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'Bahri Masjid' case - Masjid - Demolition of - 49 FIRs lodged - First FIR lodged against lakhs of kar sewaks for offences ulss.153-A, 295, 297, 332, 337, 338, 395 and 397 r/w 120-B !PC - Second FIR lodged against eight persons (out of whom two are dead) ulss.153-A, 153-B, 505 !PC - Further, 46 F!Rs pertaining to cognizable offences and 1 FIR pertaining to non-cognizable offences were also lodged - Notification issued by the State Government to try all the cases, except second FIR at Lucknow by Special Court - Special Court committed the cases to a. Court of Sessions - CBI filed a consolidated chargesheet - State Government amended notification and i11serted seco11d FIR, so that all 49 cases could be tried at Lucknow, however, amendment did not comply with proviso to s.11(1) Cr.P.C, thus, it was struck dow11- CBI.filed suppleme11tary chargesheet against 8 perso11s at Luck11ow - Special Judge, Lucknow held all offe11ces committed i11 course of same transactio11 which warra11ted a joi11t trial - 111 criminal revisio11 petitio11, High ยท Court upheld frami11g of charges i11 48 cases out of 49 cases, except seco11d FIR a11d, further held that notificatio11 by State government seeking amendment( of inserting second FIR and trying 49 cases together) of earlier notification was a curable legal infirmity - CBI requested State government to rectify the notification, which was rejected - Then, CBI filed supplementary chargesheet agai11st eight accused perso11s before Judicial Magistrate, Rae Bareilly - Held: The evidences for all.the offences is almost the same and these offences, therefore, cannot be separated from each other, irrespective of the fact that 49 different F!Rs were lodged - High Court expected rectification of notificatio11 after delivery of its judgment, in which case joint trial would have proceeded, however, i11Stead, supplementary chargesheet was filed by CB/at Rae Bare illy, which completely derailed the joint trial envisaged - Therefore, bestcourse in present case would be to transfer the proceedings (.'>econd FIR) going on at Rae Bareilly to the Sessions Court at Lucknow so that joint trial could proceed. 947 A Code of Criminal Procedure, 197 3 - 'Bahri Masjid' demolition case - Dropping of proceedings - Special Court dropped proceedings against 21 persons, taking view that there were two 8 sets of accused, one-kar sewaks who demolished the Masjid and others who were instigators and same was upheld by the High Court - Held: The dropping of proceedings against 21 accused was totally erroneous - Said accused could not possibly have been discharged, as they were arrayed as accused insofar charge of criminal conspiracy is concerned in the joint chargesheet filed by the CBI - C Charge of criminal conspiracy being already there in joint chargesheet, 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 chargesheet also need to be added - There is no need for D de novo trial inasmuch as the aforesaid charges against all the 21 accused can be added in the ongoing trial. Constitution of India - Arts. 21, 142 - 'Bahri Masjid' demolition case - Transfer of proceedings - Scope of - Respondent Nos. 4, 5 contended that Art.142 cannot be used to transfer E proceedings from Rae Bareilly to Lucknow as proceedings at Rae Bareilly was with Judicial Magistrate and 011 going proceedings at Lucknow were with Session Court - It was pleaded that the right to appeal of respondents from court of judicial magistrate to Sessions court would be taken away, infringing Art.21 ~Held: The fact that one Special Judge happens to be Magistrate, whereas the other F Special Judge has committed the case to a Court of Sessions would not make any difference as, even a right of appeal from a Magistrate to the Sessions Court and from the Session court to the High Court could be taken away under procedure established by law i.e., by virtue of section 407(1) and (8) - Hence, u/s.407 even if 2 tiers of G appeal are done away with, there is no infraction of Art.21 - Further, the fact that High Court has been given power of transfer under Cr.P. C. does not detract from the Supreme Court using constitutional power u/Art.142 - In present case, there is no substantive mandatoryprovision which is infracted by using Art.142 -Maxims - 'Fiat justitia ruat caelum'- Code of Criminal procedure, 1973 - s.407. Constitution of India - Art. 142 - Held: By Article 142, equity has been given precedence over law - But it is not the kind of equity which can disregard mandatory substantive provisions of law when B the Supreme Court issues directions under Art. 142 - While .moulding relief. the Supreme 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 Supreme Court has the power, nay, the duty to do complete justice in a case c when found necessary - Equity. 1Jeliiy/laches - 'Bahri Masjid' demolition case - Said crime which shook the secular fabric of the Constitution of India was committed almost 25 years ago - Accused persons not yet brought to book - Held: Th~re shall be no transfer of the Judge .conducting D trial until the entire trial concludes - Case not to be adjourned on any ground except when the Session Court finds it impossible to carry on the trial for that particular date, reasons to be recorded for the same - CBI to ensure that on every date fixed for evidence, some prosecution witnesses must remain present, so that for want of E witnesses the matter be not adjourned - Sessions Court to complete the trial and deliver the judgment within a period of 2 years from the date of receipt of this judgment. |
