REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 751 of 2017 (@Special Leave Petition (Criminal) No.2275 of 2011)

State (through) Central Bureau of Investigation    …Appellant

Versus

Shri Kalyan Singh (former CM of UP) & Ors. …Respondents

J U D G M E N T R.F. NARIMAN, J.

Leave granted.

1. The present  appeal  arises  out  of  the  demolition  of  Babri

Masjid.  We are concerned in this case with two FIRs lodged on

6th December,  1992.   The  first  viz. Crime  No.197  of  1992,  is

against  lakhs  of  kar  sewaks  alleging  the  offences  of  dacoity,

robbery, causing of hurt, injuring/defiling places of public worship,

promoting enmity between two groups on grounds of religion, etc.

The IPC offences were,  therefore,  under  Sections 153-A,  295,

297,  332,  337,  338,  395  and  397.   The  second  FIR  viz. FIR

No.198 of 1992 was lodged against eight persons named therein -

Mr. L.K.  Advani,  Mr. Ashok Singhal,  Mr. Vinay Katiar, Ms. Uma

Bharati,  Ms.  Sadhvi  Ritambara,  Mr.  Murli  Manohar  Joshi,  Mr.

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Giriraj Kishore and Mr. Vishnu Hari Dalmia, two of whom are dead

due to  passage of  time  viz. Mr. Ashok  Singhal  and Mr. Giriraj

Kishore. The FIR alleges offences under Sections 153-A, 153-B

and Section 505 IPC.  46 further FIRs pertaining to cognizable

offences and 1 FIR pertaining to non-cognizable offences were

also lodged.  Initially, a Special Court set up at Lalitpur was to try

these  cases  but  subsequently  notifications  were issued by  the

State Government, after consultation with the High Court, dated

8th September, 1993 whereby these cases were to be tried by a

Special Court at Lucknow.  All these cases were committed to a

Court  of  Sessions,  Lucknow in which FIR No.197, but  not  FIR

No.198, was to be tried.  It may be noted that prior to the transfer

of FIR No.197 of 1992 to Lucknow, by an Order dated 13 th April,

1993, the Special Magistrate added Section 120-B IPC to the said

FIR No.197 of 1992.

2. On  5th October,  1993,  the  CBI  filed  a  consolidated

chargesheet against 48 persons in all including the names of Mr.

Bala Saheb Thackeray, Mr. Kalyan Singh, Mr. Moreshwar Save,

Mr.  Champat  Rai  Bansal,  Mr.  Satish  Pradhan,  Mr.  Mahant

Avaidyanath, Mr. Dharam Das, Mr. Mahant Nritya Gopal Das, Mr.

Mahamadleshwar  Jagdish  Muni,  Mr.  Ram  Bilas  Vadanti,  Mr.

Vaikunth Lal  Sharma @ Prem, Mr. Prama Hans Ram Chandra

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Das, and Dr. Satish Chandra Nagar.  It may be stated that owing

to the passage of time, four of these are since deceased namely

Mr.  Bala  Saheb  Thackeray,  Mr.  Moreshwar  Save,  Mr.  Mahant

Avaidyanath and Mr. Prama Hans Ram Chandra Das.  So far as

the charge of conspiracy is concerned, the chargesheet records:  

The  aforesaid  acts  of  Shri  Bala  Saheb  Thackeray, Chief  of  Shiv  Sena,  Bombay, Shri  L.K.  Advani,  MP, BJP,  presently  BJP  President,  Shri  Kalyan  Singh, ex-Chief  Minister  of  Uttar  Pradesh,  Shri  Ashok Singhal, General Secretary, VHP, Shri Vinay Katiyar, MP  Bajrang  Dal,  Shri  Moreshwar  Save,  MP,  Shiv Sena,  Shri  Pawan  Kumar  Pandey,  Ex-MLA,  Shiv Sena, Shri Brij Bhushan Saran Singh, MP, BJP, Shri Jai Bhagwan Goel, North India Chief, Shiv Sena, Ms. Uma  Bharati  @  Gajra  Singh,  MP,  BJP,  Sadhvi Rithambara, VHP leader, Maharaj Swamy Sakshi, MP, BJP, Shri Satish Pradhan, MP, Shiv Sena, Shiv Sena, Shri  Murli  Manohar  Joshi,  Ex-President,  BJP,  Shri Giriraj  Kishore,  Joint  General  Secretary,  VBP, Shri Vishnu Hari Dalmia, President, Ram Chandra Khatri, Vice  President,  Haryana,  Shri  Sudhir   Kakkar, Organising  Secretary,  Shiv  Sena,  Punjab,  Shri Amarnath  Goel,  Shiv  Sena  activist,  Shri  Santosh Dubey, Leader of Shiv Sena, Ayodhya, Shri Prakash Sharma,  Joint  Secretary, Bajrang  Dal,  Shri  Jaibhan Singh Paweya,  All  India  General  Secretary, Bajrang Dal,  Gwalior,  Shri  Ram Narayan  Dass,  ex-Pujari  of Ram Janam Bhoomi,  Shri  Ramji  Gupta,  Supervisor Ram Janam Bhoomi Nyas, Shri Lallu Singh, ex-MLA, BJP,  Shri  Champat  Rai,  Joint  Zonal  Organising Secretary,  VHP,  Shri  Om  Prakash  Pandey,  Hindu activist,  Shri  Lakshmi  Narayan  Das,  Mahatyagi, Activist,  BJP, Shri  Vinay  Kumar  Rai,  Hindu  activist, Shri  Kamlesh  Tripathi  @ Sait  Dubey, Bajrang  Das, activist,  Shri  Gandhi  Yadav,  BJP  activist,  Shri Hargovind Singh, Hindu activist, Shri  Vijay Bahadur Singh,  Chief  Security  Officer,  Shri  Krishan  Temple, Mathura, UP, Shri Navin Bahi Shukla, Hindu activist,

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Shri Ramesh Pratap Singh, BJP activist, and Acharya Dharmender  Dev,  Leader,  Bajrang  Dal  constitutes offences U/s 120-B IPC r/w 153-A, 153-B, 295, 295-A and  505  IPC  and  substantive  offences  U/s  153-A, 153-B, 295, 295-A and 505 IPC.  

3. On 8th October, 1993, the State Government amended the

notification  dated  9th September, 1993 inserting  FIR No.198 of

1992 against  the eight  persons  aforesaid  so that  all  49  cases

could be tried by the Special Court, Lucknow.  To cut a long story

short,  since  this  amendment  notification  did  not  comply  with

Section 11(1) proviso of the Criminal Procedure Code, 1973 viz.

that consultation with the High Court was lacking, this notification

was ultimately struck down.  

