The Central Bureau of Investigation has moved the Supreme Court against a judgment of the Allahabad High Court upholding the dropping of conspiracy charge by a special court against BJP leaders L.K. Advani, Murli Manohar Joshi, Uma Bharti and 18 others in the Babri Masjid demolition case.
The Lucknow Bench of the High Court on May 20, 2010 dismissed the CBI's revision petition for a direction to proceed with the conspiracy charge against Mr. Advani and others.
Nine months later, the CBI has now filed the appeal with an application for condonation of delay. The Supreme Court has the discretion to accept or reject the appeal on the ground of limitation as it is filed well beyond the 90-day period.
Mr. Advani and 20 others faced charges in two cases arising out of two separate first information reports. In the first FIR, conspiracy alleged against “lakhs of unknown kar sevaks” was for the offence of demolition (case 197). The second FIR, which specifically charged Mr. Advani and other leaders with making inflammatory speeches leading to the demolition (case 198), was tried in a special court in Rae Bareli. The two cases were later merged and handed over to the CBI, which filed a composite charge sheet on October 5, 1993.
Technical flaw
However, due to a technical flaw, the two cases were revived by an order of the High Court on February 12, 2001. On May 4, 2001, the sessions judge dropped the conspiracy charge against Mr. Advani and others on the ground that case 197 related only to kar sevaks. This order was upheld by the High Court. Assailing the High Court judgment, the CBI said the trial court had erroneously concluded that Mr. Advani and 20 others were not entitled to be tried in case 197 but should be tried in case 198. This distinction was made on the ground that persons against whom only instigation and allied offences were made out should be relegated to case no. 198.
However, the persons who had indulged in the actual demolition should be tried in case 197, besides for snatching of cameras and assault on mediapersons.
The CBI contended that the bifurcation attempted by the trial court and approved by the High Court was completely erroneous in law. The offences of instigation, facilitation, the actual demolition of the disputed structure on December 6, 1992, and the continuous assault on the mediapersons all formed a single connected transaction and might also be a concerted conspiracy under Section 120B of the Indian Penal Code.
The error in the trial court and High Court judgments vitiated the fundamental principles of criminal jurisprudence that in a continuous criminal act which might attract various offences under the IPC, the transaction had to be viewed as a whole and evidence could not be adduced in two different courts, the CBI said.
As a result of the High Court judgment, approximately 200 more witnesses would have to be examined in case 198, in addition to their being examined as witnesses in case 197. This resulted in a serious miscarriage of justice and disabled effective trial, the CBI said.
