Date of the Judgment: 19 April 2017
Citation: 2017 INSC 398
Judges: Pinaki Chandra Ghose, J., R.F. Nariman, J.
Can a fractured prosecution derail the course of justice? The Supreme Court of India addressed this question in the Babri Masjid demolition case, ordering a joint trial of all accused individuals. The core issue was whether the High Court was right in upholding the discharge of 21 accused persons and allowing separate trials. The Supreme Court overturned the High Court’s decision, emphasizing the need for a unified trial to address the criminal conspiracy charges effectively. The judgment was authored by R.F. Nariman, J.
Case Background
The case stems from the demolition of the Babri Masjid on 6th December 1992. Two initial First Information Reports (FIRs) were lodged. FIR No. 197/1992 was filed against lakhs of kar sewaks for offenses including dacoity, robbery, and promoting religious enmity under Sections 153-A, 295, 297, 332, 337, 338, 395 and 397 of the Indian Penal Code (IPC). FIR No. 198/1992 was against eight individuals, including L.K. Advani and Ashok Singhal, for offenses under Sections 153-A, 153-B, and 505 of the IPC. Subsequently, 46 more FIRs related to cognizable offenses and 1 FIR for non-cognizable offenses were also registered.
Initially, a Special Court at Lalitpur was designated to try these cases. However, the cases were later transferred to a Special Court in Lucknow on 8th September 1993. All cases were committed to a Sessions Court in Lucknow, except FIR No. 198/1992. The Special Magistrate added Section 120-B of the IPC (criminal conspiracy) to FIR No. 197/1992 on 13th April 1993.
On 5th October 1993, the Central Bureau of Investigation (CBI) filed a consolidated chargesheet against 48 individuals, including Bala Saheb Thackeray and Kalyan Singh, for offenses under Section 120-B read with Sections 153-A, 153-B, 295, 295-A, and 505 of the IPC. The chargesheet alleged a criminal conspiracy involving various leaders and activists.
An amendment to the notification on 8th October 1993, intended to include FIR No. 198/1992 in the Special Court at Lucknow, was later deemed invalid by the High Court due to a lack of consultation with the High Court as required under Section 11(1) of the Criminal Procedure Code, 1973.
In 1996, the CBI filed a supplementary chargesheet against the eight individuals named in FIR No. 198/1992 at Lucknow. On 9th September 1997, the Special Judge, Lucknow, found a prima facie case against all accused persons for criminal conspiracy under Section 120-B of the IPC, read with other sections, and ordered a joint trial.
Timeline:
| Date | Event |
|---|---|
| 6th December 1992 | Demolition of Babri Masjid; FIR No. 197/1992 and 198/1992 lodged. |
| 8th September 1993 | Cases transferred to Special Court at Lucknow. |
| 13th April 1993 | Section 120-B IPC added to FIR No. 197/1992. |
| 5th October 1993 | CBI files consolidated chargesheet against 48 persons. |
| 8th October 1993 | State Government amends notification to include FIR No. 198/1992 in Special Court at Lucknow. |
| 1996 | CBI files supplementary chargesheet against 8 persons in FIR No. 198/1992 at Lucknow. |
| 9th September 1997 | Special Judge, Lucknow finds prima facie case for criminal conspiracy and orders joint trial. |
| 12th February 2001 | Allahabad High Court invalidates the notification of 8th October 1993, but upholds the joint chargesheet. |
| 4th May 2001 | Special Court drops proceedings against 21 persons. |
| 22nd May 2010 | High Court upholds the order of 4th May 2001. |
| 19th April 2017 | Supreme Court orders joint trial and overturns discharge of 21 accused persons. |
Course of Proceedings
Criminal Revision Petitions were filed against the order dated 9th September 1997. The High Court of Allahabad, Lucknow Bench, in its judgment dated 12th February 2001, held that the notification dated 8th October 1993 was invalid due to a lack of consultation with the High Court, a curable legal infirmity. Consequently, the Special Court at Lucknow lacked jurisdiction to inquire into FIR No. 198/1992 against the eight accused for the three offenses stated therein. The High Court upheld the joint chargesheet and the cognizance of the offenses committed in the same transaction, except for the three IPC offenses against the eight accused.
The CBI accepted the judgment and requested the State Government to rectify the defect in the notification, which was rejected on 28th September 2002. This rejection was not challenged by the CBI. An SLP filed against the order dated 12th February 2001 was dismissed by the Supreme Court on 29th November 2002, and a review petition was also dismissed on 22nd March 2007.
