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Published in the 1-15 Nov 2004 print edition of MG; send me the print edition

At last, CBI attitude is changing

By Rizvi Syed Haider Abbas

Lucknow: The prosecution’s noose against Lal Krishna Advani, former BJP home minister, for his role in the demolition of Babri Masjid on Dec 6, 1992, has shown some movement of late as the Central Bureau of Investigation has started re-investigating the case.

It is certainly more than ironical that all those who led the campaign against Babri Masjid and now celebrate December 6 as ‘victory-day’ are yet to be tried for their role even after the passage of twelve-years. 

Advani: again under scanner
Advani: again under scanner

Perhaps, a flash back to the chronology of events would help. It may be recalled that after the demolition of Babri Masjid two First Information Report (FIR) were lodged. The first FIR (197/92) was lodged at 5.15 PM on December 6, 1992 against ‘lakhs of karsevaks’ for their main offence of demolition of Babri Masjid and ten minutes later the second FIR under crime No. 198/92 was filed against LK Advani, MM Joshi, Ashok Singhal, Uma Bharti, Giriraj Kishore, VH Dalmia, Vinay Katiyar and Rithambra. 

The charge that they delivered communally inflammatory speeches at 10 am (on Dec 6, 1992) was common to both FIRs. And, FIR 198 had the 120-B Indian Penal Code (IPC) conspiracy charge in it. The FIR 198 also said, "during the speeches of these leaders repeated indications were given to demolish the mosque."

The UP government had then set up a Special Court in Rae Bareli in July 1993 for CBCID (state investigating agency) to file a chargesheet against the accused in Babri Masjid case. CBCID filed only a preliminary chargesheet without conducting extensive investigations and did not include the conspiracy charge.
The demolition case (197/92) was given to CBI while the state police dealt with the speeches case (198/92) but since both the cases, concerned with the same transaction, CBI filed a composite chargesheet on Oct 5, 1993 in Lucknow Special Court. This case would go on after eight years and the same was set aside by Justice Jadgish Bhalla of Lucknow bench of Allahabad High Court on Feb 12, 2001, on a technical lacuna which was "curable". 

Justice Bhalla had said that CBI did not take permission from High Court before bunching the two FIRs and the same could be cured by issuing a fresh notification by UP government. Rajnath Singh was BJP CM then, and later Mayawati became the BSP-BJP coalition CM, hence, a fresh notification was not issued.

Thereafter, all the accused of Crime No. 198/92 applied to CBI to drop proceedings against them pleading the CBI has no jurisdiction to try cases under 198/92. Additional Session Judge SK Shukla dropped the proceedings against the eight accused and 13 others as well on May 4, 2001. After the dropping of charges by SK Shukla in the FIR 198/92 case, the CBI had moved the High Court on June 19, 2001 against the order. 

When UP government did not issue fresh notification, former Indian High Commissioner to UK, Kuldip Nayar and four others went to High Court, Lucknow. The High Court did not issue any direction to UP government and this made him go to the Supreme Court. The apex court took up the matter on Nov 23, 2002 in which UP CM Mayawati filed an affidavit saying that there already existed a Special Court in Rae Bareli where the case could be tried. This offered a loophole to the accused.

After the "disclosure" by UP CM Mayawati, the case was again taken up at the Special Court at Rae Bareli and the CBI filed a supplementary chargesheet, on May 30, 2003, devoid of the conspiracy charge and thus minimising hugely the gravity of the crime. 

It may be mentioned that the omission of Section 120-B IPC was done without further investigations after Oct 5, 1993 and as such the dropping of the charges aroused suspicions about the government’s intentions.

After the road was made easy, Special Judicial Magistrate, Rae Bareli, VK Singh, discharged LK Advani from the conspiracy charge while allowing the framing of charges against seven other accused on Sep 19, 2003. MM Joshi as expected went to Allahabad High Court on Sep 30, 2003 and got a ‘stay’ on the order of Rae Bareli court to chargesheet him and very soon five more criminal revisions were filed by other demolition accused and they have been granted their 'stay-order'.

What could have been expected now of CBI after the Sep 19, 2004 order was that it would file a revision against the order but CBI let the 90-day deadline pass! This made Haji Mehboob, on Dec 17, 2003, whose house was burnt in Ayodhya on Dec 6, 1992, file a revision petition and another application was also moved by Hashim Ansari under section 401 Cr. PC saying there was sufficient proof to frame charges against all the demolition accused including LK Advani.

All these five revisions pleas, four by demolition accused and one by Haji Mehboob, have been taken up from time to time until Sep 28, 2004 when the case was listed for further arguments. Mridul Rakesh, counsel of accused, started by submitting that it would be evident from the video cassettes and audio cassettes filed by the CBI in the Rae Bareli court that the speeches of the accused persons could in no way be said to be either provocative or making out any case punishable under section 123-A etc.

In this respect he pointed out that he had already moved an application for the aforesaid video cassettes being displayed in the court. The court inquired from the counsel of CBI and Haji Mehboob as to when the said video-tapes could be displayed in the court before proceeding with further arguments and thereupon the date of Oct 6, 2004 was fixed.

On Oct 6, the said video tapes were displayed in the court. These were the same video-tapes filed in the Special Court, Rae Bareli, on May 30, 2003 (when the conspiracy charge was dropped) but the tapes-on- record of the court were not so clear as those of its copies supplied to the accused persons and as such the copies of the said-tapes supplied to the accused persons were displayed in court on Oct 6.

Out of the three tapes displayed one was of Dec 5, 1992 in which the speech of (late) Ramchandra Paramhans Das was recorded. The said speech, was full of provocative material and it showed Ashok Singhal, Vinay Katiyar etc. to be present at the time. Paramhans was found to be openly saying that karseva would not remain confined to the manner indicated by the court. The other tape was a mute audio. The CBI counsel failed to answer as to why was there no sound in the concerned tape. In the third cassette some speeches were found but the speeches of the accused persons did not appear to be recorded in that cassette and it appears that the same was filed only to show the presence of accused persons at the site.

"It appears that the attitude of CBI is now that of contesting the revisions filed by Ashok Singhal etc," said Mushtaq Ahmad counsel of Haji Mehboob. "On our application, initially, the court was reluctant to issue notice to LK Advani. However, in July last appearance has been put on behalf of LK Advani and as such the question of issuance of notice has ended," he said further.

What do you mean by this notice issuance? "Till the Lok Sabha elections held in April 2004 LK Advani was avoiding putting in an appearance even through his counsel. An all-out effort was made to see that no notice gets issued and for this purpose senior CBI counsel was flown to Lucknow from Delhi," he informed.

What has been the attitude of CBI? "The CBI senior counsel did not open his cards on whether he opposed our application or supported it. But, in this course he very successfully was able to get the matter adjourned. Now, after the elections he is not appearing," he clarified.

What is the stage of Hashim Ansari’s application? “It has two-parts in it. He has asked that the order of discharge passed in favour of LK Advani be quashed and he gets charged also and the other accused persons be charged for more serious offences," he pointed. 

Next hearing of the case is on November 9.
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