2017 Supreme(SC) 378

SUPREME COURT OF INDIA
PINAKI CHANDRA GHOSE, ROHINTON FALI NARIMAN, JJ.
State (through) Central Bureau of Investigation – Appellant
Versus
Shri Kalyan Singh (former CM of UP) & Ors. – Respondents
Criminal Appeal No.751of 2017 (@Special Leave Petition (Criminal) No.2275 of 2011)
Decided On : 19-04-2017

IMPORTANT POINTS
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 stand transferred to the Court of Additional Sessions Judge (Ayodhya Matters) at Lucknow.
ii. The Court of Sessions will frame an additional charge under Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions will frame additional charges under Section 120B and the other provisions of the Penal Code mentioned in the joint charge sheet filed by the CBI against Mr. Champat Rai Bansal, Mr. Satish Pradhan, Mr. Dharam Das, Mr. Mahant Nritya Gopal Das, Mr. Mahamadleshwar Jagdish Muni, Mr. Ram Bilas Vadanti, Mr. Vaikunth Lal Sharma @ Prem, and Dr. Satish Chandra Nagar. Mr. Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor.
iii. The Court of Sessions will, after transfer of the proceedings from Rae Bareilly to Lucknow and framing of additional charges, within four weeks, take up all the matters on a day-to-day basis from the stage at which the trial proceedings, both at Rae Bareilly and at Lucknow, are continuing, until conclusion of the trial. There shall be no de novo trial. There shall be no transfer of the Judge conducting the trial until the entire trial concludes. The case shall not be adjourned on any ground except when the Sessions Court finds it impossible to carry on the trial for that particular date. In such an event, on grant of adjournment to the next day or a closely proximate date, reasons for the same shall be recorded in writing.
iv. The CBI shall ensure that on every date fixed for evidence, some prosecution witnesses must remain present, so that for want of witnesses the matter be not adjourned.
v. The Sessions Court will complete the trial and deliver the judgment within a period of 2 years from the date of receipt of this judgment.
vi. We make it clear that liberty is given to any of 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.

Headnote:(a) Criminal Procedure Code, 1973 – Section 11(1), proviso – State government, in consultation with the High Court notifying on 9th September, 1993 that cases under FIR 197 and other 46 FIRs were to be tried by a Special Court at Lucknow – CBI filing joint charge sheet – State government amending notification dated 9th September, 1993 on 8th October 1993 to insert FIR 198 so that all cases would be tried jointly – Trial court at Lucknow proceeding with joint trial of all accused – Trial court judgment concerning 8 accused of FIR 197 set aside by High Court by order dated 12th February, 2001 opining that the notification dated 8th October 1993 was invalid for lack of consultation with High Court and hence the trial court at Lucknow did not have jurisdiction – CBI request to State Government to rectify the defect refused – CBI not challenging the refusal – Order of High Court dated 12th February, 2001 becoming final – Operates as res judicata. (Para 5, 8)

       (b) Criminal justice – CBI filing joint charge sheet, in view of all the offences having been committed in course of same transaction to accomplish the conspiracy alleged – Further, evidence for all these offences being almost the same, these offences cannot be separated from each other – Judgment upholding the judgment dated 4th May, 2001 – Erroneous – Offence of conspiracy being there in joint charge sheet, discharge of 21 accused also held erroneous. (Para 14)

       (1988) 2 SCC 602 – Referred

       (c) Criminal trial – Trial court artificially dividing the accused into 2 groups – 8 in one group and 13 in the other group – Impermissible in view of finding of criminal conspiracy. (Para 15)

       (d) Constitution of India – Article 142 – CBI filing joint charge sheet in all 49 FIRs at Court of Sessions at Lucknow – Cases of 21 accused in FIR 198 being tried at Rae Bareli due to technical lacuna – CBI filing supplementary charge sheet against 8 accused of 21 – Cases against 13 accused dropped by trail court – Offences committed in one transaction being tried at two places on similar charges – Charge of conspiracy u/s 120-B, IPC leveled against all accused including the said 21 accused – Cases from Rae Bareli transferred to Lucknow – Charges against all 21 accused directed to be added in the ongoing trial u/s 216 Cr PC. (Para 16)

       (e) Constitution of India – Article 142 – No counterpart in any Constitution the world over – Fiat justitia ruat cælum – Let justice be done though the heavens fall – Doing complete justice to the parties – Wide powers. (Para 19)

       (1998) 4 SCC 409; (2014) 8 SCC 883; (1770) 4 Burr 2527: (1558-1774) All ER Rep. 570 – Referred

       (d) Constitution of India – Article 142 – Instantly crimes committed almost 25 years ago – Accused not brought to book because of lapses at different stages and levels – Transfer of the cases from Magistrate at Rae Bareli to Sessions Court at Lucknow being resisted on ground of taking away one right of appeal from Magistrate to Sessions court – Not tenable – Situation would not have arisen, had the defects/lapses been rectified/cured by CBI and the State Government – By transferring the cases from Rae Bareli to Lucknow Supreme Court is doing what CBI and the State Government should have done soon after judgment of High Court dated 12th February, 2001 – Section 407, Cr PC. (Para 19, 24)

       (1988) 2 SCC 602 – Distinguished

       (e) Constitution of India – Article 142 – can be used for transfer a proceeding from one Court to another – Section 406 and 407, Code of Criminal Procedure, 1973 – Section 406 not applicable – Power of High Court of transferring cases u/s 407 – No bar on exercise of power by Supreme Court under Article 142 – Directions issued. (Para 26, 27, 28)

       Facts of the case:

       The present appeal arises out of the demolition of Babri Masjid. Two FIRs were lodged on 6th December, 1992.

       The first FIR 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 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.

       The trial court found that the evidence prima facie made out offences as per the charge sheet.

       Criminal revision petition filed before High Court which held that 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 named eight accused for the three offences stated therein. It also held that 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. 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 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. In all other respects, the impugned order dated 9th September, 1997 for the framing of charges, so far as 48 out of 49 cases are concerned, for the offences of criminal conspiracy read with other IPC offences, save and except the three IPC offences against the eight accused persons aforesaid, was upheld.        

       Finding of the Court:

       Cases of 13 accused proceeding at Rae Bareli needs to be transferred to Lucknow.

       Result: Appeal disposed of.