SC or­ders joint trail of LK Ad­vani & ors with Kar Se­vaks

Libertatem Magazine - - Contents - by Jane Maria

Facts

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.

Is­sues

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?

Judg­ment

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.

Learn­ing out­come

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.

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