Alok K. Singh, J.:— The cases mentioned in the caption of this judgment arise out of the same impugned order, therefore, these cases are being decided by a common judgment.

2.The parties are being represented by the learned counsel as mentioned hereinbelow:--

(A) In Criminal Revision No. 217 of 2001.

Party's Name: Represented by:

Revisionist (C.B.I) Sri P. K. Chaubey Advocate, assisted by Sri Bireshwar Nath Adv.

and Sri Arun Kumar Mittal Advocate

Opposite parties:--

(i) Sri Bala Saheb Thackerey Sri G. N. Mishra Advocate,

(ii) Sri Kalyan Singh Sri B. B. Saxena Advocate,

(iii) Sri Satish Pradhan Sri G. N. Mishra Advocate,

(iv) Sri Champat Raj Bansal Sri Kr. Mridul Rakesh Sr. Adv.

(v) Sri Lal Krishna Advani Sri K. K. Sood Advocate,

(vi) Dr. Murli Manohar Joshi Sri Kr. Mridul Rakesh Sr. Adv.

(vii) Ms. Uma Bharti @ Gajra Singh Sri Mahipal Ahluwaliya Adv.

(viii) Sri Vinay Katiyar Sri Kr. Mridul Rakesh Sr. Adv.

(ix) Sri Ashok Singhal Sri Kr. Mridul Rakesh Sr. Adv.

(x) Sri Giriraj Kishore Sri Kr. Mridul Rakesh Sr. Adv.

(xi) Sadhvi Ritambara Sri Kr. Mridul Rakesh Sr. Adv.

(xii) Sri Vishnu Hari Dalmia Sri Kr. Mridul Rakesh Sr. Adv.

(xiii) Sri Mahant Avaidhya Nath Sri Kr. Mridul Rakesh Sr. Adv.

(xiv) Dr. Ram Vilas Vedanti Sri Kr. Mridul Rakesh Sr. Adv.

(xv) Sri Mahant Param Hans

Ram Chandra Das Since dead.

(xvi) Sri Maha Mandleshwar

Jagdish Muni Maharaj Sri Kr. Mridul Rakesh Sr. Adv.

(xvii) Sri Baikunth Lal Sharma

“Prem” Sri Kr. Mridul Rakesh Sr. Adv.

(xviii) Sri Mahant Nritya Gopal Das Sri Kr. Mridul Rakesh Sr. Adv.

(xix) Sri Dharam Das. Sri Kr. Mridul Rakesh Sr. Adv.

(xx) Dr. Satish Nagar Sri Kr. Mridul Rakesh Sr. Adv.

(xxi) Sri Moreshwar Save Sri Subodh Kumar Gupta Adv.

(B) In Criminal Misc. Case No. 793 of 2001.

Sri Ravindra Nath Srivastava

(Petitioner) Sri I. B. Singh Sr. Advocate.

State of U.P Through CBI

(Opposite party) Sri P. K. Chaubey Advocate.

(C) In Writ Petition No. 2666 (MS) of 2005

Thakur Rajeshwari Sita Ramji Sri A. P. Singh “Vatsa” Adv. Trust (Petitioner) Sri Bhupendra Veer Singh Adv.

Opposite parties:--

(i) Director C.B.I Sri P. K. Chaubey, Advocate.

(ii) Sri Bala Saheb Thackerey Sri G. N. Mishra Advocate,

(iii) Sri Kalyan Singh Sri B. B. Saxena Advocate,

(iv) Sri Satish Pradhan Sri G. N. Mishra Advocate,

(v) Sri Champat Raj Bansal Sri Kr. Mridul Rakesh Sr. Adv.

(vi) Sri Lal Krishna Advani Sri K. K. Sood Advocate,

(vii) Dr. Murli Manohar Joshi Sri Kr. Mridul Rakesh Sr. Adv.

(viii) Ms. Uma Bharti @ Gajra Singh Sri Mahipal Ahluwaliya Adv.

(ix) Sri Vinay Katiyar Sri Kr. Mridul Rakesh Sr. Adv.

(x) Sri Ashok Singhal Sri Kr. Mridul Rakesh Sr. Adv.

(xi) Sri Giriraj Kishore Sri Kr. Mridul Rakesh Sr. Adv.

(xii) Sadhvi Ritambara Sri Kr. Mridul Rakesh Sr. Adv.

(xiii) Sri Vishnu Hari Dalmia Sri Kr. Mridul Rakesh Sr. Adv.

(xiv) Sri Mahant Avaidhya Nath Sri Kr. Mridul Rakesh Sr. Adv.

(xv) Dr. Ram Vilas Vedanti Sri Kr. Mridul Rakesh Sr. Adv.

(xvi) Sri Maha Mandleshwar

Jagdish Muni Maharaj Sri Kr. Mridul Rakesh Sr. Adv.

(xvii) Sri Baikunth Lal Sharma

“Prem” Sri Kr. Mridul Rakesh Sr. Adv.

(xviii) Sri Mahant Nritya Gopal Das Sri Kr. Mridul Rakesh Sr. Adv.

(xix) Sri Dharam Das. Sri Kr. Mridul Rakesh Sr. Adv.

(xx) Dr. Satish Nagar Sri Kr. Mridul Rakesh Sr. Adv.

(xxi)Sri Moreshwar Save Sri Subodh Kumar Gupta Adv.

3.This Bench was nominated for hearing of these cases on 18.01.2007 Thereafter on the request made on behalf of learned counsel for the parties the results of Review Petition/Curative Petition pending in the Hon'ble Apex Court were awaited. These petitions were decided by Hon'ble Apex Court on 22.03.2007 and on 12.02.2008 respectively. Thereafter the arguments were heard and judgment was reserved in April, 2010.

4.The controversy involved in these cases pertain to the place of trial of different accused by designated courts at Lucknow/Rae Bareli in respect of cases relating to demolition of disputed structure at Ayodhya, Faizabad, arising out of 49 crime numbers under various sections.

5.The background facts wrapped in brevity are that on 06.12.1992 Sri Priyamwada Nath, Station Officer of Police Station Ram Janam Bhoomi, who was on duty in the proximity of the disputed structure of Ram Janam Bhoomi-Babri Masjid lodged a report under Case Crime No. 197 of 1992 at 5:15 hours at Police Station Ram Janam Bhoomi, against lacs of unknown karsevaks under Sections 395, 397, 332, 337, 338, 295, 297, 153-A I.P.C and Section 7 Crl. Law Amendment Act saying that around 12 - 12.15 O'Clock several unknown Kar Sewaks armed with Phawra, Sambal, Geity, Belcha etc. broke barricade and demolished the disputed structure. After ten minutes of the lodging of the above FIR another report was lodged by Sri Ganga Prasad Tewari, Sub-Inspector, Chowki Incharge of Police Chowki Ram Katha Kunj, who was on duty in the surrounding proximity of Ram Katha Kunj situated at a distance of about 200 meters from the disputed structure, under Case crime No. 198 of 1992 at the same police station under Sections 153-A, 153-B, 505 I.P.C naming 8 persons i.e Ashok Singhal, Giriraj Kishore, Lal Krishna Advani, Murli Manohar Joshi, Vishnu Hari Dalmia, Vinay Katiyar, Sushree Uma Bharti, Sadhvi Ritambhara. Besides these two F.I.Rs, 47 more F.I.Rs were got registered at the same police station against unknown persons in respect of alleged snatching away or breaking/stealing/robbing video cameras etc. and beating media persons. Out of the 47 F.I.Rs, 46 F.I.Rs were in respect of cognizable offences under various case crime numbers of 1992-93 and one N.C.R under Crime No. 57 of 1992 under Sections 323, 427 I.P.C

6.The investigation of Crime No. 197 of 1992 was initially conducted by the civil police followed by CBCID, U.P Thereafter it was transferred to CBI vide notification dated 13.12.1992 The C.B.I Registered it as RC No. 8 (S)/92.SIU-V/SIC-II and conducted the investigation. The case crime no. 198 of 1992, however, remained with the CBCID which investigated the matter and arrested six named persons out of eight and lodged them in the inspection house at Lalitpur. In view of the provisions of Section 11 (1) Cr.P.C the Government of U.P in consultation with the High Court issued a notification dated 16.12.1992 establishing a Special Court of Judicial Magistrate with its place of sitting at Lalitpur to try the case relating to aforesaid crime number. The CBCID ultimately submitted a charge sheet in the aforesaid crime number against all the 8 accused persons under aforesaid Sections on 27.02.1993, whereupon the Special Judicial Magistrate, Lalitpur took cognizance on

01.03.1993 Thereafter the State Government in consultation with the High Court issued another notification shifting the place of sitting from Lalitpur to Rae Bareli vide notification dated 8th July, 1993.