The CBI then filed a supplementary chargesheet against the 8 accused persons for offenses under Sections 153A, 153B, 505 read with Sections 147 and 149 of the IPC before the Judicial Magistrate at Rae Bareilly. Charges were framed under these sections. However, the CBI did not proceed against the other 13 persons.
On 4th May 2001, the Special Court dropped proceedings against 21 persons, including the 8 accused in FIR No. 198/1992 and 13 others, distinguishing between the kar sewaks who demolished the Masjid and the instigators. A revision against this order was filed before the High Court, which was dismissed on 22nd May 2010, upholding the view that there were two classes of accused with different roles and offenses.
Legal Framework
The judgment refers to several sections of the Indian Penal Code, 1860 (IPC):
- Section 120-B: Deals with criminal conspiracy, where two or more persons agree to commit an illegal act.
- Section 147: Defines the offense of rioting.
- Section 149: Addresses the liability of members of an unlawful assembly for offenses committed in furtherance of their common object.
- Section 153-A: Addresses promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
- Section 153-B: Deals with imputations and assertions prejudicial to national integration.
- Section 295: Addresses injuring or defiling a place of worship with intent to insult the religion of any class.
- Section 295-A: Deals with deliberate and malicious acts intended to outrage religious feelings of any class.
- Section 332: Deals with voluntarily causing hurt to deter public servant from his duty.
- Section 337: Deals with causing hurt by act endangering life or personal safety of others.
- Section 338: Deals with causing grievous hurt by act endangering life or personal safety of others.
- Section 395: Defines the offense of dacoity.
- Section 397: Deals with robbery or dacoity with attempt to cause death or grievous hurt.
- Section 505: Addresses statements conducing to public mischief.
The judgment also discusses Section 11(1) of the Criminal Procedure Code, 1973 (CrPC), which allows the State Government to establish Special Courts after consultation with the High Court. Additionally, Section 216 of the CrPC, which allows for the alteration or addition of charges, and Section 217(a), which allows for the recall of witnesses, are also cited.
Arguments
Arguments by the CBI:
- The CBI argued that the High Court misinterpreted the judgment dated 12th February 2001, which had upheld the joint chargesheet filed by the CBI.
- It contended that the High Court erroneously distinguished between different kinds of offenses and offenders, while the 2001 judgment had expressly upheld the filing of a joint chargesheet.
- The CBI submitted that the offense of conspiracy was already part of the charges in FIR No. 197/1992, and therefore, Section 120B was not added in the supplementary chargesheet filed at Rae Bareilly.
- The CBI argued that the High Court’s view that the CBI could add the charge of Section 120B at Rae Bareilly was incorrect, as it would lead to two different Special Courts deciding on the same criminal conspiracy.
- The CBI stated that the supplementary chargesheet at Rae Bareilly was filed only to expedite the trial against the 8 accused, as the State Government had refused to cure the defect in the notification dated 8th October 1993.
Arguments by Respondent Nos. 4 and 5:
- The respondents argued that the judgment dated 12th February 2001, could not be reopened as the Supreme Court had dismissed appeals and review petitions against it.
- They contended that the order dated 4th May 2001, which dropped proceedings against 21 accused, was merely implementing the judgment of 12th February 2001.
- The respondents submitted that the trial against the 8 accused was proceeding at Rae Bareilly, and a joint trial at Lucknow was not possible due to the final decision of the Supreme Court.
- They argued that using Article 142 of the Constitution to transfer proceedings from Rae Bareilly to Lucknow would infringe upon the fundamental rights of the 8 accused under Article 21, as it would take away their right of appeal from the Magistrate to the Sessions Court.
- The respondents referred to Section 407(1) of the CrPC, arguing that only the High Court could transfer a case from one Special Judge to another within the same State.
- They cited several judgments stating that the powers of the Supreme Court under Article 142 cannot be used against a mandatory substantive provision of law.
Arguments by the Intervenor:
- The intervenor argued that the case pending at Rae Bareilly should be transferred to Lucknow as a joint chargesheet had been filed clubbing all 49 FIRs, including FIR No. 198/1992.
- The intervenor contended that the Supreme Court had the power under Article 142 to do complete justice.
- They argued that the trial need not begin de novo and that witnesses could be recalled for cross-examination on the added charges.