4. At  this  point,  it  is  important  to  note  that  the  CBI  filed  a

supplementary  chargesheet  against  the  8  persons  mentioned

hereinabove in  the year  1996 at  Lucknow.  On 9th September,

1997,  the Special  Judge,  Lucknow passed an order  that  there

was  a  prima  facie  case  against  all  the  accused  persons  for

framing charges of criminal conspiracy under Section 120-B read

with various other Sections of the Penal Code.  The Court held

that all the offences were committed in the course of the same

transaction which warranted a joint trial  and that the case was

exclusively triable by the Court of the Special Judge, Lucknow.  It

is worth setting out parts of this order which read as follows:

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“There seems to be a prima facie case for offences u/s 147/153-A/153-B/295/295-A/505 read with u/s 149 IPC against  accused Sri  Lal  Krishna,  Ashok  Singh, Vinay  Katiyar,  Moreshwar  Save,  Pawan  Kumar Pandey,  Ms.  Sadhvi  Ritambhra,  Maharaj  Swami Sakshi,  Murli  Manohar  Joshi,  Giri  Raj  Kishore  and Vishnu Hari Dalmia.  Against accused Pawan Kuamr Pandey,  Brij  Bhushan,  Saran  Singh,  Pawaiya, Dharmendra  Singh  Gurjar,  Ram Narain  Das,  Lalloo Singh, Om Prakash Pandey, Laxmi Narain Das, Maha Tyagi,  Vinay  Kumar  Rai,  Kamlesh  Tripathi,  Gandhi Yadav, Har Govind Singh, Vijay Bahadur Singh, Navin Bhai  Shukla,  offences  u/s  332/338/2-01  read  with Sec.149 of IPC seem to be made out.  Offences under Sec.120-B  of  IPC  read  with  u/s 153-A/153-B/295/295-A/505  of  IPC as  per  evidence produced by the prosecution seem to  be made out prima  facie  against  Sri  Bala  Saheb  Thackeray,  Lal Krishna Advani,  Kalyan Singh, Ashok Singhal,  Vinay Katiyar, Moreshwar Save, Pawan Kumar Pandey, Brij Bhushan  Saran  Singh,  Jai  Bhagwan  Goal,  Maharaj Swami Sakshi, Satish Pradhan, Murli Manohar Joshi, Acharya  Giriraj  Kishore,  Vishnu  Hari  Dalmia,  Vinod Kumar  Vats,   Ram  Chandra  Khattri,  Sudhir  Singh Pawauya, Dharmedra Singh Gurjar, Ram Narain Das, Ramji Gupta, Lalloo Singh, Champat Rai Bansal, Om Prakash  Pandey,  Laxmi  Narain  Maha  Tyagi,  Vinay Kumar  Rai,  Kamlesh  Tripathi,  Gandhi  Yadav,  Har Govind  Singh,  Vijay  Bahadur  Singh,  Navin  Bhai Shukla, Ramesh Pratap Singh, Acharya Dharmendra Dev, Ms. Uma Bharti, Ms. Sadhvi Ritambhra.”

So far as question of conspiracy u/s 120-B of IPC is concerned in  that  connection  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  discernable from what becomes clear by their speeches and by actions done by them.  In regard to criminal conspiracy has been propounded by the Hon’ble  Supreme Court  in  case reported as Kehar Singh Vs. State of Delhi 1988 SCC (Criminal)  711 where  under  whatever  works  are  of

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conspiracy is entrusted to a person he does not and a person does not have the knowledge of the work done by another person till that work is not completed.  In such a conspiracy all the persons who are connected with it they are held guilty for activities unlawfully done in the cause of  the conspiracy because all  of  them have taken a decision to act in that way as has been propounded by ruling in the following cases.

(1)  Ajay  Agarwal  Vs.  Union  of  India  –  1993  SCC   (Criminal) Page 961 (2) P.K. Narayan Vs. State of Kerala – (1995) SCC 142 (3) State of Maharashtra Vs. Som Nath Thapar – 1996  Cr.l.J.2448

According  to  the  decisions  of  the  Hon’ble  Supreme Court as above, though Sri Kalyan Singh at the time of occurrence or accused R.N. Srivastava and Sri D.B. Rai were not present even then they are found prima facie guilty u/s 120-B of IPC because they are public servants  their  act  shall  be  deemed  prima  facie criminal.   Sri  Kalyan  Singh  had  given  assurance before  the  National  Integration  Council  for  not demolishing  the  disputed  structure  and  the  Hon’ble Supreme Court  had permitted for  only  symbolic  kar sewa being  performed.   Sri  Kalyan  Singh  had also said  that  he will  fully  ensure the protection of  Ram Janam Bhumi/Babri Masjid structure and it will not be felled  down,  but  he  acted  in  opposition  to  his assurances.  Order was not given by Sri Kalyan Singh for utilizing the Central Force.  From this it seems that prima facie was a necessary participant in the criminal conspiracy.   

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In  the  above cases  the  Hon’ble  Justice  has  clearly propounded  that  if  in  one  course  of  occurrence different offences are committed by different accused then their examination can be done conjointly.  In the present case keeping in mind the criminal conspiracy which  was  in  regard  in  the  felling  of  Ram  Janam Bhumi/Babri  Masjid  structure  and  in  that  context

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whatever  acts  have been done shall  be deemed to have been in the course of one occurrence.  Section 395, IPC was also about the criminal conspiracy for felling  down  of  Babri  Masjid.   It  was  done  under Sec.395 IPC which is in the course of one event and in that connection there is evidence of PW-37 Sanjay Khare,  PW-112  Mohan  Sahai,  PW-16  Om  Mehta, PW-42 Pravin  Jain  and the news item published in newspaper  by  the  journalists  like  the  statement  of PW-38 Shard  Chandra Pradhan, that when upto1.30 pm the kar sewaks could not demolish the dome from above,  they were demolishing the walls  from below and  Vinay  Katiyar  and  Lal  Krishna  Advani,  Murli Manohar Joshi and Ashok Singhal made exhortations many a time that all persons should get down from the dome as it was on the point of falling down.  It is the statement of PW-145 Ms. Latika Gupta that Sri Advani had made this declaration that the C.RP.F. could come any time and hence all should go and block the road to prevent it from coming.  Smt. Vijai Raje Scindia also asked the kar sewaks to come down when the dome was  being  felled  and  on  the  stage  there  was distribution of sweets.

