Questions about a charge-sheet

The key accused in the Babri Masjid demolition case escape the conspiracy charge thanks to a diluted charge-sheet filed against them by the CBI at the special court in Rae Bareli.

in New Delhi

THE prosecution of the accused in the Babri Masjid demolition case by the Central Bureau of Investigation (CBI) has always been under cloud ever since the Bharatiya Janata Party and its allies came to power at the Centre. Even though the CBI is under the administrative control of Prime Minister Atal Bihari Vajpayee, the continuance of L.K. Advani and Murli Manohar Joshi, two of the key accused in the case, in his Cabinet has often raised questions about the fairness with which the CBI prosecuted the case. The government and the BJP had pointed to the continuance of the CBI's prosecution of these two leaders, and another accused in the case, former Union Minister Uma Bharati, as proof of the investigative agency's independence, even though they believed that the case was politically motivated. The two have often opposed the Opposition's demands for the resignation of these leaders from the government, arguing that they did not influence the CBI.

However, the image of the CBI as an independent agency of investigation and prosecution, so consciously built up by the government and the BJP in the demolition case, has suffered a setback following the CBI's filing of a fresh charge-sheet against Advani, Joshi and others in the special court at Rae Bareli on May 30, 2003 (Frontline, June 20). The eight accused in this case include, apart from Advani, Joshi and Uma Bharati, the president of the BJP's Uttar Pradesh unit, Vinay Katiyar, and the leaders of the Vishwa Hindu Parishad (VHP), Ashok Singhal, V.H. Dalmia, Sadhvi Ritambara and Acharya Giriraj Kishore.

The CBI, in its latest charge-sheet, has accused them of inciting communal feelings that led to the demolition of the Babri Masjid on December 6, 1992, but refrained from alleging that they had entered into a criminal conspiracy to demolish it. The failure to include the charge of criminal conspiracy has led to fears that the CBI may not be serious in pursuing the case as long as the BJP-led coalition is in power at the Centre.

Specifically, the CBI has pressed charges against these accused under various sections of the Indian Penal Code (IPC), namely, 153A and 153B (spreading communal frenzy), 147 (rioting), 149 (committing a criminal act with a common object), and 505 (creating ill will among different classes at a place of worship). Based mainly on the statements of witnesses, the CBI's charge-sheet has alleged that all the eight accused were present at Ayodhya and made provocative speeches, thereby leading to the unlawful assembly of people and the violence and the demolition. The charge of criminal conspiracy under Section 120B of IPC would have made each of the accused responsible for the demolition, even if they were not directly involved in the actual commission of the crime.

It would be relatively easy for the accused to deny charges other than that of criminal conspiracy. To deny a charge of criminal conspiracy, the accused may have had to disassociate themselves from the entire Ramjanmabhoomi movement, which would have not only made their case less convincing, but made it difficult for them to adopt their current aggressive stand on the Ayodhya issue, and Hindutva as a whole. They would have been under considerable pressure to hide behind technicalities and procedural flaws and advance the argument, without any legal merit, that the charge under Section 120B of the IPC was not totally warranted.

The issue of charging the accused with criminal conspiracy is inextricably linked with the chronology of the case. Following the demolition of the Babri Masjid and the imposition of President's Rule in Uttar Pradesh, several cases were instituted by the State government in connection with the demolition. Of these, the investigation with regard to the first information report (FIR) of Crime No.197 was entrusted to the CBI on December 13, 1992. This FIR did not name anyone in particular, but accused lakhs of kar sevaks for the demolition. Although the kar sevaks were accused of entering into a criminal conspiracy, the allegation was too general to have resulted in anyone's conviction. Therefore, the then government of the State, which was under President's Rule, felt the need to file another FIR (Crime No. 198) to charge some of the accused, including Advani and seven others, under various sections of the IPC.

On December 16, 1992, the State government, after consultation with the Allahabad High Court, issued a notification establishing a special court of Judicial Magistrate at Lalitpur (this was later shifted to Rae Bareli) to try the case relating to Crime No. 198. This case was entrusted to the State Crime Branch-Criminal Investigation Department (CB-CID), which submitted a charge-sheet against the eight accused leaders on February 27, 1993. This charge-sheet did not contain any conspiracy charge against the accused. As it was the first charge-sheet filed after the demolition, it was natural for the prosecution to think that further investigation was necessary to sustain the charge of conspiracy and that such a charge could be added at a later stage. It is this charge-sheet that has now been filed afresh by the CBI in the special court at Rae Bareli on May 30. The CBI's move has turned the trial clock back by nearly a decade, after it made considerable progress in the investigation and prosecution of the accused through its composite charge-sheet merging cases involving Crime No. 197 and 198. To understand the present controversy, one needs to trace the genesis of the procedural flaw that has seemingly threatened to undo the progress made in the case.