Submissions Table
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Challenge to High Court’s Interpretation | High Court misinterpreted the 2001 judgment; artificial distinction between offenses and offenders. | CBI |
| Conspiracy Charge | Conspiracy charge already in FIR No. 197/1992; Section 120B could not be added at Rae Bareilly. | CBI |
| Justification for Separate Trial | Supplementary chargesheet at Rae Bareilly to expedite trial due to State’s refusal to cure defect. | CBI |
| Finality of Previous Judgment | 2001 judgment cannot be reopened; Supreme Court dismissed appeals and review petitions. | Respondents |
| Implementation of 2001 Judgment | Order of 4th May 2001 was merely implementing the 2001 judgment. | Respondents |
| Impossibility of Joint Trial | Trial at Rae Bareilly is ongoing; no joint trial possible due to the Supreme Court’s final decision. | Respondents |
| Infringement of Fundamental Rights | Transfer would infringe Article 21 rights; right of appeal would be taken away. | Respondents |
| High Court’s Power of Transfer | Only the High Court can transfer cases between Special Judges in the same State. | Respondents |
| Power under Article 142 | Supreme Court has the power under Article 142 to do complete justice. | Intervenor |
| Need for Joint Trial | Case at Rae Bareilly should be transferred to Lucknow for a joint trial. | Intervenor |
| No Need for De Novo Trial | Trial need not begin de novo; witnesses can be recalled for cross-examination. | Intervenor |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issues addressed by the court can be summarized as follows:
- Whether the High Court was correct in upholding the discharge of 21 accused persons and allowing separate trials.
- Whether the judgment dated 12th February 2001, was correctly interpreted by the High Court.
- Whether the Supreme Court can use its power under Article 142 of the Constitution to transfer the case from Rae Bareilly to Lucknow for a joint trial.
- Whether the transfer of the case would infringe upon the fundamental rights of the accused under Article 21 of the Constitution.
- Whether the powers of the Supreme Court under Article 142 can be used to supplant the substantive law.
Treatment of the Issue by the Court
| Issue | Court’s Decision and Reasoning |
|---|---|
| Discharge of 21 Accused and Separate Trials | The Supreme Court held that the High Court was incorrect in upholding the discharge of 21 accused persons and allowing separate trials. The Court emphasized that the 2001 judgment had upheld the joint chargesheet and the prima facie case of criminal conspiracy, making the discharge of the accused erroneous. |
| Interpretation of 2001 Judgment | The Supreme Court found that the High Court had misinterpreted the 2001 judgment. The 2001 judgment had clearly upheld the joint chargesheet and the fact that all offenses were committed in the same transaction, thus the High Court’s contrary view was incorrect. |
| Transfer of Case under Article 142 | The Supreme Court held that it could use its power under Article 142 to transfer the case from Rae Bareilly to Lucknow for a joint trial. The Court emphasized that Article 142 allows it to do complete justice and that no substantive law was being violated by the transfer. |
| Infringement of Article 21 Rights | The Supreme Court held that the transfer of the case would not infringe upon the fundamental rights of the accused under Article 21. The Court clarified that the right of appeal was not absolute and that the transfer was within the procedure established by law under Section 407 of the CrPC. |
| Power under Article 142 | The Supreme Court clarified that Article 142 is supplementary in nature and cannot supplant substantive law. However, it can be used to do complete justice and mould relief, even if it means relaxing the application of law in certain cases. |
Authorities
The Supreme Court considered the following authorities:
- Kehar Singh v. State of Delhi [1988 SCC (Criminal) 711]: This case was cited by the Special Judge, Lucknow, to highlight that in a conspiracy, knowledge of the work done by another person is gradual and discernable from speeches and actions.
- Ajay Agarwal v. Union of India [1993 SCC (Criminal) 961]: This case was cited by the Special Judge, Lucknow, to support the view that all persons connected with a conspiracy are guilty for unlawful activities done in the course of the conspiracy.
- P.K. Narayan v. State of Kerala [(1995) SCC 142]: This case was cited by the Special Judge, Lucknow, to support the view that all persons connected with a conspiracy are guilty for unlawful activities done in the course of the conspiracy.
- State of Maharashtra v. Som Nath Thapar [1996 Cr.L.J. 2448]: This case was cited by the Special Judge, Lucknow, to support the view that all persons connected with a conspiracy are guilty for unlawful activities done in the course of the conspiracy.
- A.R. Antulay v. R.S. Nayak & Another [(1988) 2 SCC 602]: This case was cited by the respondents to argue that the transfer of the case would infringe upon the fundamental rights of the accused under Article 21. The Supreme Court distinguished this case, stating that it was based on a non-obstante clause in Section 7(1) of the Criminal Law Amendment Act, 1952, which is absent in the current case.
- Supreme Court Bar Association v. Union of India & Another [1998 (4) SCC 409]: This case was cited to argue that Article 142 cannot authorize the Court to ignore the substantive rights of a litigant. The Supreme Court clarified that Article 142 is supplementary and can be used to mould relief, but not to supplant substantive law.