7.Then on the request made by the Government of U.P to the Central Government on 25.08.1993 for entrusting the investigation of case crime no. 198 of 1992 as well as 47 other related cases to the C.B.I, the Central Government entrusted the investigation of the above cases also to the CBI vide notification dated 26.08.1993 The C.B.I re-registered these cases as RC No. 1/1993 and RC Nos. 2/1993 to 49 of 1993. The State of U.P again issued two notifications, dated 08.09.1993 creating and establishing a Special Court of Judicial Magistrate and Additional Sessions Judge, Lucknow for disposal of cases arising out of demolition of disputed structure investigated by the CBI. On the next day i.e on 09.09.1993 the State of U.P issued another notification in view of Section 11 of the Cr.P.C establishing a Special Court sitting at Lucknow to try the matter arising out of crime no. 197 of 1992 and 47 other crime numbers.

8.After entrustment of investigation of Case Crime No. 198 of 1992, the C.B.I sought and was granted permission on 10.09.1993 by the court of Special Judicial Magistrate sitting at Rae Bareli for further investigation. On 17.09.1993 the C.B.I wrote to the Government of Uttar Pradesh requesting that in the interest of justice case Crime No. 198 of 1992 of Police Station Ramjanambhoomi in which further investigation stands accorded to the C.B.I may also be entrusted to the Special Court so created at Lucknow to try and inquire into or commit to the court of sessions all cases relating to Ayodhya demolition incident investigated by the C.B.I On 08.10.1993 the Government of Uttar Pradesh issued an amended notification under the proviso of Sub-Section (1) of Section 11 of the Code of Criminal Procedure read with Section 21 of the General Clauses Act adding Crime No. 198 of 1992 also to the schedule of 48 cases mentioned in the Notification dated 09.09.1993 The

C.B.I then prepared a joint charge sheet dated 04.10.1993 within 25 days. The notification creating a special court at Lucknow was issued after 4 days i.e on 08.10.1993 The CBI filed the joint charge sheet on the same day. The Special Judicial Magistrate Lucknow took cognizance of all the 49 crime numbers including case crime no. 198 of 1992 on 11.10.1993 Earlier the cognizance had been taken on

01.03.1993 by Special Judicial Magistrate, Lalitpur (later shifted to Rae Bareli) on the charge sheet filed by CBCID, U.P in respect of Case Crime No. 198 of 1992 against 8 named accused. On 06.12.1993 the CBI informed the court at Rae Bareli that a joint charge sheet has already been filed before the Special Court of Judicial Magistrate at Lucknow on 08.10.1993 and requested the court to transfer the record to Lucknow. Thereafter the record relating to Crime No. 198 of 1992 was transferred through District Judge Rae Bareli to Special Court of Judicial Magistrate at Lucknow. It was received at Lucknow on 25.01.1994 On 31.01.1994 the CBI moved an application before the Special Judicial Magistrate, Lucknow for clubbing that record with the record already pending in the Court of Special Judicial Magistrate, Lucknow.

9.Thereafter, all the cases pending in the Court of Special Judicial Magistrate, Lucknow were committed to the Court of Sessions on

27.08.1994 Meanwhile with the permission of Special Judicial Magistrate, Lucknow the CBI further investigated the matter and filed another supplementary charge sheet on 11.01.1996 against 9 more accused i.e (i) Mahant Avaidya Nath (ii) Dr. Ram Vilas Vedanti (iii) Dharam Das

(iv) Mahant Nritya Gopal Das (v) Mahamandeleshwar Jagdish Muni (vi) Baikunth Lal Sharma (vii) Paramhans Ram Chandra Das (viii) Smt. Vijayaraje Sindia (ix) Dr. Satish Kumar Nagar. Cases of these accused were also committed to the Court of Sessions. On 09.09.1997, the Additional Sessions Judge (Ayodhya Prakaran), passed an order framing charges against all the 49 accused. Feeling aggrieved 33 accused

challenged this order by filing four separate criminal revisions (Crl. Rev. No. 211 of 1997, 199 of 1997, 201 of 1997 and 255 of 1997) before this Court.

10.All these criminal revisions were clubbed together and decided by this Court on 12.02.2001 by Hon'ble Mr. Justice Jagdish Bhalla (as his Lordship then was) vide judgment reported in 2001 Crl.L.J 1765 (Moreshwar Save and others v. State of U.P and another).

11.The relevant findings on the issues framed by this Court in those criminal revisions are as under:-

(i) Vide notification dated 09.09.1993 under Section 11 Cr.P.C Jurisdiction was given to Judicial Magistrate sitting at Lucknow in respect of case crime no. 197 of 1992 and 47 other cases. Subsequently, vide notification dated 08.10.1993, jurisdiction in respect of case crime no. 198 of 1992 was also given to the aforesaid Court of Judicial Magistrate, Lucknow. But this subsequent notification dated 08.10.1993 was found to be illegal and without jurisdiction and violative of the provisions of Section 11 Cr.P.C as well as Section 21 of the General Clauses Act for want of consultation with the High Court. As such the order of cognizance and committal of the accused relating to case crime no. 198 of 1992 under Sections 153-A, 153-B and 505 IPC passed by the Special Judicial Magistrate, Lucknow was found to be illegal. Consequently, the proceedings pending in the Court of Special Judge (Ayodhya Prakaran), sitting at Lucknow, including impugned order of framing of charges in respect of accused of case crime no. 198 of 1992 were found to be illegal and without jurisdiction. However, it was observed that the mistake pertaining to issuance of notification dated 08.10.1993 was curable and it was left open to the State Government to rectify its mistake by issuing a fresh notification after consultation with the High Court in accordance with law.

(ii) In respect of another issue, it was found by this Court that all though there is no provision in the Cr.P.C with regard to the joinder of charge sheets by the prosecution agency but at the same time there is no prohibition for the same.

(iii) Finally, therefore, in respect of impugned order dated 09.09.1997 it was held that as far as framing of charges against the accused/revisionist there was no infirmity in the order with respect to the cases referred to in the notification dated 09.09.1993 But in respect of Case Crime No. 198 of 1992 it was held that the Courts below committed jurisdictional error as they did not have any jurisdiction because of the relevant notification investing jurisdiction upon Lucknow Courts was issued without consultation with the High Court as provided in the Code of Criminal Procedure and General Clauses Act. Therefore, the impugned order dated 09.09.1997 pertaining to case crime no. 198 of 1992 under Sections 153-A, 153-B, 505 I.P.C was set aside.

12.The above judgment of this Court was challenged in public interest by filing Special Leave Petition before Hon'ble the Apex Court by one Mohd. Aslam alias Bhure. The CBI or any of the accused did not challenge it. The Hon'ble Apex Court, however, upheld the decision of this Court and dismissed the SLP on 29.11.2002 Then a review petition was moved which too was dismissed on 22.03.2007 Then a Curative Petition was filed which was ultimately dismissed on 12.02.2008 It is also worthwhile to mention here that the State Government did not issue any revised notification after making rectification though it was left open to the Government.

