The Allahabad High Court has raised a technicality that can now be set right to pave the way for the prosecution of L.K. Advani and others in the Babri Masjid demolition case, but the judgment has proved wrong the plea that the cases against the m are of a political nature.
EVEN by the debased standards of Indian politics, it requires much gall and enormous reserves of mendacity to misrepresent a High Court judgment which removes barriers in the way of prosecution for grave offences as one which enables the accused to go sc ot-free. The judgment which Justice Jagdish Bhalla of the Lucknow Bench of the Allahabad High Court delivered on February 12, 2001, in the criminal cases against Union Home Minister L. K. Advani and other Sangh Parivar leaders arising out of the demoliti on of the Babri Masjid on December 6, 1992, not only paves the way for speedy prosecution but censures the prosecution and, sotto voce, the accused, for the delays.
Justice Bhalla pointedly concluded what is, with respect, an able and manifestly impartial judgment with these stinging remarks:
"According to the prosecution the accused persons are either rich, influential or politically strong. In the process I recall the observations of the Hon'ble apex Court in the case of Ganesh Narain Hegde versus S. Bangarappa and others, 1995, SCC (Cri) 634, which are as follows: 'The slow motion becomes much slower motion when politically powerful or rich and influential persons figure as accused. FIRs are quashed. Charges are quashed. Interlocutory orders are interfered with. At every ste p, there will be revisions and applications for quashing and writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all the interruptions, the time would have taken its own toll: the witnes ses are won over; evidence disappears; the prosecution loses interest - the result is an all too familiar one.'
"The concept of the joint charge-sheet and joint trial has been adopted by the prosecution and accepted by the courts below. I am afraid this may not add to the slow motion becoming slower which is evident from the fact that for the last eight years the case is moving at a snail's pace. I pondered over the matter and it occurred to my mind that the above circumstances can further delay the completion of the trial. In the light of the above I am of the considered opinion that the trial court should ensur e speedy trial and in the process take necessary steps" (emphasis added throughout). This is not exactly an exoneration of Advani and Co.
On September 9, 1997, Judge Jagdish Prasad Srivastava, Additional Sessions Judge (Ayodhya Case), Lucknow, said in Para 59 of his order: "It is concluded that in the present case a criminal conspiracy to demolish the disputed structure of Ram Janam Bhoomi / Babri Masjid was hatched by the accused persons in the beginning of 1990 and was completed on 6-12-92. Shri Lal Krishan Advani and others hatched criminal conspiracies to demolish the disputed premises on different times at different places. Theref ore, I find a prima facie case to charge S/Shri Bala Saheb Thakre, Shri Lal Krishan Advani, Shri Kalyan Singh, Shri Vinay Katiyar, Shri Moreshwar Save... Ms. Uma Bharti, Ms. Sadhvi Ritambara, Maharaj Swami Sakshi, Shri Murli Manohar Joshi, Giriraj Kishore, Vishnu Hari Dalmia" and several others "under sections 147/ 153A/153B/ 295/295-A/505/ Indian Penal Code read with Section 120-B of Indian Penal Code and they are charged under the aforesaid offences."
R. N. Srivastava and D. B. Rai, who were at the time of demolition, District Magistrate and Senior Superintendent of Police respectively, of Faizabad district in which Ayodhya is situated, were also charged with conspiracy "under Section 120-B, Section 1 53-A/295/295-A/505/201 read with section 114 of Indian Penal Code on the basis of prima facie offence against them. Therefore, both the said accused persons are charged under the aforesaid sections. All the accused persons are directed to be prese nted in the Court on 17-10-1997 for framing of the charges."
The Judge insisted on their presence because the law requires it so that "the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried" (Section 228 (2) of the Criminal Procedure Code). The accused must himself be present to hear the charges and personally enter his plea of guilt or otherwise. His lawyer's presence will not suffice.
But the accused did not appear on that appointed date, October 17, 1997. They have successfully averted the opening of the trial for over three years by filing revision applications in the High Court - precisely the tactic to which the Supreme Court allu ded in the case of former Chief Minister of Karnataka S. Bangarappa.