From the above discussion this conclusion is drawn that  in  the  present  case  the  criminal  conspiracy  of felling down of the disputed structure of Ram Janam Bhumi/Babri Masjid was commenced by the accused from 1990 and it was completed on 06.12.1992 Sri Lal Krishan Advani  and others at  different  times and at different places made schemes of criminal conspiracy of demolishing the above disputed structure.  Hence I find prima facie basis on the strength of evidence to charge  accused  S/Sri  Bala  Saheb  Thackeray,  Lal Krishna Advani,  Kalyan Singh, Ashok Singhal,  Vinay Katiyar, Moreshwar Save, Pawan Kumar Pandey, Brij Bhushan Saran Singh, Jai  Bhagwan Goe, Ms. Uma Bharti, Ms. Sadhwi Ritambhra, Maharaj Sami Sakshi, Murli  Manohar  Joshi,  Giri  Raj  Kishore  Vishnu  Hari Dalmia,  Champat  Rai  Bansal,  Om Prakash Pandey, Satish  Pradhan  Mahant  Avaidh  Nath,  Dharam Das, Mahant  Nritya  Gopal  Das,  Maha  Mandaleshwar Jagdish  Muni,  Dr.  Ram Vilas  Vedanti,  Baikunth  Lal

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Sharma  @  Prem  Param  Hans  Ram  Chandra  Das, Smt. Vijay Raje Scindia, and Dr. Satish Kumar Nagar for  offences  u/s  147/153-A/153-B/295-A/505  of  IPC read with Sec. 120-B of IPC.”

5. Criminal  Revision  Petitions  were  filed  against  the  order

dated 9th September, 1997. By a Judgment dated 12 th February,

2001, delivered by the High Court of Allahabad, Lucknow Bench,

it was held:

(1) Notification  dated  8th October,  1993  amending  the

notification dated 9th September, 1993 was invalid as there

was no consultation with the High Court before issuing the

said notification.  It  is  important  to  mention that  the Court

held that this was a curable legal infirmity.

(2) Consequently  the  Special  Court  at  Lucknow  has  no

jurisdiction  to  inquire  into  and  to  commit  to  the  Court  of

Sessions FIR No.198 of  1992 against  the aforesaid eight

accused for the three offences stated therein.

(3) The impugned order dated 9th September, 1997 for framing

charges  under  Sections  153-A,  153-B  and  505  IPC  was

without jurisdiction and liable to be set aside to this extent.

(4) No illegality was committed by the Court below while taking

cognizance of a joint chargesheet on the ground that all the

offences  were  committed  in  the  course  of  the  same

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transaction and to accomplish a criminal conspiracy.  The

evidence  for  all  the  offences  is  almost  the  same  and,

therefore,  these  cannot  be  separated  from  each  other

irrespective of the fact that 49 different FIRs were lodged.  

(5) The  offences  regarding  criminal  conspiracy  and  common

object  of an unlawful assembly are prima facie made out

and  since  these  offences  are  alleged  to  have  been

committed  in  the  course  of  the  same  transaction,  the

Special  Court  rightly  took  cognizance  of  the  same  and

committed the same to the Court of Session.

(6) In  all  other  respects,  the  impugned  order  dated  9 th

September, 1997 for the framing of charges, so far as 48

out of 49 cases are concerned, for the offences of criminal

conspiracy read with other IPC offences,  save and except

the three IPC offences against the eight accused persons

aforesaid, was upheld.

6. The CBI accepted the aforesaid Judgment and requested

the Chief Secretary, Government of UP to rectify the defect in the

notification dated 8th October, 1993 on 16th June, 2001.  The State

Government rejected the said request for curing the defect on 28 th

September, 2002.  This rejection was not challenged by the C.B.I.

7. Meanwhile  an  SLP  was  filed  by  one  Mohd.  Aslam  alias

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Bhure, a public interest petitioner, challenging the order dated 12 th

February,  2001.   This  was  dismissed  by  this  Court  on  29 th

November, 2002.  A review against this order was dismissed by a

speaking Order dated 22nd March, 2007.  A curative petition was

also dismissed thereafter on 12th February, 2008.

8. From this it can be seen that the order dated 12 th February,

2001 is final and can be regarded as res judicata. Given that the

State Government rejected the request for curing the defect in the

notification  dated  8th October,  1993,  the  CBI,  instead  of

challenging  the  rejection,  filed  a  supplementary  charge  sheet

against the 8 accused persons for offences under Sections 153A,

153B, 505 read with Sections 147 and 149 IPC before the Judicial

Magistrate at  Rae Bareilly.  Charges were framed under  these

Sections against the said accused persons.  Insofar as the other

group of 13 persons is involved, again, for reasons best known to

the CBI, the CBI did not proceed against them at all.  

9. By an order dated 4th May, 2001, the Special Court dropped

proceedings against 21 persons; namely, eight accused persons

being Mr. L.K. Advani, Mr. Ashok Singhal (deceased), Mr. Vinay

Katiar,  Ms.  Uma  Bharati,  Ms.  Sadhvi  Ritambara,  Mr.  Murli

Manohar Joshi,  Mr. Giriraj  Kishore (deceased), Mr. Vishnu Hari

Dalmia,  and  13  accused  persons  being  Mr.  Bala  Saheb

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Thackeray (deceased),  Mr. Kalyan Singh,  Mr. Moreshwar Save

(deceased),  Mr. Champat  Rai  Bansal,  Mr. Satish  Pradhan,  Mr.

Mahant Avaidhyanath (deceased), Mr. Dharam Das, Mr. Mahant

Nritya Gopal Das, Mr. Mahamadleshwar Jagdish Muni, Mr. Ram

Bilas Vadanti, Mr. Vakunth Lal Sharma @ Prem, Mr. Prama Hans

Ram Chandra Das (deceased)  and Dr. Satish  Chandra Nagar,

taking the view that there were two sets of accused  - one, the Kar

Sewaks  who  actually  demolished  the  Masjid,  and  others  who

were the instigators.  The Court thought that it was faced with two

alternatives,  and  chose  the  lesser  alternative  of  dropping  the

proceedings against  these 21 persons so that  the proceedings

against  the  Kar  Sewaks  could  carry  on.   A revision  was  filed

against the order dated 4th May, 2001 before the High Court which

led to the passing of  the impugned Judgment  dated 22nd May,

2010. This Judgment upheld the Judgment dated 4 th May, 2001

holding that there were two classes of accused, namely, leaders

who were on the dais exhorting the Kar Sewaks at 200 meters

from the Masjid, and the Kar Sewaks themselves.  The nature of

the accusations against both was different and their involvement

was for different criminal offences. The submission on behalf of

the  CBI  that  the  Lower  Court  could  not  have  discharged  21

accused persons as it would amount to reviewing the order dated

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9th September, 1997,  was turned down.  The CBI also raised a

plea that  the embargo against  prosecution was only  against  8

persons insofar as 3 offences and 3 offences alone concerning

Sections 153A, 153B and 505 IPC.  It  was held that the entire

crime recorded in FIR No.198 of 1992 would encompass Sections

other  than  the  3  Sections  mentioned  and  this  plea  was  also,

therefore,  turned  down.   Criminal  conspiracy, according  to  the

impugned judgment, was never made out against the aforesaid 8

or 13 persons as otherwise the supplementary charge sheet filed

by the CBI  at  Rae Bareilly  would  have included Section 120B

which it did not.  Turning down the CBI’s plea that the judgment

dated 12th February, 2001 had laid down that a joint charge sheet

on  the  ground  that  different  offences  were  committed  in  the

course of the same transaction, and a plea that a prima facie case

had been made out of conspiracy, together with the fact that order

dated 9th September, 1997 continues to survive qua all the other

accused  was  also  turned  down  by  the  impugned  judgment,

holding :

“Otherwise also the accusation/charge of  conspiracy (under  Section  120-B  IPC)  in  respect  of  Sections 153-A, 153-B and 505 IPC against accused of Crime No.198  of  1992  does  not  appear  to  be  of  any significant consequence when Sections 147 and 149 IPC have already been added.  