13.On the other hand in the light of the aforesaid judgment of this Court, several accused moved three applications before the Special Judge (Ayodhya Prakaran), Lucknow in S.T Nos. 344 of 1994 and 749 of 1996 for dropping proceedings against them.

14.First application no. 715 B was moved by Sri R.N Srivastava the then District Magistrate and Sri D.B Rai the then Superintendent of Police saying that the proceedings be dropped against them on the ground that they have been charge-sheeted under case crime no. 198 of 1992. Another application no. 718 B was also moved with the same prayer by accused Acharya Dharmendra Dev, Mahant Avaidya Nath, Dr. Ram Vilas Vedanti, Dharam Das, Mahant Nritya Gopal Das, Mahamandaleshwar Jagdish Muni, Maharaja Param Hans Ram Chandra Das , Champat Ram Bansal, Lallu Singh, Brij Bhushan Saran Singh, Maharaja Swami Sakshiji, Baikunth Lal Sharma (Prem), Navin Bhai Shukla, Prakash Sharma, Vijay Bahadur Singh, Har Govind Singh, Jaibhan Singh Pavaiya, Dharmendra Singh Gujjar, Ram Narain Das, Kamlesh Tripathi @ Sant, Dubey Vinay Kumar Rai, Gandhi Yadav, Ramesh Pratap Singh.

15.Similarly S/Sri L.K Advani, Dr. Murli Manohar Joshi, Ashok Singhal, Sushree Uma Bharti, Sadhvi Ritambhara, Vinay Katiyar, Vishnu Hari Dalmia and Acharya Giriraj Kishore also made same prayer by moving separate application no. 719 B. The C.B.I did not file any written objection against these applications although opposed it orally.

16.After hearing the arguments on behalf of the parties, the learned Lower court decided all the three applications by a common order dated

04.05.2001 which has been impugned before this Court in all the three cases mentioned in the caption of this judgment.

17.The learned Lower court has made the following significant observations in the impugned order dated 04.05.2001:--

(A) That from perusal of the F.I.R of Crime No. 197 of 1992 it transpires that 23 accused, namely, Pawan Kumar Pandey, Brij Bhushan Saran Singh, Jai Bhagwan Goel, Vinod Kumar Vats, Ram Chandra Khatri, Sudhir Kakkar, Amar Nath Goel, Santosh Dubey, Prakash Sharma, Jai Bhan Singh Pavaia, Dharmendra Singh Gujjar, Ram Narain Das, Vinay Kumar Rai, Lallu Singh, Ramji Gupta, Om Prakash Pandey, Kamlesh Tripathi, Gandhi Yadav, Har Govind Singh, Vijay Bahadur Singh, Navin Bhai Shukla, Ramesh Pratap Singh, Acharya Dharmendra Dev are covered by the aforesaid report because there are clear accusations against them under Sections 332, 338, 201 read with Sections 149, 395 and 120-B I.P.C

(B) That accused (1) R.N Srivastava, the then District Magistrate (who has filed Crl. Misc. Case No. 793 of 2001 under Section 482 Cr.P.C) and (2) D.B Rai, the then Superintendent of Police, Faizabad are also covered by Case Crime No. 197 of 1992 and other case crime numbers which were got registered by media persons because of the accusations made against them pertain to Sections 120-B I.P.C, 153 A, 295, 295-A, 505, 201, I.P.C read with Section 114 I.P.C It also observed that Sri R.N Srivastava the then District Magistrate and Sri D.B Rai, the then Superintendent of Police, were posted in Faizabad at the relevant time and both the public servants had every knowledge about the actual Karseva and about the undertaking filed by the then Chief Minister Kalyan Singh before the Hon'ble Supreme Court. In spite of that they failed to take effective measures for about five hours and rather facilitated the act of demolition by sending back three Battalions of para military force on 06.12.1992 at 1:45 P.M

(C) That besides aforesaid 25 accused (23+2), (1) Smt. Vijay Raje Sindia has unfortunately died on account of which the case against her has abated. Similarly one accused (2) Laxmi Narain Das Maha Tyagi has separately obtained stay order from the Hon'ble High Court. Therefore, the trial court was left with remaining 22 accused out of the total 49 (49 - 27 = 22).

(D) That against Sarvashri Ashok Singhal, L.K Advani, Dr. Murli Manohar Joshi, Sushree Uma Bharti, Sadhvi Ritambhara, Vinay Katiyar, Vishnu Hari Dalmia and Acharya Giriraj Kishore, total 8 named accused of the Case Crime No. 198 of 1992, prior to the filing of the charge sheet by CBI, a charge sheet had already been filed by CBCID, after completion of the investigation and cognizance had already been taken by the Special Judicial Magistrate, Lalitpur/Rae Bareli under Sections 153-A, 153-B, 505 IPC. In that charge sheet in respect of those persons who were not named it was mentioned that investigation against them was going on. Similarly in the first information report of Crime No. 198 of 1992 it was mentioned that the Sub-Inspector (First Informant) reached at about 10 A.M at Ram Katha Kunj where Sri Ashok Singhal (General Secretary, Vishwa Hindu Parishad), Sri Giriraj Kishore (Joint Secretary), Lal Krishna Advani, Murli Manohar Joshi, Sri Vishnuhari Dalmia (all members of Parliament belonging to BJP) and Co-ordinator of Bajranj Dal Sri Vinay Katiyar, Uma Bharti, Sadhvi Ritambara etc. (also other orators) were sitting at the dias and were giving emotional lectures instigating the Karsevaks. Taking a cue from the above, the learned Lower court has observed that it meant that few other persons other than the aforesaid 8 named persons were also present there on the dias. That is why the CBI sought permission for making further investigation under Case Crime No. 198 of 1992 and after seeking permission made further investigation and submitted a supplementary charge sheet against 9 accused persons, namely, Mahant Avaidya Nath, Dr. Ram Vilas Vedanti, Dharam Das, Mahant Nritya Gopal Das, Mahamandaleshwar Jagdish Muni, Baikunth Lal Sharma, Param Hans Ram Chandra Das, Smt. Vijay Raje Sindia (since dead)and Dr. Satish Kumar Nagar who were present on the dias at ‘Ram Katha Kunj’.

(E) That Smt. Vijay Raje Sindia has died. Thus, besides 8 initially named accused the aforesaid 8 more accused (against whom supplementary charge sheet was filed) there were total 16 accused against whom almost similar accusations have been made. Almost similar

allegations of instigation etc. have also been made against Bala Saheb Thakeray, Moreshwar Save, Satish Pradhan and Kalyan Singh, the then Chief Minister, U.P etc. though they were not physically present on the spot.

(F) That Crime No. 197 of 1992 was in respect of lacs of Kar Sewaks who started demolishing the structure after destroying the barricading. Earlier they had formed unlawful assembly with a view to demolish the structure. That is why when after lodging the first F.I.R against unknown Kar Sewaks it was found that no report had been lodged against the persons who were sitting on the dias at ‘Ram Katha Kunj’ and were instigating, the second report under Crime No. 198 of 1992 was lodged under Sections 153-A, 153-B and 505 I.P.C Thus it was found that these were two separate and distinct matters. In the first crime number those persons were involved who actually demolished the structure and government articles and property and took away those things. In the second crime number were those who were instigators and who committed offences mentioned in the F.I.R under case Crime No. 198 of 1992.

