Page 1 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

Page 2 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 8

th

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 5

th

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

Page 3 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,

Page 4 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 8

th

October, 1993, the State Government amended the

notification dated 9

th

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 9

th

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

Page 5 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

Page 6 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.

xxxxxxxxxxxxxxx

Page 7 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

Page 8 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

9

th

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 8

th

October, 1993 amending the notification

dated 9

th

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.

Page 9 (3)The impugned order dated 9

th

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

Page 10 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 8

th

October, 1993 on 16

th

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 29

th

November, 2002. A

review against this order was dismissed by a speaking Order dated

22

nd

March, 2007. A curative petition was also dismissed thereafter

on 12

th

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 8

th

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

Page 11 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 4

th

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

Page 12 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 22

nd

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

Page 13 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 9

th

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

Page 14 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

4

th

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 12

th

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

Page 15 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 8

th

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 4

th

May, 2001 merely

implements the judgment and order dated 12

th

February, 2001 and

Page 16 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 12

th

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.

Page 18 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 4

th

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.

Page 19 15.The impugned judgment also artificially divided offences and

offenders into two groups which did not follow from the judgment

dated 12

th

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 12

th

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 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 of Allahabad in the judgment

dated 12

th

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

Page 21 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

Page 26 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 12

th

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

Page 27 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

Page 28 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.

Page 33 (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

Page 35 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

Page 36 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.