Immediately after quoting the Supreme Court's remarks in that case, Justice Bhalla proceeded to uphold the order of the Sessions Judge in the main conspiracy case (No. 197) but set it aside in respect of one episode (covered in case No. 198) which was li mited to a meeting on the morning of the demolition at which Advani and others were present. This was because while issuing a notification assigning this limited case to the court dealing with the wider conspiracy, the State government did not consult th e High Court as the law required it should. That can be done even now. Indeed, it ought to be done.
This is how Justice Bhalla's judgment concludes: "In the premise the impugned order dated 9th September, 1997 passed by the Special/ Sessions Judge (Ayodhya Prakaran), Lucknow, for framing of charges is upheld as 48 cases referred to in the Schedu le of Notification No. 4421/VII-Nyaya-2-739/87 dated 9th September, 1993 are concerned and the impugned order is set aside with respect to case Crime No.198 of 1992 mentioned in Notification No. 5175/VII-Nyaya-2-739/87 dated 8th October, 1993 which being invalid does not confer any jurisdiction upon the courts below to take cognizance, commit and try the case relating to Crime No.198 of 1992 under Section 153-A, 153-B and 505 of the Indian Penal Code, Police Station Ram Janam Bhumi, Ayodhya, District Fa izabad. However, the mistake in issuing the said notification dated 8th October, 1993 is curable and it is open for the State government to cure the legal infirmity."
An activist Judge would have asked the State government to cure "the legal infirmity" by issuing another notification after the requisite consultation. He would have been perfectly within his rights in doing so. The rule of law on which the Supreme Court based its orders in the hawala and Indian Bank cases requires that the police should fairly and properly investigate cases in which offences are suspected to have been committed and the courts of law should try those cases in which a prima facie case is found to exist.
That is the very basis on which the Supreme Court has repeatedly asked the Maharashtra government to disclose what action it has taken on the recommendations of the Srikrishna Commission on the Mumbai riots of 1992-93. On February 26, a Bench of the cour t, comprising Chief Justice A.S. Anand and Justices R.C. Lahotti and Brajesh Kumar, directed the government to "file an affidavit disclosing action taken prior to July 21, 2000 (when the case was last heard) and also steps taken after July 2000 till date to implement the recommendations of the Commission." They included prosecution of certain persons against whom a prima facie case existed.
The Sessions Judge's order, which the High Court has upheld, found explicity that such a prima facie case did exist. "On a careful perusal of evidence produced by the prosecution in the present case, I have come to conclusion that the prima facie evidence as alleged against the accused persons is made out when section mentioned in the chargesheet will be detailed as the section of the offence then it would be clear as to against which of the accused of the offence is made out prima facie."
The Sessions Judge's 61-page order of September 9, 1997 is a most revealing document. It has been published in full as a CPI(M) publication entitled Ayodhya Conspiracy of Saffron Brigade Unmasked (Rs.3). This order was the culmination of a long-dr awn investigative process. On October 5, 1993, the Central Bureau of Investigation (CBI) filed a charge-sheet in the Magistrate's court after a thorough probe. On August 27, 1994, Special Judicial Magistrate Mahipal Sirohi found that a prima facie case existed which warranted full trial by the Sessions Court which alone, he felt, could pass an appropriate sentence. Thus, a judicial authority put the imprimatur on the CBI's work as did a higher authority, the Sessions Judge, later. Justice Bhalla of the High Court has rejected challenges to the validity of the committal order and upheld it - except in regard to Case No. 198 relating to the meeting of December 6, 1992. In order to appreciate its significance, the sequence of events must be conside red.
The Sessions Judge's order traced Advani's movements and those of his associates just prior to the demolition. "Shri Lal Krishan Advani and Shri Murli Manohar Joshi started for Ayodhya from New Delhi on 1.11.92 via Varanasi and Mathura. On 1.12.92, Shri Advani said in Kanpur that Kar Sewa does not mean Bhajan and Kirtan but it is meant for starting construction of Ram Mandir. Dr. Joshi asked the Central Government to withdraw the central forces and he further said that his party would face any hindrance whatsoever comes in the way of construction of Ram Mandir. On 2.12.92 Shri Advani said in Varanasi that the State Government would not use force of any kind on Kar Sewaks."