(G) Lastly it was observed by the learned court below that in the light of the judgment of this Court in the aforesaid Criminal Revisions the order dated 09.09.1997 passed by learned predecessor in respect of Crime No. 198 of 1992 was found to be illegal and though the Hon'ble Court gave an opportunity to the State Government to rectify the mistake and issue a fresh notification, if it so desired, this mistake has not been rectified. Therefore, it was found that no proceedings can be made in respect of Crime No. 198 of 1992. As regards remaining accused pertaining to Crime No. 197 of 1992 and other 47 crime numbers the order passed by his learned predecessor was confirmed by this Court. In such circumstances there were two options before the learned court below:--

(i) Unless the error is rectified by the Government as indicated by the Hon'ble High Court, the entire matter may be kept pending for indefinite period.

Or

(ii) The case may be proceeded against the remaining accused pertaining to Crime No. 197 of 1992 and other crime

numbers.

(H) While considering the aforesaid two options, the learned court also

kept in mind the caution for speedy trial accorded by this Court as contained in the following paragraphs of the aforesaid judgment of this Court dated 12.02.2001 (supra):--

“106. .................. The slow motion becomes much slower motion when politically powerful or rich and influential persons figure as accused.

FIRs are quashed. Charges are quashed. Interlocutory orders are interfered with. At every step, there will be revisions and applications for quashing and writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all the interruptions, the time would have taken its own toll: the witnesses are won over; evidence disappears; the prosecution loses interest - the result is in all too familiar one.

107. The concept of the joint charge sheet and joint trial has been adopted by the prosecution and accepted by the Courts below. I am afraid this may not add to the slow motion becoming slower which is evident from the fact that from the last eight years the case is moving at a snail's pace. I pondered over the matter and it occurred to my mind that the above circumstances can further delay the completion of the trial. In the light of the above I am of the considered opinion that the trial court should ensure speedy trial and in the process take necessary steps.”

18.Finally the learned court below found it expedient to drop the proceedings against the accused persons pertaining to Crime No. 198 of 1992, whose names have been mentioned hereinabove, and to proceed against the remaining accused. Accordingly it dropped the proceedings against 21 aforementioned accused pertaining to Crime No. 198 of 1992 and proceeded against the remaining 26 accused pertaining to Crime No. 197 of 1992 and other crime numbers. Accordingly Application Nos. 715-B, 718-B and 719-B were disposed of vide impugned order dated 04.05.2001

19.The aforesaid order has been challenged by the CBI by filing Criminal Revision No. 217 of 2001 before this Court wherein the following prayers have been made:--

(I) To set aside the order dated 04.05.2001 passed by the Special Judge (Ayodhya Prakaran), Lucknow.

(2) To direct the said Trial Court to proceed against all such 47 accused persons and thus adhere to the proceedings in accordance with the provisions of Section 228 (1) (b) Cr.P.C And thereafter try all the 47 accused in the 48 cases namely Crime No. 197/92 and 47 other cases relating to assault on media persons as earlier ordered by the trial Court vide its order dated 09.09.1997 and so upheld by this Hon'ble Court.

(3) Pending decision of the present Revision Petition the proceedings in the Sessions Trial No. 344/94 (State v. Bala Saheb Thackeray & 39 others) and Sessions Trial No. 749/96 (State v. Mahant Avaidya Nath & 8 others) may kindly be ordered to be stayed.

20.Besides above criminal revision, Sri Ravindra Nath Srivastava I.A.S (retired) the then District Magistrate has also challenged the same impugned order of the lower court dated 04.05.2001 by filing a separate petition under Section 482 Cr.P.C saying that his application has been wrongly rejected and that the proceedings of trial cannot continue in the shape it has been presented on the basis of a joint charge sheet filed in connection with 49 distinct offences and that the petitioner has been wrongly named in the charge sheet filed in connection with Crime No. 197 of 1992 and 47 other offences registered on the basis of FIRs of media persons.

21.Lastly Thakur Rajeshwari Sita Ram Ji Trust has filed a Writ Petition No. 2666 (MS) of 2005 against the Director of CBI and 20 accused persons including Bala Saheb Thakrey etc. under Article 226 of the Constitution of India seeking a writ of certiorari quashing the same impugned order dated 04.05.2001

22.First of all I intend to take up the Criminal Revision No. 217 of 2001. It has been contended on behalf of the revisionist that the Special Judge (Ayodhya Prakaran) has grossly erred in passing the order for dropping the proceedings against 21 accused persons because it was against the judgment of the High Court dated 12.02.2001 passed in Criminal Revision Nos. 199 of 1997, 201 of 1997, 211 of 1997 and 25 of 1997, (reported in 2001 Cri. L. J. 1765) inasmuch as he entered into the process of most arbitrarily weighing and sifting and analyzing the probative value of the evidence collected during investigation in respect of all the 49 accused with reference to each of the 49 FIRs which he ought not to have legally deduced in a case of criminal conspiracy and commission of various offences which formed part of the same transaction. It has been further said that though this Court has held that the notification dated 08.10.1993 in respect of Crime No. 198 of 1992, under Sections 153-A, 153-B and 505 IPC was defective and, therefore, the cognizance, committal and framing of charges in respect of the said crime number was illegal and without jurisdiction, but if such observation at its maximum be construed to be against the interest of the prosecution case, still the trial court could have at best kept in abeyance the proceedings against only 8 named accused persons of case Crime No. 198 of 1992 and that too only in respect of Sections 153-A, 153-B and 505 IPC till rectification of the defect by the State Government. The attention of this Court has also been drawn towards paragraph 83 of the judgment (supra) wherein this Court has observed that “in view of the above discussion I am of the opinion that no illegality has been committed by the courts below while taking cognizance of a joint/consolidated charge sheet on the ground that all the offences were committed in the course of the same transaction and to accomplish the conspiracy; that the evidence for all the offences is almost the same and therefore these offences cannot be separated from each other irrespective of the fact that 49 different FIRs were lodged on the basis of which 49 criminal cases were registered by the police.” Learned counsel has, therefore, submitted that the learned lower court committed gross error in dropping of the proceedings against 13 more accused besides earlier 8 accused treating them to be within the ambit of Crime No. 198 of 1992. It has also been submitted that the learned lower court also did not give any convincing reasons for coming to the aforesaid conclusion in respect of Sarvashri Bala Saheb Thackerey, Moreshwar Save, Champat Rai Bansal, Satish Pradhan and Kalyan Singh. Learned counsel for the CBI has emphasized that the learned

lower court has in fact reviewed the order dated 09.09.1997 passed by learned predecessor court which he could not have done.

23.From the other side it has been argued that the impugned order passed by the learned lower court was in furtherance of the order of this Court dated 12.02.2001 (supra). It does not suffer from any illegality or irregularity. That the findings arrived at by the learned lower court were based mainly on the ground that besides 8 accused, namely (1) Sri Lal Krishna Advani, (2) Sri Murli Manohar Joshi, (3) Sadhvi Ritambara, (4) Sri Giriraj Kishore, (5) Sri Ashok Singhal, (6) Sri Vishnu Hari Dalmia, (7) Sri Vinay Katiyar and (8) Sushri Uma Bharti, who were named in the FIR under case Crime No. 198 of 1992, on the basis of material collected by the CBI during further investigation it transpired that few more accused, namely (1) Sri Bala Saheb Thackerey (2) Sri Kalyan Singh, (3) Sri Satish Pradhan (these three were i9n fact not physically present),