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Similarly  if  the  accusation  regarding  criminal conspiracy punishable under Section 120-B IPC has not been invoked against the eight main leaders then how it can be invoked against rest 13-1=12 leaders. The accusations against these remaining 13 accused who have also been found to be within the ambit of Crime No.198 of 1992, have also to be same because they were also sharing the same dais at Ram Katha Kunj  with  those  8  persons.   Finally,  therefore,  this submission also lacks merit.”  

10. It  was  further  held  that  if  the  CBI  had  any  evidence  of

conspiracy it  can file a supplementary charge sheet before the

Court at Rae Bareilly which was seized of Crime No.198 of 1992.

Holding that from the very beginning two separate FIRs were filed

because of two different places of occurrence and different nature

of accusations, the judgment then went on to impugn the CBI’s

preparing a joint charge-sheet for all 49 FIRs and ultimately found

that  there  is  no  illegality  or  impropriety  in  the  impugned order

dated 4th May, 2001.  The High Court, therefore, by the impugned

order, dismissed the revision filed against the said order.

11. Shri Neeraj Kaul, learned Addl. Solicitor General, appearing

on behalf  of  the CBI  has argued before  us that  the impugned

judgment has completely misinterpreted the judgment dated 12th

February,  2001  and  confirmed  the  dropping  of  proceedings

against 21 accused persons which could not be done.   According

to Shri Kaul, an artificial distinction was made by the impugned

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judgment between different kinds of offences and offenders when,

in point of fact, the 2001 judgment expressly upheld the filing of a

joint charge sheet by CBI.  He went on to contend that the offence

of conspiracy was already contained in the charges made in FIR

No.197 of 1992 before the Special Court, Lucknow and that it was

for this reason that the Section 120B charge was not added in the

supplementary charge sheet filed against the aforesaid 8 accused

persons  at  Rae  Bareilly.   This  was  completely  missed  by  the

impugned judgment, which mistakenly held that it was possible for

the  CBI  to  add  the  charge  of  Section  120B  at  Rae  Bareilly.

According to Shri Kaul, if this was done then two different Special

Courts would have to decide on the same criminal conspiracy and

might come to different conclusions regarding the same, which is

the basic infirmity in the impugned judgment.  He added that none

of the aforesaid 21 accused persons should have been dropped,

and  the  CBI  had  filed  a  supplementary  charge  sheet  at  Rae

Bareilly against the 8 accused persons only because it wished to

conclude the trial  against  them expeditiously, which could  only

have happened if they were proceeded against at Rae Bareilly,

since  the  State  Government  refused to  cure  the  defect  in  the

notification dated 8th October, 1993.  

12. Shri  K.K.  Venugopal,  learned senior  counsel  on behalf  of

14

Respondent Nos.4 and 5, has argued that the judgment dated 12 th

February, 2001 cannot be reopened at this stage as the Supreme

Court  has dismissed an appeal  filed against  it  and has further

dismissed  a  review  petition  and  a  curative  petition.   The  CBI

cannot  be  allowed  to  re-agitate  what  has  been  closed  by  the

aforesaid  judgment.   Moreover, since the  order  dated  4 th May,

2001  merely  implements  the  judgment  and  order  dated  12 th

February,  2001  and  the  impugned  judgment  upheld  the  said

judgment  dated  4th May,  2001,  CBI’s  appeal  ought  to  be

dismissed.  Since the trial against the 8 accused is proceeding at

Rae Bareilly, no question of a joint trial before the Special Court at

Lucknow can arise at this stage in view of the final and binding

decision of this Court dismissing the appeal against the judgment

dated 12th February, 2001.  According to learned senior counsel,

Article 142 of the Constitution cannot be used by this Court to

transfer  proceedings  against  the  aforesaid  8  accused  persons

from  Rae  Bareilly  to  Lucknow  in  view  of  the  fact  that  the

fundamental  rights  guaranteed  to  the  aforesaid  8  accused

persons under Article 21 of the Constitution would otherwise be

infringed  inasmuch  as  a  right  of  appeal  from  the  learned

Magistrate,  Rae Bareilly  to the Sessions Court  would be taken

away.  The learned senior counsel also referred to Section 407 (1)

15

of the Cr.P.C. by which it was clear that an order of transfer from

one Special  Judge to another  within the same State would be

covered by the aforesaid provision and could only be done by the

High Court of the concerned State in which both the lower Courts

are  situated.    Since  Article  142  cannot  be  used  against

substantive provisions of law, this would be a violation of Section

407 (1) which permits only the High Court to transfer such a case.

The learned senior  counsel referred to a number of  judgments

setting out that the powers of the Supreme Court under Article

142 cannot be used against a mandatory substantive provision of

law.   

13. Shri  Kapil  Sibal,  learned senior counsel appearing for the

Appellants in SLP (Crl.) No.2705 of 2015 was permitted by us to

argue treating the SLP Petitioner as an intervenor.  Consequently,

he addressed us only on questions of law.  According to learned

senior counsel, this Court ought to transfer the case pending at

Rae Bareilly to Lucknow as a joint charge sheet has been filed

clubbing all the 49 FIRs, including FIR No.198 of 1992.  Nothing

prevented this Court from using this extremely wide power under

Article 142 to do complete justice.  He further pointed out that any

reliance  on  the  judgment  in  A.R.  Antulay v.  R.S.  Nayak  &

Another, (1988)  2  SCC  602,  would  be  incorrect  as  the  said

16

judgment  was wholly  distinguishable.    According to him,  on a

reading of Sections 216 and 223 of the Code, it is clear that the

trial  need  not  begin  de  novo but  that  the  witnesses  already

examined, both in Rae Bareilly and in Lucknow, could be recalled

for the limited purpose of cross-examination on charges that are

now to be added.  