The Judge also recorded: "On December 5, 1992 a secret meeting was held at the house of Sh. Vinay Katiyar which was attended by Sh. Lal Krishan Advani, Pawan Kumar Pandey and a final decision to demolish disputed structure was taken. Their argument was t hat there was a ban on construction not on demolition and accused No.1 to 38 assembled near Ram Janam Bhoomi/Babri Masjid on 6.12.1992 and Sh. Lal Krishan Advani categorically said in his public speech, before the demolition of disputed structure that 'Today is the last day of Kar Seva. Kar Sewaks would perform last Kar Seva.' When he (Advani) came to know that central force was proceeding from Faizabad to Ayodhya, then he asked the public to block National Highway so that central forces do not r each Ram Janambhoomi. Prosecution has also contended that when disputed structure was being pulled down Sh. Advani asked Kalyan Singh not to tender his resignation till the disputed structure is completely pulled down."
Even if you omit the speech of December 6 (which is covered by case no. 198) the wider case of conspiracy for demolition (No.197) still stands. And, yet president of the BJP's Uttar Pradesh unit Kalraj Misra said: "We welcome the court verdict and it wil l be better to drop all cases related to the Babri Masjid demolition" (The Asian Age, February 16). The correspondent reported: "According to Mr. Misra the charge-sheet itself should be quashed" - a clear admission that it has not been quashed by Justice Bhalla and still stands. Misra proceeded in brazen falsehood to claim "The court verdict shows that the CBI does not have sufficient grounds to proceed in the matter and it was this that had caused the technical flaws in the second notificatio n which has now been set aside by the High Court." Kalraj Misra is either unable to read or unable to speak the truth. For the judgment says in the plainest words possible that the second notification (assigning case no. 198 to the same court which w as trying the wider conspiracy case no.197) was flawed only because the State government had omitted to consult the High Court. At as many as three places in his judgment Justice Bhalla said that the defect is "curable" and it is open to the State government "to rectify its mistake of illegality by issuing fresh notification after consultation with the High Court in accordance with law" (page 56, repeated at pages 150 and 153).
Justice Bhalla has, in any event, upheld the committal to trial before the Sessions Judge of the main case based on the consolidated charge-sheet of October 5, 1993. "I am of the opinion that no illegality has been committed by the courts below while tak ing cognizance of a joint/consolidated charge-sheet on the ground that all the offences were committed in the course of the same transaction and to accomplish the conspiracy; that the evidence for all the offences is almost the same and therefore thes e offences cannot be separated from each other irrespective of the fact that 49 different FIRs were lodged on the basis of which 49 criminal cases were registered by the police. Although there is no provision in the CrPC with regard to joinder of cha rge-sheets by the prosecution agency but on the other hand there is no prohibition also for the same. Learned courts below by permitting the filing of joint/consolidated charge-sheet has accepted in principle the permissibility of the joint/consolidated charge-sheet. As regards the offences regarding criminal conspiracy and common object of unlawful assembly they prima facie made out against the accused revisionists and since these offences are alleged to have been committed in the course of s ame transaction therefore the Special Court of A.C.J.M. (Additional Chief Judicial Magistrate) rightly took cognizance of the same and also rightly committed the same to the court of sessions." This exposes the falsehood retailed by Kalraj Misra that "the court verdict shows that the CBI does not have sufficient grounds..." It is a waste of contempt to comment on Uma Bharati's claims on the television on the judgment. Unfortunately, sections of the media also characterised the judgment as a "repriev e" for Advani and Co. Our colleges of journalism and newspapers ought to do better in educating correspondents in the law.
How did the confusion arise, in the first place, which led to the splitting of the cases and the resulting confusion? A criminal case is initiated by lodging a First Information Report (FIR) with the police which, after investigations, files a cha rge-sheet in the Magistrate's Court. On a perusal of the document charges are framed by that court. If the offence is grave and warrants a sentence greater than he can award, the magistrate "commits" the case to the Sessions Court.
The Babri Masjid was demolished on December 6, 1992 when a Bharatiya Janata Party Ministry headed by Kalyan Singh was in power in Uttar Pradesh and the Congress(I) government of P. V. Narasimha Rao was in power at the Centre. Kalyan Singh resigned immedi ately after the deed was done and President's Rule was imposed. Two FIRs were filed that day. FIR in Crime No.197 was lodged by the Station House Officer of Police Station Ram Janma Bhoomi at 17-15 hours.