(4) Sri Champat Rai, (5) Mahant Avaidya Nath, (6) Dr. Ram Vilas Vedanti, (7) Sri Paramhans Ramchandra Das (since dead), (8) Sri Maha Mandleshwar Jagdish Muni Maharaj, (9) Sri Baikunth Lal Sharma “Prem” , (10) Sri Mahant Nritya Gopal Das, (11) Sri Dharam Das, (12) Dr. Satish Nagar and (13) Moreshwar Save were also sharing the dias at ‘Ram Katha Kunj’ where these leaders were holding meeting and giving lectures on public address system. This place was at a distance of about 200 meters from the place where the demolition of the disputed structure is said to had taken place. It has also been pointed out that the first FIR under case Crime No. 197 of 1992 was lodged against lacs of unknown Kar Sewaks who were allegedly involved in demolition of the disputed structure. After some time the second FIR under case Crime No. 198 of 1992 was lodged naming 8 aforesaid accused and the place of occurrence shown in this FIR was the aforesaid Ram Katha Kunj where these leaders were holding meeting on a dias situated on the first floor of the building. Besides these two FIRs in due course of time 47 more FIRs were lodged by media persons and others making accusations in respect of snatching of cameras and damaging and taking away government property and material. These FIRs were also against unknown persons and the place of occurrence in respect of these FIRs was also in and around the disputed structure. Therefore, it was submitted that the learned court below has rightly treated above 21 persons to be accused under case Crime No. 198 of 1992 and accordingly dropped the proceedings against them for want of jurisdiction in absence of a valid notification. On the other hand in respect of remaining 26 persons, namely (1) Sri Pawan Kumar Pandey, (2) Sri Brij Bhushan Sharan Singh, (3) Sri Jai Bhagwan Goel, (4) Sri Vinod Kumar Vatsa, (5) Sri Ram Chandra Khatri, (6) Sri Sudhir Kakkar, (7) Sri Amar Nath Goel, (8) Sri Santosh Dubey, (9) Sri Prakash Sharma, (10) Sri Jai Bhan Singh, (11) Sri Dharmendra Singh Gurjar, (12) Sri Ram Narayan Das, (13) Sri Vinay Kumar Rai, (14) Sri Lallu Singh, (15) Sri Ram Ji Gupta, (16) Sri Om Prakash Pandey, (17) Sri Kamlesh Tripathi, (18) Sri Gandhi Yadav, (19) Sri Har Govind Singh, (20) Sri Vijay Bahadur Singh, (21) Sri Naveen Bhai Shukla, (22) Sri Ramesh Pratap Singh, (23) Sri Acharya Dharmendra Dev, (24) Sri Ravindra Nath Srivastava, (25) Sri Devendra Bahadur Rai and (26) Sri Maharaj Swami Sakshi, the learned lower court rightly decided to proceed under Section 228 (2) Cr.P.C as they were covered by the FIR of case Crime No. 197 of 1992 and remaining 47 FIRs by media persons, it has been submitted. In respect of paragraph 83 of the judgment of this Court dated 12.02.2001 (supra) it has been submitted that instead of reading it in peace meal, it will have to be read along with whole judgment and particularly with paragraphs 105 and 108 wherein specific and final findings have been given to the effect that the courts below (the learned Magisterial court as well as learned Special Judge, Ayodhya Prakaran) have committed jurisdictional error as far as Crime No. 198 of 1992 is concerned.

24.Before entering into merits of the case first of all certain admitted facts/points may be mentioned:--

(i) In all 49 FIRs were lodged in respect of the incident in question which took place on 06.12.1992 at Ayodhya, Uttar Pradesh.

(ii) The first FIR under case Crime No. 197 of 1992 was lodged at 17.15 hours against lacs of unknown Kar Sewaks under Sections 395, 397, 332, 337, 338, 295, 297, 153-A IPC and Section 7 Criminal Law Amendment Act saying that around 12.00 - 12.15 O'Clock several unknown Kar Sewaks armed with Phawra, Sabhal, Geity and Belcha etc. broke the barricades and demolished the structure. This FIR was lodged by Sub-Inspector of Police Station Ram Janam Bhoomi who was on duty in the proximity of the disputed structure. Then after a gap of 10 minutes another FIR under case Crime No. 198 of 1992 was lodged by a Sub-Inspector, Chowki Incharge Ram Katha Kunj who was on duty in the surrounding proximity of Ram Katha Kunj situated at a distance of 200 meters from the disputed structure, under Section 153-A, 153-B, 505 IPC against 8 named persons i.e Lal Krishna Advani and 7 others, as mentioned hereinabove.

(iii) Besides these two FIRs 47 more FIRs were subsequently registered at the same police station under various crime numbers of the year 1992 and 1993. These FIRs were in respect of alleged snatching away, breaking, stealing and robbing video cameras etc. and beating the media persons.

(iv) In respect of case Crime No. 198 of 1992 a notification dated 16.12.1992 was issued by the State Government of Uttar Pradesh in consultation with the High Court establishing a court of Special Judicial Magistrate with its place of sitting at Lalitpur and a charge sheet under this Crime No. 198 of 1992 was filed against all the 8 named accused persons, under Sections 153-A, 153-B and 505 IPC.

(v) Then vide notification dated 08.07.1993 the place of sitting was shifted from Lalitpur to Rae Bareli where presently the trial is going on and after framing of charges under Sections 147, 153-A, 153-B, 505 read with Section 149 IPC and few witnesses have also been examined.

(vi) On the other hand by issuing two notifications dated 08.09.1993 and 09.09.1993 the State Government established a Special Court sitting at Lucknow to try the matters arising out of Crime No. 197 of 1992 and 47 other crime numbers.

(vii)Then the CBI requested the Government of Uttar Pradesh on 17.09.1993 to entrust the Special Courts at Lucknow the trial of case Crime No. 198 of 1992 also and the Government promptly issued amended notification on 08.10.1993 by adding Crime No. 198 of 1992 also to the schedule of 48 cases already mentioned in the earlier notification dated 09.09.1993

(viii)Meanwhile the CBI had already prepared a joint charge sheet dated 04.10.1993 in respect of all the crime numbers but it waited for the notification dated 08.10.1993 to be issued and immediately after issuance of the notification it filed the joint charge sheet before the Magisterial Court at Lucknow.

(ix)After filing of the joint charge sheet the learned Magistrate concerned took cognizance within 3 days i.e on 11.10.1993 In this charge sheet besides 8 aforesaid accused, 32 more accused were added.

(x) On the other hand, after issuance of amended notification the CBI informed about it to the court at Rae Bareli which transferred to the court at Lucknow, the entire record of the case pending before it relating to case Crime No. 198 of 1992. It was received here on 25.01.1994

(xi) As some of the sections were triable by the court of Sessions the learned Special Judicial Magistrate committed the case to the court of Additional Sessions Judge (Ayodhya Prakaran).

(xii) On 09.09.1997 the Additional Sessions Judge (Ayodhya Prakaran) framed charges against all the 49 accused persons.

(xiii) Feeling aggrieved 33 accused persons challenged this order by filing four criminal revisions before this Court. Those criminal revisions were decided by a common judgment of this Court dated 12.02.2001 reported in 2001 Cri. L. J. 1765.

(xiv) In the aforesaid judgment it was held that the notification dated 08.10.1993 by means of which case Crime No. 198 of 1992 was also added, was illegal and without jurisdiction for want of consultation with the High Court. However, it was left open for the State Government to rectify this mistake by issuing a fresh notification after due consultation with the High Court in accordance with law. But concededly till date the State Government has not issued any such notification.

(xv) The CBI did not challenge the aforesaid judgment of this Court dated 12.02.2001 before the Apex Court. Instead one Mohammad Aslam alias Bhure challenged it by filing a Special Leave Petition in public interest. The Hon'ble Apex Court, however, upheld the decision of this Court and dismissed the S.L.P On 29.11.2002 While dismissing the S.L.P the Hon'ble Apex Court also observed that in respect of case Crime No. 198 of 1992 though the State Government has not issued the revised notification for rectifying the mistake, a special designated Court of Magistrate at Rae Bareli is already available for the purpose. Thereafter the record of the case pertaining to Crime No. 198 of 1992

was sent back from the court at Lucknow to the concerned court at Rae Bareli. The CBI also filed a supplementary charge sheet against those very 8 accused persons on 30.05.2003 under Sections 147, 153-A, 153-B and 505 read with Section 149 of the Indian Penal Code.

