A Supreme Court Bench of Justices P.C. Ghose and Rohinton Nariman on Thursday posted for detailed hearing the CBI appeal against the dropping of the criminal conspiracy charge against veteran BJP leader L.K. Advani and other top party leaders after two weeks.
The Bench re-assembled with Justice Nariman returning as puisne judge, but Mr. Advani's counsel and senior advocate KK Venugopal told the Bench that he was on his legs in another part-heard dispute between two factions of a Kerala church.
“We will adjourn it then...” Justice Ghose said.
Justice Nariman asked the lawyers present, Additional Solicitor General N.K. Kaul for the CBI and senior advocate Kapil Sibal for another party, among others, to file written submissions before the next hearing fixed for April 6, 2017.
“You all file your written submissions so that we can focus on the issues in the matter,” Justice Nariman said.
Justice Nariman, who made cutting remarks in a March 6 hearing that the conspiracy charge against the leaders should be revived, was conspicuously absent from the March 22 hearing.
Justice Ghose was sitting with Justice Deepak Gupta on Wednesday while Justice Nariman was heading another Bench.
However, Justice Ghose adjourned the hearing by 24 hours for Justice Nariman to return to the Bench.
The conspiracy charge against Mr. Advani and leaders lsuch as ike Uma Bharti, Murli Manohar Joshi, Vinay Katiyar, Sadvi Ritambara, Giriraj Kishore and Vishnu Hari Dalmia was dismissed.
Noting that “there is something very peculiar going on in this case” , Justice Nariman indicated on March 6 that the Court intends to examine in detail why the conspiracy charge against the leaders were dropped on mere technical grounds and never revived all these years.
“We prima facie do not approve of the way these people have been discharged... And no additional chargesheet filed so far? See, people cannot be discharged like this on technical grounds,” Justice Nariman observed orally. He said: “we will allow you [CBI] to file supplementary charge sheet by including the conspiracy charge. We will ask the trial court to conduct a joint trial in a Lucknow court”.
Mr. Venugopal had strongly objected to the turn of events and argued that the conspiracy charge against Mr. Advani and other leaders were already dropped, and its revival would mean the reexamination of the 186 witnesses who had deposed in the case. He pointed out that the CBI had appealed the Supreme Court after an inordinate delay.
But the Bench remained adamant, saying it would choose to even condone the delay and hear the case on March 22, 2017.
The Babri Masjid demolition case stemmed from two crime files: Crime No: 197/1992 and Crime No: 198/1992. Both were filed shortly after the disputed structure of Babri Masjid was demolished on December 6, 1992.
Crime no. 197/1992 was registered in the Ayodhya Police Station against “lakhs of unknown kar sevaks”. This FIR dealt with the actual demolition of the masjid. It lined up a bunch of 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 most severe of these offences could get the offender up to 10 years in jail.
The second one, Crime no. 198/1992, was registered against 12 persons, including Ashok Singhal, Giriraj Kishore, Advani, Murli Manohar Joshi, Vishnu Hari Dalmiya,Vinay Katiyar, Uma Bharati and Sadhvi 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 integrations and statements conducing to public mischief. Maximum punishment, if found guilty for these offences, was up to five years'’ imprisonment. The cases are being tried in courts in Lucknow and Rae Bareilly, respectively.
The CBI took over Crime 197 in Lucknow, while 198 remained with the State CID in Rae Bareilly. Eventually 198 also got transferred to the CBI and began being heard in the Lucknow Court.
Now with CBI investigating both crimes as one, a joint chargesheet was filed on October 5, 1993 accusing Mr. Advani and other top parivar leaders of conspiracy.
The CBI charge sheet had alleged that a secret meeting took place at the residence of Katiyar on the eve of the demolition during which the final decision to bring down the disputes structure was taken. The Special Judicial Magistrate and the Additional Sessions Court also found the conpsiracy prima facie tenable.
However, in February 2001, the Lucknow Bench of the Allahabad High Court found a technical error in the manner Crime 198 was transferred to the CBI without consulting the High Court. Though it did not touch upon the conspiracy charge against the top leaders, the High Court asked the Uttar Pradesh government to correct the flaw. Subsequent governments failed to act and Crime 198 finally got detached and returned to Rae Bareilly.
On May 4, 2001, Special Judge, Lucknow, Shrikant Shukla dropped the conspiracy charge against Advani and 20 others on the ground that Crime 197 – the Special Court was only trying this crime – was only regarding the actual demolition and not the hatching of any conspiracy. On May 20, 2010, the Allahabad High Court upheld Judge Shukla's order while dismissing CBI's revision petition.
Arguing before the Supreme Court in its appeal on February 19, 2011, the CBI submitted that Judge Shukla made an “artificial distinction” in the demolition case in order to drop the names of Advani and the 20 others for the reason that they did not participate in the “actual demolition”. The CBI called for a joint trial of both Crime nos. 197 and 198 like how they did previously.
“Acts of instigation, facilitation, the actual demolition of the Masjid, the continuous assault on media persons, thus, form a single connected transaction and can well be a concerted conspiracy under Section 120-B of the IPC. In respect of continuous criminal act attracting various offences, the transaction has to be viewed in as a whole and evidence cannot be led at two different courts,” the CBI said in its 2011 appeal.
In his defence, Mr. Advani had argued that the entire endeavour of the CBI to file a composite chargesheet and foist conspiracy charges against him and the other leaders during the UPA government's time was a politically motivated one. Mr. Advani had claimed that the Special Court had in 2001 rightly come to the firm conclusion that it had no jurisdiction to hear the charge of conspiracy. Mr. Advani defended that the CBI's appeals were sheer abuse of law.
