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Babri trio not abosolved
By MJ Akhter, Lucknow

The Lucknow Bench of the Allahabad High Court, while deciding the Babri criminal revision petitions has set aside the Notification No. 5175/VII-Nyaya-2-739/87 of October 8,1993 because ‘statutory consultation was not made by the State Government with the High Court’. Dealing with the points raised by the revisionist 1) whether the special court of Additional Chief Judicial Magistrate, Lucknow (Ayodhya Parkaran) had jurisdiction and was legally competent to try, inquire into and commit the case relating to Crime No. 198 of 1992 and 2) whether Notification No. 5175/VII-Nyaya-2-739/87, dated 09.09.1993 amending Notification No. 4421/VII-Nyaya-2-739 dated 08.10.1993 by adding case Crime No. 198 of 1992 is a valid notification, Mr Jagdish Bhalla in his lengthy order said ‘the spirit of the Constitution of India is independent functioning of the three wings of the State i.e Legislature, Executive and Judiciary. The statutory consultation was not made by the State Government with the High Court for issuing Notification No. 5175/VII, whereby the jurisdiction was conferred upon the Special Court of ACJM to enquire, try and commit the case Crime No. 198 of 1992.’

‘On the other hand, the High Court was consulted before issuing all the other notifications for creation of courts as well as their jurisdiction in these Ayodhya matters. For want of statutory consultation with the High court, the said Notification No. 5175, dated October 8, 1993 is held invalid’, the Court declared, adding that ‘Accordingly, the Special Court of ACJM at Lucknow had no jurisdiction to enquire, try and commit the accused persons relating to Crime No. 198/1992’.

‘However’, the Court observed, ‘the mistake in issuing the said notification is curable and it is open to the State Government to cure the legal infirmity’. The copy of the 153-page -verdict was still not available either to the party concerned or to the media, except the two-page operative portions of the judgement in question and Court's order on that point. Over the issue of whether the disputed structure was a sacred place of worship for Muslims and whether an already defiled structure can be defiled again, Justice Bhalla said, ‘this question is to be decided by the appropriate Court. It cannot be decided in revisional jurisdiction. The Court's response was ‘same as above’ over the question raised during the revision whether it was a dispute of civil nature and had wrongly been shown as a criminal offence. On the question whether actual culprits who had received injuries while demolishing the disputed structure and who were arrested by the police and later released on bail, as well as the accused persons of 48 FIRs lodged by media persons, have not been chargesheeted? If so, its effect, the Court says ‘it is the prerogative of the State Government to chargesheet a person or not. Under the scheme of criminal jurisprudence it is necessary to do one thing out of the two i.e either to file chargesheet under Section 173 Cr.P.C or to file a final report under Section 169 Cr.P.C. The prosecution has neither chargesheeted the 423 persons (karsevaks) who were injured on the spot, arrested and later on released on bail and whose identity is also known to the prosecution.

On whether the impugned order, dated 09.09.1997 for framing of charges against the accused revisionists is sustainable or not, the Court said that ‘the impugned order, dated 9 September, 1997 for framing of charges with respect to the cases mentioned in the Notification No. 4421/ VII-Nyaya-2-739/87, dated 9 September, 1993 is u[held and the impugned order for framing of charges against the accused persons of case Crime No. 198 of 1992 is set aside because the Notification No. 5175/VII-Nyaya-2-739/87 by which jurisdiction regarding case Crime No. 198/1992 was given has been held invalid.’

Under this Crime case, eight accused persons including three Central Ministers- L K Advani, Murli Manohar Joshi and Uma Bharti- and several top ruling BJP and VHP leaders had to stand trial under

Sections 153-A, 153-B and 505 of the Indian Penal Code. Altogether four Criminal Revision petitions had been filed in the High Court here, prominent among them were Ms. Uma Bharti alias Gajra Singh, Mr Moreshwar Savey, Ravindra Nath Srivastava, the then DM of Faizabad and by Ashok Singhal and others. ‘The High Court under revisional jurisdiction will not appreciate the evidence meticulously. This is matter of evidence and will be decided by the trial court. Prima facie from the evidence/material available on the record the offences in revisional against the revisinists’, Justice Bhalla observed while dealing with the point whether the offences of conspiracy, dacoity (section 395 IPC), common object of unlawful assembly committed in the course of same transaction and abetment etc. are prima facie made out against the revisionists?

The Court said ‘No’ to the point raised whether the CBI intended to make fresh investigation in the garb of further probe under Section 173(8) Cr.P.C.

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