(xvi) The charges were accordingly framed under the aforesaid sections and as said before now the trial is in progress at Rae Bareli wherein few prosecution witnesses have also been examined.

(xvii) On the other hand in the light of the aforesaid judgment of this Court dated 12.02.2001 three applications, as mentioned hereinbefore, were moved by 3 sets of accused persons claiming their discharge from the proceedings pending in the court at Lucknow saying that they were covered under case Crime No. 198 of 1992.

(xviii) The learned Special Judge (Ayodhya Prakaran) Lucknow reached to the conclusion that besides 8 named accused persons in case Crime No. 198 of 1992, 13 more accused as mentioned hereinabove in para 23 of this judgment come within the ambit of case Crime No. 198 of 1992 because they were also present on the dias at Ram Katha Kunj and, therefore, allowed their application and dropped proceedings against them pending in Lucknow Court, vide impugned order dated 04.05.2001 but rejected the applications moved by rest of the accused.

(xix) Feeling aggrieved by the order the CBI has filed this Criminal Revision No. 217 of 2001 against all the 21 accused.

25.I have thoroughly scrutinized the impugned order passed by learned lower court. Broadly speaking the learned lower court has reached to the final conclusion on the basis that there were two different places of occurrence, where two classes of accused were present, i.e the leaders who were on the dias at Ram Katha Kunj who formed one class and lacs of unknown Kar Sewaks who were in and around the disputed structure. The first place of occurrence was the place in and around the disputed structure. The second place of occurrence was Ram Katha Kunj situated at a distance of about 200 meters from disputed structure. The nature of accusations were also different. In respect of first place of occurrence against lacs of unknown Kar Sewaks the accusations are in respect of their involvement in demolition of disputed structure, voluntarily causing hurt to deter public servants from their duty (Section 332 IPC), causing grievous hurt endangering human life (Section 338 IPC), causing disappearance of evidence of an offence committed (Section 201 IPC), committing dacoity in respect of cameras

of media persons and archeological stones of historical importance etc. (Section 395 IPC), doing criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards (Section 120-B IPC). On the other hand 21 persons who were all prominent leaders formed a separate class. They were present on the dias at Ram Katha Kunj on the first floor of the building, holding meeting, giving speeches and raising slogans etc. This was the second place of occurrence which was at a distance of about 200 meters from the first place of occurrence. The accusations against them are under Section 153-A IPC (promoting enmity between classes), 153-B IPC (imputations, assertions prejudicial to national integration), 505 IPC (false statement, rumour etc, circulated with intent to cause mutiny or offence against the public peace), 147 IPC (rioting i.e using force or violence by unlawful assembly in prosecution of common object) and 149 IPC (if an offence committed by any member of an unlawful assembly in furtherance of common object, then every other member of such assembly shall be guilty of the offence). That is why there were two separate main FIRs, i.e one under Crime No. 197 of 1992 and the other under Crime No. 198 of 1992. Both these main FIRs were lodged by two different police officials who were on duty in and around the aforesaid two different places of occurrence. The State Government also issued two separate notifications in respect of these two classes of crime numbers. The one class consisted of crime no. 197 of 1992 in respect of lacs of unknown Kar Sewaks and 47 other crime numbers pertaining to various FIRs lodged by media persons and the other comprised case Crime No. 198 of 1992 in respect of leaders present on the dias at Ram Katha Kunj. .

26.Besides the two main classes of accused, there were also two responsible government servants i.e the then District Magistrate and the then Superintendent of Police Faizabad, namely Sri R. N. Srivastava and Sri D. B. Rai (since dead). They have been found to be covered under Crime No. 197 of 1992 and other FIRs under various crime numbers filed by the media persons. In respect of them accusations have been found in respect of doing criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards (Section 120-B IPC), promoting enmity between classes (Section 153-A IPC), destroying, damaging or defiling a place of worship or sacred object with intent to insult the religion of any class of persons (Section 295 IPC), maliciously insulting the religion or the religious beliefs of any class (Section 295-A IPC), false statement, rumour etc. circulated with intent to cause mutiny or offence against the public peace (Section 505 IPC), causing disappearance of evidence of an offence committed (Section 201 IPC), abetment of any offence, if abettor is present when offence is committed (Section 114 IPC). In respect of both of them the learned lower court has also observed and rightly so that both being main public servants who had knowledge about actual proposed Kar Sewa and also about assurance given by Sri Kalyan Singh, the then Chief Minister of Uttar Pradesh before the Hon'ble Apex Court, it was their bounded duty to have stopped the disputed structure from being demolished. Both these public servants were also knowing about coming of lacs of Kar Sewaks and determination of various religious and political associations/parties in respect of demolition of disputed structure, even then they did not take any effective proceedings. Not only this they also minimized the police force near the disputed structure so that it may be demolished easily. Sri R. N. Srivastava had returned three battalions of paramilitary forces on 06.12.1992 at 1.45 P.M and though he was responsible for the security of the disputed structure he did not take any steps to save it during the entire period of five hours when it was being demolished. He also did not take any steps for the security of media persons and, therefore, the accusations against both the officers were found to be covered under case Crime No. 197 of 1992 and other FIRs under other crime numbers lodged by media persons.

27.The submission on behalf of the CBI is that even after judgment of this Court dated 12.02.2001 holding that the courts at Lucknow had no jurisdiction in respect of Crime No. 198 of 1992 the learned lower court could not have discharged the aforesaid 21 accused persons out of the total 47 accused persons as it would amount to reviewing the order dated 09.09.1997 passed by learned predecessor who had already framed charges under relevant sections against all the 47 persons. This submission cannot be accepted because vide aforesaid judgment dated

12.02.2001 (supra), this Court has already set aside the order dated 09.09.1997 passed by the Special Judge Ayodhya Prakaran, Lucknow, framing charges so far it relates to Crime No. 198 of 1992 mentioned in Notification dated 08.10.1993 Therefore, that part of order dated

09.09.1997 has already become non-est. Hence where is the question to review it. The position was rather other way round. It would rather mean defiance of this Court's judgment dated 12.02.2001 (supra) if it is not brought to its logical end. It may be analyzed from yet another angle. The learned lower court did have jurisdiction in respect of Crime No. 197 of 1992 then why it could not have segregated the accused who were not covered under Crime No. 197 of 1992. Hence, this submission made on behalf of CBI, being in the teeth of the aforesaid judgment of this Court dated 12.02.2001 cannot be accepted.

28.Another submission is that even if there was any embargo it was only in respect of three Section 153-A, 153-B and 505 IPC. In this regard, at the cost of repetition it may be mentioned here that the CBI even did not challenge the aforesaid judgment dated 12.02.2001 passed by this Court before the Apex Court. After dismissal of the SLP filed in the nature of public interest litigation by one Bhoore in the year 2002 the CBI rather itself segregated the material pertaining to Crime No. 198 of 1992 and selectively relying upon forty nine witnesses and eight documents mentioned in support thereof filed a supplementary charge sheet in May, 2003 against above 8 leaders i.e Sri Advani and 7 others, and invoked only aforesaid sections and two added sections i.e 147 and 149 of the Indian Penal Code. All these offences are triable by Magistrate and during the arguments it was conceded that the Magisterial Court at Rae Bareli after taking cognizance of the aforesaid supplementary charge sheet has already framed charges under Sections 147, 153-A, 153-B and 505 read with Section 149 IPC and is now proceeding with the trial. Though the CBI has filed the present criminal revision against 21 accused including above 8 leaders but subsequently it has probably given up its stand in respect of at least above 8 leaders against whom it has filed a supplementary charge sheet at Rae Bareli soon after the decision of the SLP. The submission made on behalf of the CBI in respect of above five sections of the Indian Penal Code therefore appears to be misconceived. As far as alleged embargo is concerned as has been put up during arguments on behalf of CBI, in the context of judgment dated 12.02.2001 (supra), it is in respect of whole Crime No. 198 of 1992 and not confined to three sections