- State of Punjab v. Rafiq Masih [(2014) 8 SCC 883]: This case was cited to clarify the nature of Article 142, stating that it is supplementary and can give preference to equity over law, but cannot disregard mandatory substantive provisions of law.
- Section 11(1) proviso of the Criminal Procedure Code, 1973: This provision allows the State Government to establish Special Courts after consultation with the High Court.
- Section 216 of the Criminal Procedure Code, 1973: This provision allows for the alteration or addition of charges.
- Section 217(a) of the Criminal Procedure Code, 1973: This provision allows for the recall of witnesses.
- Section 406 of the Criminal Procedure Code, 1973: This provision deals with the power of the Supreme Court to transfer cases and appeals. The Supreme Court clarified that this provision does not apply to the facts of the present case.
- Section 407 of the Criminal Procedure Code, 1973: This provision deals with the power of the High Court to transfer cases and appeals. The Supreme Court clarified that the existence of this power in the High Court does not prevent the Supreme Court from using its power under Article 142.
- Article 142 of the Constitution of India: This article empowers the Supreme Court to pass orders necessary for doing complete justice.
- Article 21 of the Constitution of India: This article guarantees the right to life and personal liberty.
- Article 361 of the Constitution of India: This article provides immunity to the Governor of a State.
Authority Table
| Authority | Court | How Used |
|---|---|---|
| Kehar Singh v. State of Delhi [1988 SCC (Criminal) 711] | Supreme Court of India | Cited by Special Judge, Lucknow, to explain the nature of conspiracy. |
| Ajay Agarwal v. Union of India [1993 SCC (Criminal) 961] | Supreme Court of India | Cited by Special Judge, Lucknow, to explain the liability of conspirators. |
| P.K. Narayan v. State of Kerala [(1995) SCC 142] | Supreme Court of India | Cited by Special Judge, Lucknow, to explain the liability of conspirators. |
| State of Maharashtra v. Som Nath Thapar [1996 Cr.L.J. 2448] | Supreme Court of India | Cited by Special Judge, Lucknow, to explain the liability of conspirators. |
| A.R. Antulay v. R.S. Nayak & Another [(1988) 2 SCC 602] | Supreme Court of India | Distinguished; not applicable due to absence of non-obstante clause. |
| Supreme Court Bar Association v. Union of India & Another [1998 (4) SCC 409] | Supreme Court of India | Clarified the scope of Article 142; cannot supplant substantive law. |
| State of Punjab v. Rafiq Masih [(2014) 8 SCC 883] | Supreme Court of India | Clarified the nature of Article 142; supplementary and can give preference to equity over law. |
| Section 11(1) proviso of the Criminal Procedure Code, 1973 | Indian Parliament | Explained the procedure for establishing Special Courts. |
| Section 216 of the Criminal Procedure Code, 1973 | Indian Parliament | Cited to explain the power to alter or add charges. |
| Section 217(a) of the Criminal Procedure Code, 1973 | Indian Parliament | Cited to explain the power to recall witnesses. |
| Section 406 of the Criminal Procedure Code, 1973 | Indian Parliament | Clarified that it does not apply to the facts of the present case. |
| Section 407 of the Criminal Procedure Code, 1973 | Indian Parliament | Explained the power of the High Court to transfer cases. |
| Article 142 of the Constitution of India | Indian Parliament | Explained the power of the Supreme Court to do complete justice. |
| Article 21 of the Constitution of India | Indian Parliament | Explained the right to life and personal liberty. |
| Article 361 of the Constitution of India | Indian Parliament | Explained the immunity to the Governor of a State. |
Judgment
The Supreme Court allowed the appeal of the CBI and set aside the impugned judgment of the High Court. The Court directed a joint trial of all the accused persons.
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| CBI’s argument that the High Court misinterpreted the 2001 judgment | The Court agreed with the CBI, holding that the High Court had misinterpreted the 2001 judgment which had upheld the joint chargesheet. |
| CBI’s argument that the offense of conspiracy was already part of the charges in FIR No. 197/1992 | The Court agreed with the CBI, stating that the charge of criminal conspiracy was already in the joint chargesheet and thus the accused could not have been discharged. |
| CBI’s argument that the High Court was incorrect in holding that the CBI could add the charge of Section 120B at Rae Bareilly | The Court agreed with the CBI, stating that it would lead to two different Special Courts deciding on the same criminal conspiracy. |
| Respondents’ argument that the 2001 judgment cannot be reopened | The Court disagreed, stating that the current proceedings were not reopening the 2001 judgment, but were addressing the errors made by the High Court in interpreting it. |
| Respondents’ argument that the transfer of the case would infringe upon the fundamental rights of the accused under Article 21 | The Court disagreed, stating that the transfer was within the procedure established by law under Section 407 of the CrPC. |
| Respondents’ argument that only the High Court could transfer the case | The Court disagreed, stating that its power under Article 142 allows it to transfer the case to do complete justice and that Section 406 does not apply to the present case. |
| Intervenor’s argument that the case pending at Rae Bareilly should be transferred to Lucknow | The Court agreed, holding that the case should be transferred to Lucknow for a joint trial. |
| Intervenor’s argument that the trial need not begin de novo | The Court agreed, stating that the charges could be added under Section 216 of the CrPC and that witnesses could be recalled for cross-examination. |
How each authority was viewed by the Court?
