TMI Blog2017 (4) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Session ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e FIR alleges offences Under Sections 153-A, 153-B and Section 505 Indian Penal Code. 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 Indian Penal Code 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 Han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure, 1973 viz. that consultation with the High Court was lacking, this notification was ultimately struck down. 4. At this point, it is important to note that the CBI filed a supplementary chargesheet against the 8 persons mentioned hereinabove in the year 1996 at Lucknow. On 9th September, 1997, the Special Judge, Lucknow passed an order that there was a prima facie case against all the Accused persons for framing charges of criminal conspiracy Under Section 120-B read with various other Sections of the Penal Code. The Court held that all the offences were committed in the course of the same transaction which warranted a joint trial and that the case was exclusively triable by the Court of the Special Judge, Lucknow. It is worth setting out parts of this order which read as follows: There seems to be a prima facie case for offences Under Section 147/153-A/153-B/295/295-A/505 read with Under Section 149 Indian Penal Code against Accused Sri Lal Krishna, Ashok Singh, Vin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing cases. (1) Ajay Agarwal v. Union of India - 1993 SCC (Criminal) Page 961 (2) P.K. Narayan v. State of Kerala - (1995) SCC 142 (3) State of Maharashtra v. 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 Under Section 120-B of Indian Penal Code 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 In the above cases the Hon'ble Justice has clearly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Vedanti, Baikunth Lal Sharma @ Prem Param Hans Ram Chandra Das, Smt. Vijay Raje Scindia, and Dr. Satish Kumar Nagar for offences Under Section 147/153-A/153-B/295-A/505 of Indian Penal Code read with Section 120-B of Indian Penal Code. 5. Criminal Revision Petitions were filed against the order dated 9th September, 1997. By a judgment dated 12th February, 2001, delivered by the High Court of Allahabad, Lucknow Bench, it was held: (1) Notification dated 8th October, 1993 amending the notification dated 9th September, 1993 was invalid as there was no consultation with the High Court before issuing the said notification. It is important to mention that the Court held that this was a curable legal infirmity. (2) Consequently the Special Court at Lucknow has no jurisdiction to inquire into and to commit to the Court of Sessions FIR No. 198 of 1992 against the aforesaid eight Accused for the three offences stated therein. (3) The impugned order dated 9th September, 1997 for framing charges Under Sections 153-A, 153-B and 505 Indian Penal Code was without jurisdiction and liable to be set aside to this extent. (4) No illegality was committed by the Court below while takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 persons so that the proceedings against the Kar Sewaks could carry on. A revision was filed against the order dated 4th May, 2001 before the High Court which led to the passing of the impugned judgment dated 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o lacks merit. 10. It was further held that if the CBI had any evidence of conspiracy it can file a supplementary charge sheet before the Court at Rae Bareilly which was seized of Crime No. 198 of 1992. Holding that from the very beginning two separate FIRs were filed because of two different places of occurrence and different nature of accusations, the judgment then went on to impugn the CBI's preparing a joint charge-sheet for all 49 FIRs and ultimately found that there is no illegality or impropriety in the impugned order dated 4th May, 2001. The High Court, therefore, by the impugned order, dismissed the revision filed against the said order. 11. Shri Neeraj Kaul, learned Addl. Solicitor General, appearing on behalf of the CBI has argued before us that the impugned judgment has completely misinterpreted the judgment dated 12th February, 2001 and confirmed the dropping of proceedings against 21 Accused persons which could not be done. According to Shri Kaul, an artificial distinction was made by the impugned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfringed 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 Code of Criminal Procedure by which it was clear that an order of transfer from one Special Judge to another within the same State would be covered by the aforesaid provision and could only be done by the High Court of the concerned State in which both the lower Courts are situated. Since Article 142 cannot be used against substantive provisions of law, this would be a violation of Section 407 (1) which permits only the High Court to transfer such a case. The learned senior Counsel referred to a number of judgments setting out that the powers of the Supreme Court Under Article 142 cannot be used against a mandatory substantive provision of law. 13. Shri Kapil Sibal, learned senior Counsel appearing for the Appellants in SLP (Crl.) No. 2705 of 2015 was permitted by us to argue treating the SLP Petitioner as an intervenor. Consequently, he addressed us only on questions of law. According to learned senior Counsel, this Court ought to transfer the case pending at Rae Bareilly to Lucknow as a jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defect noticed in the notification would be cured soon after the delivery of the judgment in which case a joint t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc.--(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. 18. A number of judgments have been cited including the celebrated Supreme Court judgment in Supreme Court Bar Association v. Union of India and Anr. 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case.[para 12] 19. Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution world over. The Latin maxim fiat justitia ruat caelum 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 hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1952, was under consideration. Section 7(1) is reproduced herein below: 7. Cases triable by Special Judges.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), or in any other law the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judges only. 22. The majority judgment of Mukharji, J., in paragraph 24, adverts to this Section and emphasises the fact that only Special Judges are to try certain offences, notwithstanding anything contained in the Code of Criminal Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure, which are set out hereinbelow: 406. Power of Supreme Court to transfer cases and appeals.-- (1) Whenever it is made to appear to the Supreme Court that an order under this Section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. (2) The Supreme Court may act under this Section only on the application of the Attorney-General of India or of a party interested, and every such application 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 exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l stand transferred to the Court of Additional Sessions Judge (Ayodhya Matters) at Lucknow. ii. The Court of Sessions will frame an additional charge Under Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions will frame additional charges Under Section 120-B and the other provisions of the Penal Code mentioned in the joint charge sheet filed by the CBI against Mr. Champat Rai Bansal, Mr. Satish Pradhan, Mr. Dharam Das, Mr. Mahant Nritya Gopal Das, Mr. Mahamadleshwar Jagdish Muni, Mr. Ram Bilas Vadanti, Mr. Vaikunth Lal Sharma @ Prem, and Dr. Satish Chandra Nagar. Mr. Kalyan Singh, being the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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