A tale of two cases

NEW DELHI AUG. 10 . The debate in Parliament on the Babri Masjid demolition case in which the Opposition rapped the Central Bureau of Investigation for failure to include the charge of conspiracy against the Deputy Prime Minister, L.K. Advani, and seven others, overlooked the fact that all the eight accused still face the crucial conspiracy charge in the Lucknow court.

CBI sources point out that all the 49 accused persons in the Ayodhya case, including Mr. Advani, the Human Resource Development Minister, Murli Manohar Joshi, and six other senior Bharatiya Janata Party and Vishwa Hindu Parishad leaders, still face the charge of conspiracy to demolish the Babri monument under Section 120-B of the Indian Penal Code (IPC) in the case (no.197/92) before the Lucknow Special Court.

These sources sought to dispel the impression that the senior BJP leaders have been let off the hook by the CBI in the case (no. 198/92) being tried in Rae Bareilly since they are also accused in the case (no.197/92) in Lucknow, where the conspiracy charge has been made out against them.

Though legal sources feel the ideal situation would be to try both the cases in the same court as they relate to the same incident at Ayodhya, the CBI has been left with little option but to present evidence relating to the charge of conspiracy in case No. 197/92 before the Lucknow court as and when the proceedings take off in that court.

CBI sources say the agency has taken the 1990-92 period as the one relating to conspiracy and all the evidence, including tapes and reports, gathered by it would be brought before the Court at Lucknow. Legal circles feel that it could well turn out to be a tough exercise to wish away Section 120-B from the main case (no. 197/92).

Although the Law Minister, Arun Jaitley, forcefully argued in Parliament that the charge sheet filed by the U.P. Police against Mr. Advani and others on February 27, 1993 did not mention conspiracy and the case was handed over to the CBI six months later, the legal opinion is that the CBI could have filed a supplementary charge sheet related to conspiracy if evidence so indicated.

The other view is that the October 5, 1993 composite charge sheet of the CBI in all the 49 cases, including no.198/92, took care of all aspects.

The crux of the problem lies in the failure to rectify the October 8, 1993 notification of the U.P. Government, which has prevented a composite trial in the Babri Masjid demolition case.

Much will now depend on the outcome of the CBI's revision petition of June 19, 2001, admitted by the Lucknow Bench of the Allahabad High Court. This is against the order of the Special Judge, Lucknow, dropping all proceedings against 21 accused, including Mr. Advani and seven other VIPs. The High Court's order on the revision petition will decide whether or not Mr. Advani and others will face trial for conspiracy in Lucknow, if not in Rae Bareilly.

Legal experts also raise another question: Will it be legally tenable for the accused to stand trial in two different courts for different offences arising out of the same incident of 1992 — the demolition of Babri Masjid.

In May-June 2001, the CBI had written to the Department of Personnel and Training (DoPT), Ministry of Personnel, requesting that the U.P. Government should issue a fresh notification in consultation with the High Court entrusting crime no. 198/92 to the Special Court, Lucknow. However, the Department flatly replied it would not be proper for the Union Government to issue any "directions or instructions or tender any advice to the State Government in respect of a matter which is within the State's exclusive jurisdiction." It advised the CBI directly to approach the State Government. The agency subsequently wrote to the Chief Secretary, U.P. Government, on June 14, 2001. However, that request has not received a positive response.

Another window has been opened by the Special Leave Petition (SLP) filed by Mohammad Aslam Bhure in the Supreme Court pleading that the trial in both the Rae Bareilly and Lucknow cases be held together. Mr. Bhure's petition seeks a review of the apex court's order of November 29 last year that crime no.198/92 be tried at the Special Court at Rae Bareilly. If allowed to go on, the trial would make the review petition infructuous, Mr. Bhure has pleaded.

On August 6, the Lucknow Bench of the Allahabad High Court passed an interim order staying till September 24 the proceedings in the Special CBI court trying the Babri Masjid demolition case against the 26 accused. Justice N.K. Mehrotra passed the order on two petitions — filed by the CBI and the then District Magistrate of Faizabad, R.N. Srivastava. The CBI, authoritative sources point out, does not want to go ahead with charges against only the 26 accused, leaving the 21 against whom the revision petition is pending in the High Court.