New Delhi, Apr 19 (PTI) BJP stalwarts L K Advani, M M Joshi and Uma Bharti would be prosecuted for serious offence of criminal conspiracy in the politically sensitive 1992 Babri Masjid demolition case, with the Supreme Court today ordering day-to-day trial to be concluded in two years.
The apex court, which dubbed the demolition of the medieval era monument as a "crime" which shook the "secular fabric of the Constitution", allowed CBIs plea on restoration of criminal conspiracy charge against the VVIP accused which will have its political implications particularly against 89- year old Advani, reported to be a front-runner for the post of the President.
However, the top court said Kalyan Singh, who is currently the Governor of Rajasthan and during whose tenure as Chief Minister of Uttar Pradesh the disputed structure was razed, is entitled to immunity under Constitution as long as he remains in gubernatorial position.
"The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor," it said.
The court came down heavily on the CBI for the delay of 25 years in the trial and said, "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."
Issuing a slew of directions, a bench comprising Justices P C Ghose and R F Nariman said "the proceedings viz. Crime No. 198/92 (against Advani and five others) 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."
Besides the three leaders, the accused, against whom the conspiracy charge would now be invoked, are Vinay Katiar, Sadhvi Ritambara, Vishnu Hari Dalmia, who were being tried at Rae Bareilly.
"The court of sessions will frame additional charges under Section 120-B (conspiracy) and the other provisions of the Penal Code mentioned in the joint charge sheet filed by the CBI against Champat Rai Bansal, Satish Pradhan, Dharam Das, Mahant Nritya Gopal Das, Mahamadleshwar Jagdish Muni, Ram Bilas Vadanti, Vaikunth Lal Sharma and Satish Chandra Nagar," Justice Nariman, writing the judgement for the bench, said.
"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 (fresh) 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," it said.
The court also said if trial is adjourned, then it should be fixed on the the next day or a closely proximate date and the reasons for it shall be recorded in writing.
"The sessions court will complete the trial and deliver the judgement within a period of 2 years from the date of receipt of this judgement," it said.
CBI shall ensure that on every date fixed for recording of evidence, some prosecution witnesses must remain present, so that for want of witnesses the matter is not adjourned, it said.
"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," the court said.
Dealing with the issue of protracted trial, the bench said that almost 25 years have gone and yet "we are solemnly reminded that Respondent Nos.4 and 5s (Advani and Joshi) fundamental rights should not be curtailed by any order passed under Article 142."
The apex court justified its decision to invoke Article 142 for transferring the case from a magisterial court to a sessions court in Lucknow and rejected the plea of leaders that they will loose a judicial forum of appeal and said it has wide power to ensure complete justice.
The court, in its 40-page judgement, termed the Allahabad High Courts February 12, 2001 verdict dropping conspiracy charge against Advani and others as "erroneous".
It said the High Court had "clearly and unequivocally" held that a joint charge sheet was filed by CBI on the ground that all the offences were committed in the course of the same transaction to accomplish the alleged conspiracy.
"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 said, adding that the dropping of the conspiracy charge was "clearly erroneous".
The apex court said the decision to have a joint trial in demolition cases at one place was set aside by the High Court on the legal ground that it was not consulted.
The infirmity could have been cured either by the state government or by the CBI by filing an appeal against the verdict, it said.
"This (removal of legal infirmity), 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," it said.
The decision to file supplementary charge sheet against eight accused in a pending case at Rae Bareilly and dropping of charges against 13 other accused, after the high court judgement, has "completely derailed the joint trial envisaged, it said.
This decision of the probe agency resulted in "fractured prosecution going on in two places simultaneously based on a joint charge sheet filed by the CBI itself", it said.
Remedying the technical defect, the apex court said, "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 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."
Out of eight VIP accused, Giriraj Kishore and Vishwa Hindu Parishad leader Ashok Singhal have died during trial and the proceedings against them have been abated.
"In our opinion, there is no need for a de novo trial inasmuch as the (conspiracy) charges against all 21 accused persons can conveniently be added under ...CrPC in the ongoing trial," it said.
It also said 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".
"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 12th February, 2001," it said.
The bench noted that the high court order of 2011 asking for day-to-day trial has been breached and the trial judges have been transferred a number of times.
"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 have been taken by the CBI as well as the other persons.