14. We have heard the learned counsel for the parties.  We are

of the view that the judgment dated 12 th February, 2001, clearly

and unequivocally held that a joint charge sheet had been filed by

the CBI on the ground that all the offences were committed in the

course  of  the  same  transaction  to  accomplish  the  conspiracy

alleged.  The evidence for all these offences is almost the same

and these offences,  therefore,  cannot  be separated  from each

other, irrespective of the fact that 49 different FIRs were lodged.  It

is clear that in holding to the contrary, the impugned judgment,

which  upheld  the  judgment  dated  4th May,  2001,  is  clearly

erroneous.  Also, we agree with Mr. Neeraj Kaul that the offence

of criminal conspiracy is already there in the joint charge sheet

filed by the CBI against all  the named accused, which includes

the 21 accused who have been discharged.  That being the case,

it  is  clear  that  the said accused could  not  possibly  have been

discharged, as they were already arrayed as accused insofar as

17

the charge of criminal conspiracy was concerned, which would be

gone into by the Special Judge, Lucknow, while dealing with the

offences made out in FIR No.197 of 1992.  In this regard also, we

are  of  the  view that  the  impugned judgment  in  holding  to  the

contrary is not correct.

15. The impugned judgment also artificially divided offences and

offenders into two groups which did not follow from the judgment

dated 12th February, 2001.  On the contrary, the said judgment

having upheld the joint charge sheet and having prima facie found

a case of criminal conspiracy being made out, this could not have

been held contrary to the said judgment.  Further, the impugned

judgment  contradicts  itself  when  it  says  that  the  21  accused

persons form one group in several places, whereas the very same

judgment  in  paragraph  31  thereof  clearly  made  a  distinction

between the 8 accused and the other group of 13 accused.  It

went on to say:

“Another submission on behalf  of  the CBI is  that  in respect of S/Sri Bala Saheb Thackerey, Kalyan Singh and Satish Pradhan, the learned lower court has dealt with  very  concisely  and  has  not  given  sufficient reasons  for  treating  them to  be  within  the  ambit  of Crime No.198 of 1992.  The discussion made by the learned lower court in respect of these accused may be  precise  but  the  conclusion  arrived  at  is  correct because  these  leaders  were  not  even  physically present  on  the  said  dias  (sic)  along  with  other leaders.”  

18

16.  The  aforesaid  conclusion  militates  against  what  was

repeatedly said by the impugned judgment in several places, and

it is clear that 13 persons were not physically present on the dais

along with the other 8 accused persons.  It is clear from a reading

of the judgment dated 12th February, 2001, that the High Court

expected that the defect noticed in the notification would be cured

soon after the delivery of the judgment in which case a joint trial

would have proceeded.  This, however, did not happen, because

the CBI did not challenge the rejection of the request to cure this

technical defect. Instead the course taken by the CBI has caused

great  confusion.  The  filing  of  the  supplementary  charge  sheet

against 8 accused persons which is going on separately at Rae

Bareilly  and the dropping altogether  of  charges against  the 13

accused persons, after the Judgment dated 12 th February, 2001

has completely derailed the joint trial envisaged and has resulted

in a fractured prosecution going on in two places simultaneously

based on a joint charge sheet filed by the CBI itself. In order to

remedy what ought to have been done by the State Government

in 2001 by curing the technical  defect  pointed out  by the High

Court of Allahabad in the judgment dated 12th February, 2001, we

are of the view that the best course in the present case would be

19

to transfer the proceedings going on at Rae Bareilly to the Court

of  Sessions at  Lucknow so that  a joint  trial  of  all  the offences

mentioned in the joint charge sheet filed by the CBI against the

persons named could proceed.  In our view, since the charge of

criminal conspiracy against all 21 accused is already in the joint

charge sheet filed by the CBI at Lucknow, this charge could be

added to the charges already framed against the survivors of the

group of 8 accused.  As against the survivors of the group of 13,

Penal  Code offences mentioned in  the joint  charge sheet  also

need to be added. In our opinion, there is no need for a de novo

trial  inasmuch as the aforesaid charges against all  21 accused

persons  can  conveniently  be  added  under  Section  216  of  the

Code of Criminal Procedure in the ongoing trial.  No prejudice will

be  caused  to  the  accused  as  they  have  the  right  to  recall

witnesses already examined either in Rae Bareilly or in Lucknow

for the purpose of cross-examination.  The Court of Sessions at

Lucknow will have due regard to Section 217(a) of the Code of

Criminal Procedure so that the right to recall is not so exercised

as to unduly protract the trial.  

17. It remains to deal with some of the arguments by Shri K.K.

Venugopal, learned senior counsel.   According to learned senior

counsel, our powers under Article 142 cannot be used to supplant

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the law.  Article 142 is set out hereunder:

“142.  Enforcement  of  decrees  and  orders  of Supreme Court and orders as to discovery, etc.— (1)  The  Supreme  Court  in  the  exercise  of  its jurisdiction may pass such decree or make such order as  is  necessary  for  doing  complete  justice  in  any cause or matter pending before it, and any decree so passed  or  order  so  made  shall  be  enforceable throughout  the  territory  of  India  in  such  manner  as may  be  prescribed  by  or  under  any  law  made  by Parliament  and,  until  provision  in  that  behalf  is  so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf  by  Parliament,  the  Supreme  Court  shall,  as respects the whole of  the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

18. A  number  of  judgments  have  been  cited  including  the

celebrated  Supreme  Court  judgment  in  Supreme  Court  Bar

Association v. Union of India & Another, 1998 (4) SCC 409, in

which  a  Constitution  Bench of  this  Court  held  that  Article  142

cannot authorize the Court to ignore the substantive rights of a

litigant while dealing with the cause pending before it and cannot

be used to supplant the substantive law applicable to the cause

before this Court.  A large number of other judgments following

this judgment were also cited.  It is necessary only to refer to a

recent  judgment  in  State of  Punjab v.  Rafiq  Masih, (2014)  8

21

SCC 883, in which this Court held:

“Article  142  of  the  Constitution  of  India  is supplementary  in  nature  and  cannot  supplant  the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that  gives  preference  to  equity  over  law.  It  is  a justice-oriented approach as against the strict rigours of  the  law. The  directions  issued  by  the  Court  can normally  be  categorised  into  one,  in  the  nature  of moulding of relief and the other, as the declaration of law. “Declaration  of  law”  as  contemplated  in  Article 141  of  the  Constitution:  is  the  speech  express  or necessarily implied by the highest court of the land. This Court in Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72] , Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381 : 2006 SCC (L&S) 1986] and in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667  :  2006  SCC  (L&S)  190]  has  expounded  the principle and extolled the power of Article 142 of the Constitution of  India to new heights by laying down that  the  directions  issued  under  Article  142  do  not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction (sic) issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under  Article  141  of  the  Constitution  of  India.  The Court  has  compartmentalised  and  differentiated  the relief  in  the  operative  portion  of  the  judgment  by exercise  of  powers  under  Article  142  of  the Constitution  as  against  the  law  declared.  The directions  of  the  Court  under  Article  142  of  the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour  of  the  law  in  view  of  the  peculiar  facts  and circumstances  do  not  comprise  the  ratio  decidendi and  therefore  lose  its  basic  premise  of  making  it  a binding  precedent.  This  Court  on  the  qui  vive  has expanded  the  horizons  of  Article  142  of  the Constitution  by  keeping  it  outside  the  purview  of Article 141 of  the Constitution and by declaring it  a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the

