The order and the law

The decision of the Special Court at Rae Bareli to discharge Deputy Prime Minister L.K. Advani but frame charges against seven other accused in the Babri Masjid demolition case is based on a 1978 Supreme Court ruling, the relevance of which in the Ayodhya case is debatable.

in New Delhi

IN a baffling order on September 19, Special Judicial Magistrate V.K. Singh of the Special Court at Rae Bareli, Uttar Pradesh, entrusted with the trial of eight accused leaders in the Babri Masjid demolition case, acquitted one of them while ordering the framing of charges against the remaining seven on October 10. The leader discharged from the case was Deputy Prime Minister L.K. Advani.

The Central Bureau of Investigation (CBI) had alleged in its charge-sheet before the Rae Bareli court that Advani, Human Resource Development Minister Murli Manohar Joshi, former Union Minister Uma Bharati, Bharatiya Janata Party's Uttar Pradesh unit chief Vinay Katiyar, and Vishwa Hindu Parishad leaders Ashok Singhal, Giriraj Kishore, Vishnu Hari Dalmia and Sadhvi Ritambara had delivered inflammatory speeches at Ayodhya prior to the demolition of the Babri Masjid on December 6, 1992.

The CBI also alleged that these leaders had, through their speeches, incited kar sevaks to demolish the mosque. The CBI did not include the charge of conspiracy under Section 120-B of the Indian Penal Code (IPC) against these leaders because it was not part of the First Information Report (FIR) in Crime No.198, registered soon after the demolition, on the basis of which the CBI built up its case. The decision to entrust this case to the Rae Bareli court in 2002 by the Mayawati government in Uttar Pradesh, after delinking it from the composite case, which included the conspiracy charge, before a Lucknow court, is currently under challenge before the Supreme Court. The proceedings of the Rae Bareli court are thus already controversial because of the CBI's failure to press the conspiracy charge against these leaders.

The September 19 order has thus raised the question whether the CBI presented to the court the full evidence against Advani so as to convince the magistrate to frame charges against him. Another question that remains unanswered is how the Magistrate separated the case against Advani from the rest, even though the charges and the evidence against them were almost common. These questions could be answered only after the text of the 130-page order is made available to the public. However, initial reports suggest that the Magistrate found that the evidence against Advani was based on mere suspicion, and this was insufficient to frame charges against him.

It appears that two viewpoints emanated from the records of witnesses produced by the CBI - one pointing to a prima facie case against Advani and the other contradicting it. The claim of some witnesses that Advani attempted to control the unruly mob at Ayodhya on December 6, 1992, and made frequent appeals to kar sevaks not to disturb the structure appears to have strengthened the Magistrate's view that the CBI's charges against him were based on mere suspicion.

Whatever the merits of the Magistrate's decision, it is possible to question the relevance of the Supreme Court's judgment in the case of Union of India vs. Prafulla Kumar Samal and another, cited by him as the legal basis of his order. This judgment was unanimously delivered by Justices S. Murtaza Fazal Ali and D.A. Desai on November 6, 1978, in a corruption case where the Union of India appealed against the order of the Orissa High Court which upheld the order of the Special Judge of the trial court in Puri discharging the respondents, Samal and Debi Prasad Jena.

The allegation was that Jena, a land acquisition officer, aided and abetted Samal, a Central government servant, in getting a huge sum of money for a piece of land in Cuttack that was being acquired by the Central government and which in fact belonged to the government itself, while Samal was its lessee. The Special Judge, after having gone through the charge-sheet submitted by the police and the statements made by the witnesses before the police as also other documents, came to the conclusion that there was no sufficient ground for framing a charge against the respondents and he accordingly discharged them under Section 227 of the Code of Criminal Procedure (CrPC). The High Court of Orissa upheld the order of the Special Judge in August 1976. Both the trial court and the High Court found that the basic charge against Samal and Jena was simply non-existent: Samal knew that it was government land, of which he was a lessee, and he had not, as alleged by the police, concealed this fact while bargaining for a better price on the basis of sale of similar government-owned properties on lease. The courts found the allegation against Jena unsustainable, in view of the lack of evidence against him.

In its judgment, delivered by Justice Fazal Ali, the Supreme Court Bench was expected to pronounce on the scope and ambit of an order of discharge to be passed by a Special Judge under Section 227 of the CrPC. Obviously, the Rae Bareli court has discharged Advani under this very section. Section 227 of the CrPC says: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Justice Ali said in his order: "The words `not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities, which is really its function after the trial starts.

At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." In the case of Advani, however, the Rae Bareli court appears to have found "suspicious circumstances" to discharge him from the case.

The Ali-Desai Bench then referred to an earlier ruling by the Supreme Court in State of Bihar vs. Ramesh Singh (1977) in which the court had said that whereas strong suspicion may not take the place of the proof at the trial stage, it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the accused. The Ali-Desai Bench then went on to explain its order:

"The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." The Supreme Court Bench concluded that the courts below were legally justified in discharging the respondents.

The Rae Bareli court, which has relied on this judgment, probably found that the evidence against Advani produced by the CBI did not give rise to a "grave" suspicion against him to warrant the framing of charges. The conclusion whether a suspicion is grave or not obviously has to be reached objectively, considering the facts and circumstances of each case, and as the Ali-Desai Bench has pointed out, there cannot be a rule of universal application. More significant, the Bench wanted this discretion - whether or not charges should be framed in a particular case - to be exercised by a senior or more experienced court so as to exclude any abuse of power. If the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or the Supreme Court, the Bench ruled.

Whether or not the CBI appeals against the September 19 order of the Rae Bareli court, the relevance of the 1978 judgment of the Ali-Desai Bench of the Supreme Court in discharging Advani from the case will be debated intensely in the coming weeks.