - Indian Laws

Supreme Court orders joint trial transfer and additional charges in Babri Masjid demolition case

The Supreme Court, using its powers under Article 142, directed the transfer of proceedings from Rae Bareilly to Lucknow for a joint trial in a case ... Demolition of Babri Masjid - offences of dacoity, robbery, causing of hurt, injuring/defiling places of public worship, promoting enmity between two groups on grounds of religion, etc. - HELD 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. 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 - A number of judgments have been cited including the celebrated Supreme Court judgment in Supreme Court Bar Association v. Union of India and Anr. [1998 (4) TMI 531 - SUPREME COURT], 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. 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, 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 Rae Bareilly to the High Court itself - 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. The proceedings 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 - Appeal disposed off. Issues Involved:1. Validity of notifications and jurisdiction of Special Courts.2. Charges of criminal conspiracy and related offenses.3. Procedural irregularities and curable defects.4. Power of Supreme Court under Article 142.5. Transfer of proceedings and joint trial necessity.Detailed Analysis:1. Validity of Notifications and Jurisdiction of Special Courts:The case arose from the demolition of Babri Masjid, with two FIRs lodged on 6th December 1992. FIR No. 197 of 1992 was against kar sewaks for various offenses, and FIR No. 198 of 1992 was against eight named individuals for offenses under Sections 153-A, 153-B, and 505 IPC. Initially, a Special Court at Lalitpur was set up, but later, notifications were issued to try these cases at a Special Court in Lucknow. The High Court of Allahabad, in its judgment dated 12th February 2001, held that the notification dated 8th October 1993 was invalid due to lack of consultation with the High Court, which was a curable legal infirmity.2. Charges of Criminal Conspiracy and Related Offenses:The CBI filed a consolidated charge sheet against 48 persons, including prominent leaders, alleging criminal conspiracy under Section 120-B IPC along with other offenses. The Special Judge, Lucknow, found a prima facie case and framed charges. However, the High Court's judgment on 12th February 2001, set aside the framing of charges under Sections 153-A, 153-B, and 505 IPC against the eight accused in FIR No. 198 of 1992, stating the Special Court at Lucknow had no jurisdiction over these charges.3. Procedural Irregularities and Curable Defects:The CBI accepted the High Court's judgment and requested the State Government to rectify the defect in the notification, which was rejected. The CBI did not challenge this rejection. Instead, it filed a supplementary charge sheet against the eight accused at Rae Bareilly. The Special Court dropped proceedings against 21 persons, including the eight accused, leading to a fractured prosecution.4. Power of Supreme Court under Article 142:The Supreme Court, exercising its power under Article 142, aimed to do complete justice by transferring the proceedings from Rae Bareilly to Lucknow for a joint trial. The Court held that the impugned judgment artificially divided offenses and offenders, which was erroneous. The Supreme Court emphasized that Article 142 allows it to ensure complete justice, even if it means relaxing the application of law in view of peculiar facts and circumstances.5. Transfer of Proceedings and Joint Trial Necessity:The Supreme Court directed the transfer of proceedings from Rae Bareilly to Lucknow, framing additional charges under Section 120-B IPC against the accused. The Court mandated a joint trial without a de novo trial, ensuring that the trial proceeds on a day-to-day basis until its conclusion. The CBI was instructed to ensure the presence of prosecution witnesses on every date fixed for evidence.Conclusion:The Supreme Court's judgment aimed to rectify procedural irregularities and ensure a joint trial for all accused, emphasizing the importance of complete justice under Article 142. The Court's directions included the transfer of proceedings, framing of additional charges, and expeditious completion of the trial.