SC orders joint trail of LK Advani & ors with Kar Sevaks
After the Babri Masjid demolition happened, two FIRS were filed. One was the FIR No. 197 which was filed against the Kar Sevaks who was actively engaged in the demolition of the building. The second FIR was the FIR No. 198 which was filed against LK Advani, Uma Bharati and the other leaders who were giving instigating speeches a few meters away from the Masjid. On 9th September, 1993, the State Government issued a notification to transfer the case under FIR No. 197 to a Special Court at Lucknow. On 8th October, 1993, the State Government amended the notification to include FIR No. 198 also for trial.
This amendment was struck down by the High Court as the Government did not consult the court before taking such a decision. Hence, although curable in nature, it was struck down for conflicting with the provisions of Section 11(1) of the CRPC. The Government did not cure the error it made and the CBI did not contest the same. In fact, CBI filed another supplementary chargesheet to Judicial Magistrate at Rae Bareilly against the eight persons. Meanwhile, the CBI had added the Advani and the seven other persons to FIR No. 198 under the charge of criminal conspiracy under Section 120-B. The Special Court dropped the charges and stated that the Kar Sevaks’ crime is different from that of the others. Kar Sevaks were actively involved in the crime and hence, their persecution must be separate from that of its instigators. Hence, it suggested to add the charge of conspiracy with the pending case before the Magistrate of Rae Bareilly.
The case under the Magistrate of Rae Bareilly had, since then, suffered inordinate delay. Also, their were demands from various quarters to conduct a joint trial of both these cases under the Special Judge of Lucknow as, in the end, the evidence and the substance of both the crimes were the same.
Can the power under Article 142 be used to transfer the cases from a Magistrate at Rae bareilly to the Court of Sessions under the jurisdiction of the same High Court?
The argument of the Respondents was that such a transfer would take away their right to appeal from the Magistrate Court to Court of Sessions. This would infringe Article 21 of the Respondents. But, the court held that under Sections 406 and 407, by the procedure established by law, a case maybe transferred from the Magistrate to Sessions Court and from Sessions Court to High Court even. The Article 21 is not presumed to have violated then. Similarly, the Supreme Court of India has been given exemplary powers under Artilce 142 to do complete justice in a case. It implies that the court can exempt the application of rigid law – espectially, directory provisions and technical procedures – to achieve justice in a case. There is no bar under Article 142 to the power of the Supreme Court from transferring the case between the Magistrate Court to Sessions Court. In fact, if the State Government had issued the notification correcting the error and ordered for a join trial in 2001, the same result would have achieved. It is the lapse on the part of the Government andd the CBI that the Supreme Court by the power vested by Article 142 is aiming to correct.
Also, the court held that the power of Supreme Court under Section 406 of CRPC to transfer cases between the courts coming under the jurisdiction of different High Courts is not applicable here. The courts of Rae Bareilly and Lucknow comes under the jurisdiction of the same High Court. Also, the existence of the power for the High Court to transfer the cases under Section 407 of CRPC is not a bar to exceptional power of the Supreme Court in Article 142.
Thus, the Supreme Court issued the orders under Article 142 to conduct a joint trial of LK Advani and the seven others along with the Kar Sevaks’ case pending before the Court of Sessions. The court also ordered that the trial must be concluded in an expeditious manner within two years of the receipt of this judgment.