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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 6 th

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.  Giriraj  Kishore  and  Mr.

Vishnu Hari Dalmia, two of whom are dead due to passage of time

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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 13th 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 Das, and Dr. Satish Chandra

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Nagar.  It may be stated that owing to the passage of time, six of

these are since deceased namely Mr. Bala Saheb Thackeray, Mr.

Moreshwar  Save,  Mr.  Mahant  Avaidyanath  and  Mr.  Prama  Hans

Ram Chandra Das, Mr. Mahamandleshwar Jagdish Muni,  and Dr.

Satish Nagar.  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,

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Hindu activist, Shri  Vijay Bahadur Singh, Chief Security Officer,  Shri  Krishan  Temple,  Mathura,  UP, Shri  Navin Bahi Shukla, Hindu activist, 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

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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:

“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

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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  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  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

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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  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.

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(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 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

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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 Bhure,

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

2001.  This was dismissed by this Court on 29th 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

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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 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

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persons so that the proceedings against the Kar Sewaks could carry

on.  A revision was filed against the order dated 4 th 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 9 th

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

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would have included Section 120B which it did not.  Turning down

the CBI’s plea that the judgment dated 12 th 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.  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

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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 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

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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

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 4th May, 2001 merely

implements the judgment and order dated 12th February, 2001 and

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the impugned judgment  upheld  the said  judgment  dated 4 th 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) 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

Page 17

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  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.

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

the view that the judgment dated 12th 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 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.

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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.”  

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

Page 20

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  12th 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 of Allahabad in the judgment

dated 12th February, 2001, we are of the view that the best course in

the present case would be 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

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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

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

Page 22

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 SCC 883, in which this

Court held:

Page 23

“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 case.” [para 12]

Page 24

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 State of Punjab judgment, equity has been given

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.’

Page 25

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

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Rae Bareilly to Lucknow, one right of 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  12 th

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

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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, 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

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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 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

Page 29

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, 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

Page 30

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  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

Page 31

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 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

Page 32

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.

(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.

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(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 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

Page 34

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  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

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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. Ram Bilas Vadanti and Mr. Vaikunth Lal Sharma @

Prem.  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

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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  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.