The nomenclature is itself significant. The time of the offence was given as 12-15 p.m. However, it did not name as accused anyone in particular but "lacs of unknown Karsevaks". Only ten minutes later, another officer, who was in charge of the outpost of the same police station, lodged an FIR in Crime No. 198 citing 10 a.m. as the time of occurrence and naming eight politicians as accused - Ashok Singhal, Giriraj Kishore, L. K. Advani, Murli Manohar Joshi, V. H. Dalmia, Vinay Katiyar, Uma Bharti and Sad hvi Rithambhara.
More to the point, the two FIRs differed in the matter of the offences they alleged. The first, No. 197, alleged the wider case against "unknown" kar sevaks under the Indian Penal Code - Section 395 (dacoity); 397 (robbery or dacoity with attempt to caus e death or grievous hurt); 332 (causing hurt to deter public servants); 337 (hurt by endangering life or personal safety of others); 338 (grievous hurt); 295 (injuring or defiling place of worship with intent to insult the religion of any class); 297 (tr espass in any place of worship) and 153A (promoting enmity between different groups on grounds inter alia of religion), read with Section 7 of Criminal Law Amendment Act.
The eight politicians were charged in Crime No.198 only under Section 153A, Section 153B (imputations prejudicial to national integration) and 505 (statements conducing to public mischief). These are the ones the police cite when rabidly communal speeche s are delivered. This FIR was in respect of their speeches on the morning of December 6, just prior to the process of demolition.
Once an FIR is lodged and it is obvious both were recorded in a chaotic situation - the police are not limited in their investigation either by the offences alleged or the persons named. If the investigations disclose other offences or offenders, besides the ones listed in the FIR, the police can and ought to mention that fact in the charge-sheet.
Eventually, 49 FIRs were filed against 49 persons. (Additionally 47 other FIRs were filed in respect of the offences the kar sevak goons committed against mediapersons and expensive cameras they carried. This article does not deal with those cases.)
There were, thus, two distinct but related cases initiated at one and the same police station in respect of offences committed the same day, December 6, 1992. No.197 concerned the demolition while No.198 concerned provocative speeches preceding it. Se eds of confusion were sown shortly thereafter when they were assigned to different police agencies and different courts and a slip occurred when the second case (No.198) was assigned to the court trying the first (No.197). On December 10, investigati on in case No.198 was assigned to CB CID, Uttar Pradesh; the State police. Three days later, investigation in the graver demolition case (No. 197) was assigned to the CBI. The State was under President's Rule.
On December 16, the State government set up, after consulting the High Court, a Special Court of Judicial Magistrate at Lalitpur to try the No. 198 case. Section 11 of the Criminal Procedure Code empowers it to do that in respect of "any particular case or particular cases" but only "after consultation with the High Court". Its presiding officer is appointed by the High Court, not the State government. The State police submitted to the Special Court a charge-sheet against the eight politicians, on Febru ary 27, 1993, and the court took cognisance of the case on March 1. The venue was shifted to Rae Bareli; again, after consulting the High Court.
The State now requested the Centre to entrust to the CBI this case (No. 198) as well as 47 other related cases. The Centre did so on August 26, 1993 (Case No. 198 as 1/93, the others as 2/93 - 48/93). On September 8, the State government established a Sp ecial Court of Additional Chief Judicial Magistrate, a higher rank, for trial in Lucknow of the demolition cases. The next day, on September 9, it issued a formal notification under Section 11 of the CrPC setting up this Special Court "after consultation with the High Court". The offences it was to try or inquire into for committal to the Sessions Court were the ones investigated by the CBI. The Schedule listed 48 cases specifically. They included No. 197 and 47 other cases, but No. 198 was not inclu ded though it had also been entrusted to the CBI on August 26. This case was pending before the Special Judicial Magistrate Rae Bareli.
Meanwhile, the High Court appointed Vijay Verma to preside over the Special Court in Lucknow trying Case No.197 and 47 others. It was before him that on October 5, 1993 that the CBI filed the consolidated charge-sheet against the eight politicos, in Crim e No.198, as well as 32 others in Crime No.197 and 47 other related cases. The eight were also involved in Case No.197. Since then Case No. 198 was pending before the Rae Bareli Court, the notification of September 9 had to be amended to join this case w ith the rest. That was done by an amending notification on October 9, but, this one time, without consultation with the High Court. It was a careless slip. Justice Bhalla rightly struck down this amendment since it did not comply with the essentia l safeguard of consultation with the High Court. Having enforced the law, he repeatedly stressed that the defect was "curable". Another notification can be issued by the Uttar Pradesh government after consultation with the High Court.