only i.e 153-A, 153-B and 505 IPC. The accused of case Crime No. 198 of 1992 cannot be tried at all at Lucknow for want of jurisdiction, as already discussed. The CBI at no point of time, either during the trial at Rae Bareli or in Criminal Revision No. 482 of 2003 and other revisions filed before this court earlier and disposed of vide judgment dated 06.07.2005 passed by Hon'ble Mr. Justice Y. R. Tripathi (as his Lordship then was) ever said that offence of criminal conspiracy under Section 120-B IPC was also made out against the aforesaid 8 or 12, total 20 accused as is now being submitted. Had there been any substance in it the CBI would have certainly included the aforesaid or any other sections of the IPC in the supplementary charge sheet filed by it before the court at Rae Bareli after the decision of the S.L.P by the Hon'ble Apex Court or it could have moved an application to amend the charges, which concededly has not been done till date. In this regard it is also worthwhile to mention that vide impugned order dated 04.05.2001 the Additional Sessions Judge (Ayodhya Prakaran) has not in any manner held any where, even remotely, as to for what offences the 8 or 20 segregated accused of case Crime No. 198 of 1992 are to be sent for trial at Rae Bareli. In fact, in furtherance of this Court's judgment dated 12.02.2001 he has simply discharged them in respect of aforesaid case Crime No. 198 of 1992 for want of jurisdiction. Therefore, it was open for the CBI both legally and also factually to have filed a supplementary charge sheet under any other offence, if the same were made out, particularly the offence of criminal conspiracy under Section 120-B IPC regarding which only a fragile argument was made on behalf of the CBI during arguments. Therefore, this submission is found to be devoid of any substance.

29.Another submission on behalf of the CBI is that this Court itself has vindicated in para 83 of its judgment about criminal conspiracy against all the accused persons. But only regret can be expressed for not accepting this submission also. This judgment has to be read as a whole. If paragraphs 83, 105 and 108 are read together this argument itself falls to ground. Paragraphs 105 and 108 are reproduced hereinbelow:-- “105. This Court while keeping in mind the above considerations has earnestly considered and examined the impugned order dated 9th Sept. 1997 passed by the

trial Court for framing charges against the accused revisionists and does not find any infirmity with respect to the cases referred to in the Schedule of Notification No. 4421.VII-Nyaya-2-793/87 dated 9th Sept. 1993. Further the Courts below committed jurisdictional error as far as case Crime No. 198 of 1992 is concerned which is curable. In the light of the above no interference is warranted in the impugned order of the trial Court as far as the cases referred to in the schedule of Notification No. 4421.VII-Nyaya-2-793/87 dated 9th Sept. 1993 are concerned.” “108. In the premise the impugned order dated 9th Sept. 1997 passed by the Special/Sessions Judge (Ayodhya Prakaran), Lucknow for framing of charges is upheld as far as 48 cases referred to in the schedule of Notification No. 4421.VII-Nyaya-2-793/87 dated 9th Sept. 1993 are concerned and the impugned order is set aside with respect to case Crime No. 198 of 1992 mentioned in Notification No. 5175.VII-Nyaya-2-739/87 dated 8th Oct., 1993 which being invalid does not confer any jurisdiction upon the Courts below to take cognizance, commit and try the case relating to Crime No. 198 of 1992 under Sections 153-A, 153-B and 505 of the Indian Penal Code, Police Station Ram Janam Bhumi, Ayodhya, district Faizabad. However, the mistake in issuing the said notification dated 8th Oct., 1993 is curable and it is open fore the State Government to cure the legal infirmity.”

From the above it clearly comes out that the framing of charge by lower court was upheld in respect of only 48 crime numbers. In respect of Crime No. 198 of 1992 the order passed by the lower court was specifically set aside for want of jurisdiction. Otherwise also the accusation/charge of conspiracy (under Section 120-B IPC) in respect of Sections 153-A, 153-B and 505 IPC against accused of Crime No. 198 of 1992 does not appear to be of any significant consequence when Sections 147 and 149 IPC have already been added.

30.Similarly if the accusation regarding criminal conspiracy punishable under Section 120-B IPC has not been invoked against the eight main leaders then how it can be invoked against rest 13-1=12 leaders. The accusations against these remaining 13 accused who have also been found to be within the ambit of Crime No. 198 of 1992, have also to be same because they were also sharing the same dias at Ram Katha Kunj with those 8 persons. Finally, therefore, this submission also lacks merit.

31.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 along with other leaders. There does not appear to be any good reason to treat these leaders under case Crime No. 197 of 1992 and 47 other crime numbers particularly when other leaders who were present on the dias have been found to be accused of only case Crime No. 198 of 1992 as discussed before and this situation has been rather conceded by the CBI itself by filing a separate charge sheet against those 8 leaders in the court at Rae Bareli. However, if the C.B.I has any evidence of conspiracy it can file supplementary charge sheet before the court at Rae Bareli which is seized with the trial of Crime No. 198 of 1992.

32.In the prayer clause of the revision filed by the CBI it has also been requested that till the rectification is made by the government in the relevant notification in respect of Crime No. 198 of 1992 for Lucknow courts the cases against Sri Lal Krishna Advani and 7 others (total 8 persons) be kept in abeyance by the learned court below. In fact the learned court below had considered this option also. But in the interest of justice the court below found it expedient to drop the proceedings against the accused who were covered under Crime No. 198 of 1992 and to proceed expeditiously in respect of remaining accused persons in view of the observations made by this Court as already mentioned in sub-paragraphs (G) and (H) of para 17 of this judgment. Moreover, the C.B.I itself has given up this plea by filing a supplementary charge sheet against these eight accused before the Magistrate at Rae Bareli.

33.Another submission on behalf of the CBI is that since the charge sheet is joint, therefore, it cannot be bifurcated. But after the judgment of this court dated 12.02.2001 it has to be treated as a fractured charge sheet. The contention of the CBI is not acceptable that the witnesses and documents etc. cannot be separated. As mentioned hereinbefore the CBI has itself filed a supplementary charge sheet before the Magisterial Court at Rae Bareli against those 8 persons after segregating 49 witnesses as also 8 documents. Therefore, in the same manner it can be done in respect of remaining 13 - 1(dead) =12 accused persons who have been found to be covered under Crime No. 198 of 1992. Therefore, the aforesaid submissions made on behalf of the CBI are also not acceptable.

34.The submission of the CBI is also that Crime No. 197 of 1992 is wider in comparison to Crime No. 198 of 1992. Firstly this argument is devoid of any substance because as already mentioned both these reports were registered in respect of different places of occurrence and the accusations made therein were also different. Moreover, if the scope of Crime No. 197 of 1992 was really so wide then why the CBI requested the State Government on 17.09.1993 to send the case relating to Crime No. 198 of 1992 to Lucknow and why at all it sought permission from the court concerned to make further investigation in case Crime No. 198 of 1992. Otherwise also if Crime No. 197 of 1992 is treated to be so wide as to include Crime No. 198 of 1992 then it will be in the teeth of this Court's above judgment dated 12.02.2001 which has been upheld by Hon'ble Apex Court also. Therefore, this submission also lacks merit.