| Authority | Court’s View |
|---|---|
| Kehar Singh v. State of Delhi [1988 SCC (Criminal) 711] | The Court acknowledged the Special Judge’s reliance on this case to explain the nature of conspiracy. |
| Ajay Agarwal v. Union of India [1993 SCC (Criminal) 961] | The Court acknowledged the Special Judge’s reliance on this case to explain the liability of conspirators. |
| P.K. Narayan v. State of Kerala [(1995) SCC 142] | The Court acknowledged the Special Judge’s reliance on this case to explain the liability of conspirators. |
| State of Maharashtra v. Som Nath Thapar [1996 Cr.L.J. 2448] | The Court acknowledged the Special Judge’s reliance on this case to explain the liability of conspirators. |
| A.R. Antulay v. R.S. Nayak & Another [(1988) 2 SCC 602] | The Court distinguished this case, stating that it was not applicable due to the absence of a non-obstante clause in the present case. |
| Supreme Court Bar Association v. Union of India & Another [1998 (4) SCC 409] | The Court clarified that Article 142 cannot be used to ignore substantive rights, but can be used to mould relief. |
| State of Punjab v. Rafiq Masih [(2014) 8 SCC 883] | The Court clarified that Article 142 is supplementary and can give preference to equity over law, but cannot disregard mandatory substantive provisions of law. |
| Section 11(1) proviso of the Criminal Procedure Code, 1973 | The Court acknowledged this provision but noted that the defect inthe notification was never cured. |
| Section 216 of the Criminal Procedure Code, 1973 | The Court relied on this provision to justify the addition of charges in the joint trial. |
| Section 217(a) of the Criminal Procedure Code, 1973 | The Court relied on this provision to allow for the recall of witnesses for cross-examination. |
| Section 406 of the Criminal Procedure Code, 1973 | The Court clarified that this provision does not apply to the present case. |
| Section 407 of the Criminal Procedure Code, 1973 | The Court clarified that the existence of this power in the High Court does not prevent the Supreme Court from using its power under Article 142. |
| Article 142 of the Constitution of India | The Court relied on this article to transfer the case from Rae Bareilly to Lucknow for a joint trial, emphasizing its power to do complete justice. |
| Article 21 of the Constitution of India | The Court clarified that the transfer of the case would not infringe upon the fundamental rights of the accused under Article 21. |
| Article 361 of the Constitution of India | The Court noted this article but it was not directly relevant to the judgment. |
The Court held that the High Court had erred in upholding the discharge of the 21 accused and in allowing separate trials. The Court found that the 2001 judgment had upheld the joint chargesheet and the prima facie case of criminal conspiracy, making the discharge of the accused erroneous. The Court also clarified that its power under Article 142 allows it to transfer the case to do complete justice, and that this power is supplementary and can be used to mould relief.
Flowchart of the Case
Demolition of Babri Masjid (6th Dec 1992)
FIRs Lodged (197/1992 & 198/1992)
Cases Transferred to Special Court, Lucknow (8th Sep 1993)
CBI Files Consolidated Chargesheet (5th Oct 1993)
Supplementary Chargesheet Filed (1996)
Special Judge Orders Joint Trial (9th Sep 1997)
High Court Invalidates Notification (12th Feb 2001)
Special Court Drops Proceedings Against 21 (4th May 2001)
High Court Upholds Dropping of Proceedings (22nd May 2010)
Supreme Court Orders Joint Trial (19th Apr 2017)
Conclusion
The Supreme Court’s judgment in the Babri Masjid demolition case is a significant step towards ensuring a comprehensive and expeditious resolution of a long-standing legal battle. By ordering a joint trial and overturning the discharge of 21 accused persons, the Court emphasized the importance of addressing the criminal conspiracy charges effectively. The judgment clarified the scope of Article 142 of the Constitution, affirming that it can be used to do complete justice while respecting the substantive law. The case highlights the complexities of legal proceedings involving multiple parties and charges, and the critical role of the Supreme Court in ensuring justice is served.