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2017 (4) TMI 1564 - SUPREME COURTDemolition of Babri Masjid - offences of dacoity, robbery, causing of hurt, injuring/defiling places of public worship, promoting enmity between two groups on grounds of religion, etc. - HELD 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. 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 - A number of judgments have been cited including the celebrated Supreme Court judgment in Supreme Court Bar Association v. Union of India and Anr. [1998 (4) TMI 531 - SUPREME COURT], 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. 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, even a right of appeal from a Magistrate to the Sessions Court, and from the Sessions Court to the High Court could be taken away under the procedure established by law, i.e., by virtue of Section 407 (1) and (8) if the case is required to be transferred from the Magistrate at Rae Bareilly to the High Court itself - 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. The proceedings 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 - Appeal disposed off.
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