35.It is not understandable that when from the very beginning mainly two separate first information reports were filed on behalf of the State because of two different places of occurrence and different nature of accusations and a charge sheet in respect of Crime No. 198 of 1992 was already filed and cognizance was taken by designated court at Lalitpur/Rae Bareli then why the C.B.I prepared a joint charge sheet in all the 49 crime numbers including the one which was already being tried at Rae Bareli (although there is no provision for a ‘joint charge sheet’ in the Code of Criminal Procedure. As already mentioned in para 8 of this judgment the C.B.I took permission for further investigation in respect of Crime No. 198 of 1992 on 10.09.1993 and for the reasons best known to C.B.I, made up its mind to file a joint charge sheet. That is why on

17.09.1993 it wrote to the Government to transfer the Crime No. 198 of 1992 also to the designated court at Lucknow. Not only this it also

prepared the joint charge sheet before hand on 4/5.10.1993 in anticipation of the government notification and after issuance of the notification on 08.10.1993 filed it before the court at Lucknow. In fact after issuance of above notification the C.B.I must have felt relieved that it would be now free from the trouble of bifurcating the already prepared joint charge sheet. But unfortunately this happiness was short lived because this court vide its judgment dated 12.02.2001 (supra) held that notification to be invalid for want of consultation with High Court. In this regard it also appears debatable as to whether a new court can be created for the trial of a particular criminal case for which a designated court (at Rae Bareli) already existed and which had already taken cognizance.

36.Finally, in the conspectus of the above, nothing is found against the correctness, legality, propriety or regularity in respect of any of the findings of the learned lower court. There is no embellishment in the impugned order dated 04.05.2001 either on factual or legal matrix. Hence, there is no occasion for this Court to make any interference in the impugned order.

37.Now I propose to deal with the petition under Section 482 Cr.P.C (Crl. Misc. Case No. 793 of 2001) filed by Sri R. N. Srivastava, the then District Magistrate, Faizabad, U.P Sri I.B Singh, Senior Advocate, appearing on behalf of the petitioner has mainly argued on two points. The other points of controversy pertaining to Crime No. 198 of 1992 visa vis Crime No. 197 of 1992 and remaining crime numbers as averred in this petition have either been already decided vide judgment dated 12.02.2001 (supra) of this Court, or have already been discussed at length hereinabove. The first point is that the petitioner has been wrongly treated to be an accused under case Crime No. 197 of 1992 and the other is that the C.B.I has filed joint charge sheet citing so many witnesses and documents leaving it for the petitioner to sift the witnesses and the material which are proposed against him. As far as first point is concerned, the reasons given by the learned lower court as contained in paragraph 17-B and 26 of this judgment, for rejection of his application are sound and self explanatory. He belongs to a separate class of accused and for the reasons mentioned in above paragraphs and elsewhere as already discussed in detail in this judgment, he could not have been treated to be an accused under Crime No. 198 of 1992. Therefore, this point is not acceptable.

38.As far as the other point is concerned it has substance. From the side of C.B.I it was opposed on the ground that a joint charge sheet has been filed and the copies of all the documents have already been given to the accused in compliance of Section 207 Cr.P.C to make him able to defend himself. But the contention about joint charge sheet has no merit firstly because the joint charge sheet has now become fractured in view of the judgment dated 12.02.2001 of this court (supra) and secondly because after the dismissal of S.L.P by Hon'ble the Apex Court, the C.B.I itself has filed a supplementary charge sheet against eight accused after segregating the material (pertaining to Crime No. 198 of 1992) out of the previous charge sheets including the so called joint charge sheet and cited only forty nine proposed witnesses out of approximately more than hundred witnesses and only eight documents. The accusations against the petitioner who was posted as District Magistrate at Faizabad and who is now the sole government servant who is being prosecuted visa vis rest of the accused of Crime No. 197 of 1992 and other 47 crime numbers are concededly different in nature and different charges have also been framed. Therefore the petitioner has every legitimate right to know as to which of the witnesses and which documents, if any, are proposed to be examined and relied upon against him.

39.As far as compliance of Section 207 Cr.P.C is concerned as claimed by C.B.I a Magistrate is required to furnish to the accused without delay a copy of each of the following:--

(i) Police Report,

(ii) First Information Report recorded under Section 154,

(iii) Statements recorded under sub-Section (3) of Section 161 of persons to whom the prosecution proposes to examine as its witnesses.

......................................

40.The words ‘whom the prosecution proposes to examine as its witnesses’ as mentioned in Section 207 (iii) above are significant. Unless the prosecution agency, in this case the C.B.I comes forward with the names of the persons whom it proposes to examine as its witnesses the effective and full compliance of the aforesaid provision cannot be said to has been made. In this case probably all the copies of documents and statements under Section 161 Cr.P.C have been provided to the petitioner. The C.B.I is, therefore, required to merely indicate as to which of the witnesses and documentary evidence is proposed against the petitioner so that he may not be deprived from effectively preparing and putting his defence. This point may be examined from another angle also. As observed in the judgment of this Court dated 12.02.2001 (supra) there is no provision in the Code of Criminal Procedure in respect of filing joint charge sheet. As there is no negation also, this court dealt with the matter accordingly at that time. Nevertheless there is a categorical finding of this Court in the aforesaid judgment in respect of case Crime No. 198 of 1992 to the effect that the relevant notification in favour of court at Lucknow was invalid and did not confer any jurisdiction upon the courts at Lucknow to take cognizance, commit and try the cases relating to Crime No. 198 of 1992. Therefore a necessary corollary of the aforesaid verdict also entails segregation of the proposed evidence. Therefore, to this extent I find it to be a fit and appropriate case to invoke inherent powers of this Court which are meant to ensure substantial justice. The petition under Section 482 Cr.P.C has to be, therefore, partly allowed to the above extent.

41.The last but not the least is the Writ Petition No. 2666 (MS) of 2005 which has been clubbed with these cases. This writ petition was filed

by Shri Thakur Rajeshwari Sita Ramji Trust through its Sarvarahkar Sri Surendra Pratap Sahi. During the course of arguments it was told on behalf of the petitioner that unfortunately the Sarvarahkar Sri Sahi has expired and no instructions have been received by the learned counsel for the petitioner to proceed with the case. In the absence of instructions any substitution/amendment also could not be made. As such the learned counsel felt handicapped in pressing this writ petition. Therefore, this writ petition is liable to be dismissed on account of this reason itself. Otherwise also it was said that the arguments advanced on behalf of the C.B.I in the Criminal Revision No. 217 of 2001 may be deemed to have been adopted on behalf of the petitioner. All those arguments have already been elaborately dealt with and the same have been found to be devoid of any substance. Therefore, on account of this reason also this writ petition deserves dismissal.

42.In the conspectus of the above the Criminal Revision No. 217 of 2001 and Writ Petition No. 2666 (MS) of 2005 are hereby dismissed. The Criminal Misc. Case No. 793 of 2001 (under Section 482 Cr.P.C) is partly allowed to the extent mentioned hereinbefore. The C.B.I which is the prosecuting agency in this case is directed to indicate at the earliest as to which of the witnesses and documentary evidence are proposed against the petitioner (Sri Ravindra Nath Srivastava) so that he may not be deprived from effectively preparing and putting up his defence.

43.In the end I must express my gratitude to Sri P. K. Chaubey Advocate assisted by Sri Bireshwar Nath and Sri Arun Kumar Mittal Advocates, Sri Kunwar Mridul Rakesh Senior Advocate assisted by Sri Vaibhav Kalia Advocate, Sri I.B Singh Senior Advocate, Sri Mahipal Ahluwaliya Advocate, Sri K. K. Sood Senior Advocate, Sri B. B. Saxena Advocate, Sri A. P. Singh Vats Advocate, Sri Bhupendra Veer Singh Advocate, Sri Subodh Kumar Gupta Advocate and Sri G. N. Mishra Advocate who have appeared on behalf of the respective parties and whose arguments of eminence have been of great help to this Court in deciding these cases.

44.Let copy of this judgment be sent to the lower court concerned through Registrar of this Court.

20.05.2010

Shaakir/