22

case.” [para 12]

19. Article 142(1) of the Constitution of India had no counterpart

in  the  Government  of  India  Act,  1935  and  to  the  best  of  our

knowledge,  does  not  have  any  counterpart  in  any  other

Constitution world over.  The Latin maxim fiat justitia ruat cælum

is  what  first  comes to  mind on a  reading  of  Article  142  –  Let

justice be done though the heavens fall.1 This Article gives a very

wide power to do complete justice to the parties before the Court,

a power which exists in the Supreme Court because the judgment

delivered by it will finally end the litigation between the parties.  It

is important to notice that Article 142 follows upon Article 141 of

the Constitution, in which it is stated that the law declared by the

Supreme Court shall be binding on all Courts within the territory of

India.  Thus, every judgment delivered by the Supreme Court has

two components – the law declared which binds Courts in future

litigation between persons, and the doing of complete justice in

any cause or matter which is pending before it. It is, in fact, an

Article that turns one of the maxims of equity on its head, namely,

that equity follows the law.  By Article 142, as has been held in the

1

This maxim was quoted by Lord Mansfield in R. v. Wilkes, (1770) 4 Burr 2527: (1558-1774) All ER Rep. 570. The passage in which it is quoted makes interesting reading, and among the many other things stated by that great Judge, it is stated :  ‘I wish POPULARITY: but it is that popularity which follows; not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble means.’

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State of Punjab judgment,  equity has been given precedence

over  law.  But  it  is  not  the kind of  equity  which can disregard

mandatory substantive provisions of law when the Court issues

directions under Article 142. While moulding relief, the Court can

go to the extent of relaxing the application of law to the parties or

exempting altogether  the parties from the rigours of  the law in

view of the peculiar facts and circumstances of the case.  This

being so, it is clear that this Court has the power, nay, the duty to

do  complete  justice  in  a  case  when  found  necessary.  In  the

present  case,  crimes  which  shake  the  secular  fabric  of  the

Constitution of  India  have allegedly been committed almost  25

years ago.  The accused persons have not been brought to book

largely  because of  the conduct  of  the CBI  in  not  pursuing the

prosecution of the aforesaid alleged offenders in a joint trial, and

because of technical defects which were easily curable, but which

were not cured by the State Government. Almost 25 years have

gone and yet we are solemnly reminded that Respondent Nos.4

and 5’s fundamental rights should not be curtailed by any order

passed under Article 142.  When asked what these rights were,

we were referred to the judgment in  Antulay’s case (supra) for

the proposition that  if  transfer  of  the case against  Respondent

Nos.4 and 5 is made from Rae Bareilly to Lucknow, one right of

24

appeal would be taken away inasmuch as the transfer would be

from a Magistrate to a Court of Sessions.     

20.  This contention would not have been available if,  shortly

after  the  judgment  dated  12th February,  2001,  the  State

Government had cured the defect by issuing another notification

after consulting the High Court.  Equally, if the refusal of the State

Government to cure this technical defect had been challenged by

the CBI in the High Court, and set aside with a direction to issue a

notification curing the defect, a joint trial at Lucknow would have

been well on its way and may even have been concluded by now.

No selective supplementary charge sheet filed by the CBI at Rae

Bareilly splitting the trial would then have been necessary.  What

is being done by us today is only to remedy what was expected

by the Allahabad High Court to have been done shortly after its

Judgment dated 12th February, 2001.    

21. In the Antulay judgment, Section 7(1) of the Criminal Law

Amendment Act, 1952, was under consideration.  Section 7(1) is

reproduced herein below:

“7. Cases  triable  by  Special  Judges.— (1) Notwithstanding  anything  contained  in  the  Code  of Criminal Procedure, 1898 (5 of 1898), or in any other law the offences specified in sub-section (1) of Section 6 shall be triable by Special Judges only.”

22. The  majority  judgment  of  Mukharji,  J.,  in  paragraph  24,

25

adverts to this section and emphasises the fact that only Special

Judges  are  to  try  certain  offences,  notwithstanding  anything

contained  in  the  Criminal  Procedure  Code.  There  is  no  such

provision in the facts of the present case. In point of fact, Section

11(1) proviso of the Code of Criminal Procedure only states that

the State Government may establish for  any local  area one or

more  Special  Courts,  and  where  such  Special  Court  is

established, no other court in the local area shall have jurisdiction

to try the case or classes of case triable by it.  Conspicuous by its

absence is a non obstante clause in Section 11.     

23. In paragraph 34, Mukharji, J. stated that Sections 406 and

407 were covered by the non-obstante  clause in  Section 7(1).

This would mean that the High Court under Section 407 could not

transfer a case to itself as provided under Section 407(1). It is in

this context that it  is stated that the right of appeal to the High

Court  from  the  Special  Court  is  taken  away,  violating  the

procedure  established  by  law  under  Article  21.  Also,  for  this

reason, in paragraph 38 of the said judgment it is stated that the

order of the Supreme Court transferring cases from the Special

Judge to the High Court is not authorised by law. Also, the further

right to move the High Court by way of revision or first appeal

under Section 9 of the said Act was therefore taken away. In the

26

present case, assuming that the High Court were to exercise the

power of transfer under Section 407, the High Court could have

transferred the case pending at Rae Bareilly and/or at Lucknow to

itself  under  Section  407  (1)  and  (8).  The  absence  of  a

non-obstante clause under Section 11(1) proviso of the Criminal

Procedure Code thus makes it clear that Article 21 in the facts of

the present case cannot be said to have been infringed, as even a

transfer from a subordinate court to the High Court, which would

undoubtedly take away the right of appeal, is itself envisaged as

the  ‘procedure  established  by  law’  under  Section  407  of  the

Criminal Procedure Code.  