On August 25, 1993, the State government requested the Central government to entrust the investigation of Crime No. 198 and 47 related cases to the CBI, and the request was conceded by the Centre the next day itself. On September 8, 1993, the State government, after consultations with the Allahabad High Court, issued a notification creating a special court of the Additional Chief Judicial Magistrate (ACJM) at Lucknow for the disposal of the cases relating to the demolition investigated by the CBI. On September 15, 1993, the Allahabad High Court appointed Vijay Verma the ACJM for the purpose. Considering that this special court had the jurisdiction to try Crimes No. 197, 198, and 47 other related cases, the CBI, on October 5, 1993, filed a consolidated charge-sheet against the eight accused in Crime No. 198 and 32 accused in Crime No. 197 before the court of the ACJM. On October 8, 1993, the State government, without due consultation with the High Court, as required under the law, issued another notification to transfer jurisdiction from the court at Rae Bareli to Judge Vijay Verma's court in Lucknow with respect to Crime No. 198. Justice Jagdish Bhalla of the Allahabad High Court struck down this notification on February 12, 2001, ruling that the State government did not fulfil the legal requirement of consulting the High Court before issuing it. O.P. Sharma, a senior advocate of the Supreme Court and counsel for petitioner Mohammed Aslam alias Bhure who appealed against Justice Bhalla's order in the Supreme Court, argued that the October 8, 1993 notification was frivolous as the September 8, 1993 notification, duly issued with the High Court's consent, was sufficient for the CBI to file a consolidated charge-sheet before Judge Verma.

During a debate in Parliament, Union Law and Justice Minister Arun Jaitley argued that the then U.P. Governor, Motilal Vora, had rejected the CBI's request for clubbing the cases arising out of Crime Nos. 197 and 198, on the grounds that the charge of conspiracy cannot be levelled against the eight accused in Crime No.198. If that was true, Jaitley did not unravel the mystery surrounding the issue of notification on October 8, 1993 even though the Governor was opposed to it, and the mandatory consultation with the High Court had not preceded it.

Justice Bhalla's order also partly reversed the September 9, 1997 judgment of Additional Sessions Judge J.P. Srivastava for framing charges against all the accused as per the CBI's consolidated charge-sheet. Justice Bhalla set aside the Sessions Judge's order with respect to Crime No. 198 on the grounds of lack of jurisdiction because the State government did not follow the proper procedure of prior consultation with the High Court before issuing the notification on October 8, 1993. However, Justice Bhalla added that the mistake was curable and it was left to the State government to cure the legal infirmity.

The roots of the present controversy can be traced to Justice Bhalla's order. Had he not taken the procedural flaw arising out of the frivolous and redundant notification of October 8, 1993 seriously, the trial of all the accused in the demolition case could have proceeded smoothly. Instead, successive governments in Uttar Pradesh, including the Rajnath Singh-led BJP government and the current Mayawati-led BSP-BJP coalition government, used Justice Bhalla's order to disrupt the trial and prosecution of the eight accused. Rather than cure the procedural flaw, as pointed out by Justice Bhalla, and let the composite trial of all the accused in the demolition case continue, the Mayawati government revived the Rae Bareli Special Court, and once again entrusted the case involving Crime No.198 to it in September 2002.

THE Supreme Court's three-member Bench headed by the then Chief Justice, G.B. Pattanaik, upheld the Mayawati government's decision on November 19, 2002 by dismissing Bhure's special leave petition against Justice Bhalla's order. The Supreme Court has thereafter admitted for hearing Bhure's petition seeking a review of the Pattanaik Bench's order. In his petition, Bhure, through his counsel, O.P. Sharma, alleged that the Bench had committed a palpable error in rejecting his appeal against Justice Bhalla's order, without hearing his specific submissions.

Whatever the merits in the Supreme Court's upholding of the Mayawati government's decision to run a parallel trial at Rae Bareli for the VVIP accused (in Crime No.198) in the demolition case, the idea of having two separate trials for different accused persons for the same offence of demolition makes little sense.

More important, Justice Bhalla did not disagree with the substantive conclusion of Judge Srivastava that the accused in Crime No.198 were liable to be prosecuted for the charge of criminal conspiracy as well. Judge Srivastava said in his order: "It is quite clear that in regard to demolition of the disputed structure of Ram Janam Bhumi/Babri Masjid, the accused indulged in some activities, and in the same context from September 1990 a Rath Yatra was performed by Lal Krishna Advani from Somnath to Ayodhya, where he contacted different leaders of Hindu Religious Sect or political parties at which his main subject was the felling of the disputed structure of Ram Janam Bhumi/Babri Masjid."

Judge Srivastava further ruled: "So far as the question of conspiracy under Section 120B of IPC is concerned, it is not necessary to have proved evidence because a conspiracy is hatched in secrecy and the knowledge of this conspiracy comes to the remaining accused gradually, slowly, and this knowledge is discernible from what becomes clear by their speeches and by actions done by them."

Judge Srivastava concluded that the criminal conspiracy to demolish the disputed structure was started by the accused in 1990 and completed on December 6, 1992. Advani and others had, at different times and at different places, made schemes of criminal conspiracy to demolish the disputed structure, he said. Hence he found prima facie basis on the strength of evidence to charge all the accused under various sections of the IPC (read with Section 120B of the IPC).

Contrary to the Law Minister's claim in Parliament that the charge of criminal conspiracy was sought to be included against the eight accused in Crime No.198 surreptitiously, the chronology of the case shows that it was done in a very transparent manner and that Judge Srivastava, who considered the revision petitions against the clubbing of the cases arising out of Crime Nos.197 and 198, found prima facie evidence of conspiracy against all the accused, on the basis of the CBI's consolidated charge-sheet. Rather than rely on its own composite charge-sheet, filed after due investigation, to build the case against the eight accused under Crime No. 198 at Rae Bareli, the CBI seems to have found greater merit in the State CB-CID's February 1993 charge-sheet, which excluded conspiracy charges probably because of insufficient investigation at that stage. The CBI today stands exposed not only for partisan handling of the case, but also for lack of professionalism.