What if the BJP regime headed by Chief Minister Rajnath Singh deliberately omits to do that? First, as CBI counsel P. K. Chaubey pointed out to Special Judge Srikant Shukla on February 23, even if FIR No. 198 is kept in abeyance, the Special Court should frame charges against all the accused named by the charge-sheet. This is because the subject matter of FIR No. 198 is anyway covered by FIR No. 197.
No.198 relates only to the provocative speeches delivered by eight leaders (including the three who are now Ministers) from Ram Katha Kunj Manch, a makeshift dais in the vicinity of the Babri Masjid, on the fateful day.
On the other hand, FIR No. 197 has "a wider canvas" as it covers the demolition and the criminal conspiracy that led to it. The CBI's charge-sheet accuses the three Ministers of having been part of the criminal conspiracy to demolish the mosque.
Secondly, the Supreme Court can be moved by any citizen on a public interest petition, to order the State government, by a writ of mandamus, to issue a notification under Section 11 after consulting the High Court. In the hawala case the court ordered th e CBI to probe and prosecute. Here the CBI has probed and launched a prosecution; but, by a procedural mistake on the part of the State government, no court is empowered to try Case No. 198. This case therefore stands on a higher footing than the hawala case. (Vineet Narain vs. Union of India (1998) 1 SCC 226).
There is no bar to the Special Court which is trying Case No. 197 from receiving evidence in respect of the speeches on December 6, 1992 since they form part of the same transaction. It would be evidence in support of the charges of conspiracy it is alre ady seized of. L. K. Advani, M. M. Joshi, Uma Bharti and others are already arraigned before the Special Judge in Case No. 197.
IT is important to note that every single argument against the order of September 9, 1997, for framing charges, was rejected by Justice Bhalla - save the one regarding the careless amendment of October 8, 1993 adding Case No. 198 to the rest before the L ucknow Court. This case was transferred from the Rae Bareli court to the Lucknow court, which had no jurisdiction to try it. As Justice Bhalla pointed out, it was not necessary "to annex any schedule" and list 48 cases. But once that was done, the 49th c annot be added without consulting the High Court. For the rest, Justice Bhalla upheld the validity of: (a) Vijai Verma's appointment as Special Judge and his cognisance of all cases (save No. 198); (b) the constitution of the Special Court in Lucknow; (c ) the CBI's investigations and (d) the consolidated charge-sheet of October 5, 1993.
Justice Bhalla upheld the order of September 9, 1997, framing the charges. Even if the one concerning the speeches of December 6, 1992 is dropped, the conspiracy case survives. The charges are validly framed.
"This Court while keeping in mind the above considerations has earnestly considered and examined the impugned order dated 9th September, 1997 passed by the trial court for framing charges against the accused revisionists and does not find any infirmit y with respect to the cases referred to in the Schedule of Notification No. 4421/VII-Nyaya-2-793/87 dated 9th September, 1993. Further, the courts below committed jurisdictional error as far as case Crime No. 198 of 1992 is concerned, which is cur able. In the light of the above no interference is warranted in the impugned order of the trial court as far as the cases referred to in the schedule of Notification No. 4421/VII-Nyaya-2-739/87 dated 9th September, 1993 are concerned." A trial can no longer be averted.
In the hawala case, L. K. Advani resigned from the Lok Sabha and decided to stay out till his "name was cleared". That he does not follow his own precedent in this case is significant. Significantly, not once has he ventured to offer to face trial before a court of law. He has, instead, taken advantage of the very tactics which the Supreme Court deplored in the Bangarappa case. But even Bangarappa never contended that the cases against him were "political". If anything the demolition of a house of worsh ip involves graver moral turpitude than the hawala corruption. The press did not report the following remarks by the Judge: "Litigation regarding title over a disputed structure is, no doubt, a dispute of civil nature but demolition of a structure is a criminal offence."
In these telling words, Justice Jagdish Bhalla has sharply rejected Lal Kishan Advani's dishonest plea that the cases against him are of a "political" nature. That, they are not. He is accused of "a criminal offence" of perpetrating a crime. And he shoul d have the decency to face the charges in the court - after resigning from his office as Union Home Minister. As Home Secretary in the U.K. Reginald Mavelling did, though the charges implicated a former business associate and not himself.
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