24. In the present case, the power of transfer is being exercised

to  transfer  a  case  from one Special  Judge to  another  Special

Judge, and not to the High Court. The fact that one Special Judge

happens to be a Magistrate, whereas the other Special Judge has

committed the case to a Court of Sessions would not make any

difference as, as has been stated hereinabove, even a right of

appeal  from a Magistrate to the Sessions Court,  and from the

Sessions Court to the High Court could be taken away under the

procedure established by law, i.e., by virtue of Section 407 (1) and

(8) if the case is required to be transferred from the Magistrate at

Rae Bareilly to the High Court itself.  Hence,  under Section 407,

27

even if 2 tiers of appeal are done away with, there is no infraction

of  Article  21  as  such  taking  away  of  the  right  of  appeal  is

expressly contemplated by Section 407(1)(iv) read with Section

407(8). In  the circumstances,  Antulay’s judgment which dealt

with the right of a substantive appeal from a Special Judge to the

High Court being taken away by an order of transfer contrary to

the  non  obstante  clause  in  Section  7(1)  of  the  Criminal  Law

Amendment  Act,  1952  would  not  apply  in  the  facts  and

circumstances before us.   

25. That  Article  142  can  be  used  for  a  procedural  purpose,

namely, to transfer a proceeding from one Court to another does

not  require  much  argument.   However,  Shri  Venugopal  relied

upon  Sections  406  and  407  of  the  Criminal  Procedure  Code,

which are set out hereinbelow:

“406. Power of Supreme Court to transfer cases and appeals.— (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate  to  one  High  Court  to  another  Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2)  The  Supreme Court  may act  under  this  section only on the application of the Attorney-General of India or  of  a party  interested,  and every such application

28

shall be made by motion, which shall, except when the applicant  is  the  Attorney-General  of  India  or  the Advocate-General  of  the  State,  be  supported  by affidavit or affirmation.

(3)  Where  any  application  for  the  exercise  of  the powers  conferred  by  this  section  is  dismissed,  the Supreme  Court  may,  if  it  is  of  opinion  that  the application  was  frivolous  or  vexatious,  order  the applicant  to  pay  by  way  of  compensation  to  any person who has opposed the application such sum not exceeding one thousand rupees as it  may consider appropriate in the circumstances of the case.

407.  Power  of  High Court  to  transfer  cases and appeals.— (1) Whenever it is made to appear to the High Court—

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision  of  this  Code,  or  will  tend  to  the  general convenience  of  the  parties  or  witnesses,  or  is expedient for the ends of justice,

it may order—

(i) that  any  offence be inquired  into  or  tried  by  any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that  any  particular  case  or  appeal,  or  class  of

29

cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for  transferring  a  case  from  one  Criminal  Court  to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4)  When  such  application  is  made  by  an  accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5)  Every  accused  person  making  such  application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits  of  the application unless at  least  twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

30

(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the  application,  the  proceedings  in  the  subordinate Court  shall  be  stayed,  on  such  terms  as  the  High Court may think fit to impose:

Provided  that  such  stay  shall  not  affect  the subordinate Court's power of  remand under Section 309.

(7)  Where  an  application  for  an  order  under sub-section (1) is dismissed, the High Court may, if it is  of  opinion  that  the  application  was  frivolous  or vexatious,  order  the  applicant  to  pay  by  way  of compensation  to  any  person  who has  opposed  the application  such  sum  not  exceeding  one  thousand rupees as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that  a  case  be  transferred  from any  Court  for  trial before itself,  it  shall  observe in  such trial  the same procedure which that  Court  would  have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under Section 197.”

26. According to Shri  Venugopal,  the Supreme Court’s power

under Section 406 is circumscribed by transfer taking place only

from a Criminal Court subordinate to one High Court to another

Criminal  Court  of  equal  or  superior  jurisdiction  subordinate  to

another High Court.  Clearly Section 406 does not apply to the

facts  of  the present  case as the transfer  is  from one Criminal

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Court  to another  Criminal  Court,  both subordinate to the same

High  Court.   This  being  the  case,  nothing  prevents  us  from

utilizing our power under Article 142 to transfer a proceeding from

one  Criminal  Court  to  another  Criminal  Court  under  the  same

High Court as Section 406 does not apply at all.  Learned senior

counsel  went  on to add that  such a power is  exercisable only

under Section 407 by the High Court and not this Court.  Again,

the fact that the High Court has been given a certain power of

transfer under the Code of Criminal Procedure does not detract

from the Supreme Court using a constitutional power under Article

142 to achieve the same end to do complete justice in the matter

before it. In the present case, there is no substantive mandatory

provision which is infracted by using Article 142.   This being the

case,  both  grounds  taken  by  Shri  Venugopal  are  without

substance.   

27. We have been shown a judgment of the High Court dated 8 th

December, 2011, in which the matter proceeding at Rae Bareilly

was  to  be  proceeded  with  on  a  day-to-day  basis  until  it  is

concluded.  We have been told that this has only been followed in

the  breach  as  less  than  a  hundred  witnesses  have  yet  been

examined.  Any number of adjournments been taken by the CBI

as well as the other persons.  One other disturbing feature is the

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fact that the Special Judge designated by the notification to carry

on  the  trial  at  Rae Bareilly  has  been transferred  a  number  of

times, as a result of which the matter could not be taken up on the

dates fixed.  This being the case, while allowing the appeal of the

CBI  and  setting  aside  the  impugned  judgment,  we  issue  the

following directions:

i. The  proceedings  viz.  Crime  No.  198/92,

RC.1(S)/92/SIC-IV/ND in the Court of  the Special Judicial

Magistrate at Rae Bareilly will stand transferred to the Court

of  Additional  Sessions  Judge  (Ayodhya  Matters)  at

Lucknow.   

ii. The Court of Sessions will frame an additional charge under

Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar, Ms.

Uma  Bharati,  Ms.  Sadhvi  Ritambara,  Mr.  Murli  Manohar

Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions

will frame additional charges under Section 120-B and the

other provisions of the Penal Code mentioned in the joint

charge  sheet  filed  by  the  CBI  against  Mr.  Champat  Rai

Bansal, Mr. Satish Pradhan, Mr. Dharam Das, Mr. Mahant

Nritya Gopal Das, Mr. Mahamadleshwar Jagdish Muni, Mr.

Ram Bilas Vadanti, Mr. Vaikunth Lal Sharma @ Prem, and

Dr. Satish  Chandra  Nagar.   Mr. Kalyan  Singh,  being  the

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Governor of Rajasthan, is entitled to immunity under Article

361 of the Constitution as long as he remains Governor of

Rajasthan.  The Court of Sessions will frame charges and

move against him as soon as he ceases to be Governor.

iii. The Court of Sessions will, after transfer of the proceedings

from  Rae  Bareilly  to  Lucknow  and  framing  of  additional

charges,  within  four  weeks,  take up all  the matters  on a

day-to-day  basis  from  the  stage  at  which  the  trial

proceedings,  both  at  Rae  Bareilly  and  at  Lucknow,  are

continuing, until conclusion of the trial.  There shall be no de

novo  trial.  There  shall  be  no  transfer  of  the  Judge

conducting the trial until the entire trial concludes.  The case

shall  not  be  adjourned  on  any  ground  except  when  the

Sessions Court finds it  impossible to carry on the trial for

that  particular  date.   In  such  an  event,  on  grant  of

adjournment to the next  day or  a closely proximate date,

reasons for the same shall be recorded in writing.   

iv. The CBI shall ensure that on every date fixed for evidence,

some prosecution witnesses must remain present, so that

for want of witnesses the matter be not adjourned.

v. The Sessions Court will  complete the trial  and deliver the

judgment within a period of 2 years from the date of receipt

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of this judgment.   

vi. We make it clear that liberty is given to any of the parties

before the Sessions Court to approach us in the event of

these directions not being carried out, both in letter and in

spirit.   

28. The appeal is disposed of accordingly.

               …………………………………..J.                                                               (PINAKI CHANDRA  GHOSE )

     …….…………………………… J.       (R.F. NARIMAN)

New Delhi; April 19, 2017.

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Item No. 1B                 COURT NO.6               SECTION II (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Crl. Appeal No. 751 of 2017 Arising out of Special Leave Petition (Crl.) No(s).  2275/2011 (Arising  out  of  impugned  final  judgment  and  order  dated 20/05/2010  in  CRLR  No.  217/2001  passed  by  the  High  Court  Of Judicature at Allahabad, Lucknow Bench) STATE(TR)CENTRAL BUREAU OF INVESTIGATION           Petitioner(s)                                 VERSUS SHRI KALYAN SINGH(FORMER CM OF UP) & ORS           Respondent(s) WITH SLP(Crl) No. 2705/2015 Date : 19/04/2017 These matters were called on for  

pronouncement of judgment today. Counsel for the parties:-

Mr. Neeraj Kishan Kaul, ASG Mr. Samar Kachwaha, Adv. Mr. Nitesh Daryanani, Adv. Ms. Chanan Parwani, Adv. Mr. Sanyat Lodha, Adv.

                  Mr. Mukesh Kumar Maroria,Adv.                       

Mr. Vikramjit Banerjee, Sr. Adv. Mr. S.S. Shamshery, Adv. Mr. Amit Sharma, Adv. Mr. Bhakti Vardhan Singh, Adv. Mr. R. C. Kohli, AOR

                 Mr. Merusagar Samantaray, AOR Mr. Ankur Talwar, Adv. Ms. Viddusshi, Adv. Lhinghneivah, Adv. Mr. Kapil Sibal, Sr. Adv. Ms. Kamini Jaiswal, Adv. Mr. M. R. Shamshad, AOR Mr. Farrukh Rasheed, Adv. Ms. Preetika Dwivedi, Adv. Mr. Syed Rehan, Adv. Mr. Aditya Samaddar, Adv. Mr. Saurabh S. Shamsheri, Adv.

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                 Mr. Vishwa Pal Singh, AOR Mr. K.K. Venugopal, Sr. Adv. Mr. Vikramjit Banerjee, Sr. Adv. Mr. S.S. Shamshery, Adv. Mr. D. Bharat Kumar, Adv. Mr. Bhakti Vardhan Singh, Adv.

                 Ms. Ruchi Kohli, AOR                   Mr. Sarad Kumar Singhania, AOR                                   Ms. Aparna Jha, AOR                   Mr. Nishant Ramakantrao Katneshwarkar, AOR                   Mr. Nachiketa Joshi, AOR                       

***** Hon'ble Mr. Justice R.F. Nariman pronounced the reportable

judgment  of  the  Bench  comprising  Hon'ble  Mr.  Justice  Pinaki Chandra Ghose and His Lordship.  Crl.  Appeal  No.  751  of  2017  (Arising  out  of  SLP  (Crl.)  No. 2275/2011:

Leave granted.  While allowing the appeal of the CBI and setting aside the impugned judgment, we issue the following directions:

i. The  proceedings  viz.  Crime  No.  198/92, RC.1(S)/92/SIC-IV/ND  in  the  Court  of  the  Special Judicial  Magistrate  at  Rae  Bareilly  will  stand transferred  to  the  Court  of  Additional  Sessions Judge (Ayodhya Matters) at Lucknow.   

ii. The Court of Sessions will frame an additional charge under Section 120-B against Mr. L.K. Advani, Mr.  Vinay  Katiar,  Ms.  Uma  Bharati,  Ms.  Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari  Dalmia.  The  Court  of  Sessions  will  frame additional  charges  under  Section  120-B  and  the other provisions of the Penal Code mentioned in the joint  charge  sheet  filed  by  the  CBI  against  Mr. Champat Rai Bansal, Mr. Satish Pradhan, Mr. Dharam

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Das,  Mr.  Mahant  Nritya  Gopal  Das,  Mr. Mahamadleshwar Jagdish Muni, Mr. Ram Bilas Vadanti, Mr.  Vaikunth  Lal  Sharma  @  Prem,  and  Dr.  Satish Chandra  Nagar.   Mr.  Kalyan  Singh,  being  the Governor  of  Rajasthan,  is  entitled  to  immunity under Article 361 of the Constitution as long as he remains  Governor  of  Rajasthan.   The  Court  of Sessions will frame charges and move against him as soon as he ceases to be Governor.

iii. The Court of Sessions will, after transfer of the proceedings  from  Rae  Bareilly  to  Lucknow  and framing of additional charges, within four weeks, take up all the matters on a day-to-day basis from the stage at which the trial proceedings, both at Rae Bareilly and at Lucknow, are continuing, until conclusion of the trial.  There shall be no de novo trial.  There  shall  be  no  transfer  of  the  Judge conducting  the  trial  until  the  entire  trial concludes.  The case shall not be adjourned on any ground  except  when  the  Sessions  Court  finds  it impossible  to  carry  on  the  trial  for  that particular date.  In such an event, on grant of adjournment to the next day or a closely proximate date,  reasons  for  the  same  shall  be  recorded  in writing.   

iv. The CBI shall ensure that on every date fixed for evidence,  some  prosecution  witnesses  must  remain present, so that for want of witnesses the matter be not adjourned.

v.  The  Sessions  Court  will  complete  the  trial  and deliver  the  judgment  within  a  period  of  2  years from the date of receipt of this judgment.   

vi. We make it clear that liberty is given to any of

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the parties before the Sessions Court to approach us  in  the  event  of  these  directions  not  being carried out, both in letter and in spirit.   

The appeal is disposed of accordingly in terms of the signed reportable judgment. SLP (Crl) No. 2705/2015:

We permitted the learned senior counsel appearing in this matter to argue treating the Petitioner in this Special Leave Petition as an intervenor.  Consequently, the learned senior counsel addressed us only on questions of law.  

Since we are disposing of the appeal arising out of SLP (Crl.) No. 2275 of 2011, this Special Leave Petition also stands disposed of.    

(R.NATARAJAN)       (SNEH LATA SHARMA) Court Master       Court Master

(Signed reportable judgment is placed on the file)  

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