Full Judgment Text
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CASE NO.:
Review Petition (crl.) 163-166 of 2003
PETITIONER:
Mohd. Aslam @ Bhure
RESPONDENT:
State of U.P. & Ors
DATE OF JUDGMENT: 22/03/2007
BENCH:
CJI K.G. Balakrishnan,G.P. Mathur & R.V. Raveendran
JUDGMENT:
JUDGMENT
O R D E R
Review Petition (Crl.) Nos. 163-166 of 2003
In
SLP (Crl.) Nos. 5499-5502 of 2002
With
Review Petition (C) No. 1648 of 2005
In
SLP (C) No. 456 of 2002
K.G. BALAKRISHNAN, CJI.
Petitioner in these Review Petitions seeks review of the
order passed by this Court on 29-11-2002 whereby the Special
Leave Petitions filed by the petitioner were dismissed. The
SLPs were directed against an order dated 12.2.2001 passed
by a Single Judge of the Allahabad High Court at Lucknow.
The challenge was only with reference to a part of that order
by which the learned Single Judge had held that the
Notification issued by the Government of Uttar Pradesh on
8.10.1993 was invalid for want of consultation with the High
Court under sub-section (1) of Section 11 of the Criminal
Procedure Code.
At the outset, we may observe that the petitioner herein
is neither a complainant nor an accused in any of the criminal
cases filed by the State in this matter. Petitioner is an
intervener who has no connection with any of the crimes
registered by the Police.
The facts of the case, in short, are as follows :-
On 6th December, 1992, the disputed structure,
popularly known as "Ram Janam Bhoomi/Babri Masjid" at
Ayodhya was demolished by a group of persons. It was a
protected structure and consequent upon demolition of this
structure, the following two cases were registered on the same
day : (i) Crime No. 197/1992 under Sections 395, 397, 332,
337, 238, 295, 297, 153A IPC was registered by the Police
Station Ram Janam Bhoomi, District Faizabad, against
unnamed Kar Sevaks in regard to an incident which allegedly
took place at 12.15 PM on 6th December, 1992; and (ii)
Crime No. 198 of 1992 was also registered by the Police
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wherein eight persons were implicated as accused under
Sections 153A, 153B, 505, 147, 149 IPC. There were also
allegations of widespread commission of robbery, rioting and
mischief and other minor offences by different groups of
persons against the media and 47 crimes were registered for
offences punishable under Sections 392, or 394, or 395, 147,
427, 336, etc.
The investigation of the crime registered as 197/92 was
entrusted to the Central Bureau of Investigation (C.B.I.) on
13.12.1992, upon which the CBI re-registered the case as R.C.
No. 8(S)/92-SIU.V-New Delhi.
The investigation of Crime No. 198/92 was taken over by
CB CID of the State of Uttar Pradesh on 10.12.1992. On
16.12.1992, the State of Uttar Pradesh, in consultation with
the High Court of Allahabad, established a Special Court of
Judicial Magistrate First Class with its place of sitting at
Lalitpur, to try the case relating to Crime No. 198/1992.
The CB CID of the State filed the final report under Section
173 of the Criminal Procedure Code. Crime No. 198/92 had
been registered against all the eight accused persons named in
the First Information Report, for the offences under Sections
153A, 153B, 505, 147 and 149 IPC. The Special Judicial
Magistrate at Lalitpur took cognizance of the case on 1.3.1993.
By Notification dated 8.7.1993, the State Government, after
consultation with the High Court, shifted the place of sitting of
the Court of Special Judicial Magistrate from Lalitpur to Rae
Barelli.
By Notification dated 26.8.1993, the Government of
India, with the consent of the Government of Uttar Pradesh
entrusted the investigation of Crime No. 198/92 and cases
arising from same facts/transaction to the CBI. The CBI re-
registered the Crime No. 198/92 as R.C. 1(s)/93 and the other
47 related cases as R.C. Nos. 2(s)/93 to 48(s)/93. On
8.9.1993, the Government of Uttar Pradesh, in consultation
with the High Court, issued a Notification establishing a
special court of Additional Chief Judicial Magistrate at
Lucknow, for trial of cases arising out of demolition of the
disputed structure at Ayodhya, investigated by CBI. Another
Notification dated 8.9.1993 was issued by the Governor of
Uttar Pradesh, in exercise of power under Section 11(1) of
Cr.P.C., in consultation with the High Court of Allahabad
establishing a Special Court of Judicial Magistrate, First
Class, for the area comprising the entire State, with place of
sitting at Lucknow, to try or enquire into and commit to the
Court of Sessions all cases arising out of Crime No. 197/92
and 47 other cases in which investigations were made or
charge sheets were filed by CBI. A list of these cases was
appended to the Notification. But no mention was made as
regards Crime No. 198/92, the investigation of which had
already been entrusted to the CBI vide Notification dated
26.8.1993.
The CBI on 9.9.1993 moved an application before the
Special Judicial Magistrate, Rae Barelli, seeking permission for
further investigation under Section 173(8) Cr.P.C., in Crime
No. 198/92 and by order dated 10.9.1993, the learned
Magistrate, Rae Barelli, granted permission to the CBI for
further investigation of the above case.
One Shri Vijay Verma was appointed by the High Court
as the Additional Chief Judicial Magistrate (Special Court) at
Lucknow on 5.10.1993 for trial and disposal of cases
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investigated by CBI pertaining to demolition of disputed
structure at Ayodhya. The CBI filed a consolidated charge-
sheet dated 4.10.1993 before the Additional Chief Judicial
Magistrate, Lucknow, against 40 persons, that is, those
implicated in Crime No 198/92 as well as others who were
accused persons in Crime No. 197/92 and also in the 47 other
cases registered by the Police Station at the Ram Janam
Bhoomi.
On 8.10.1993, the Govt. of Uttar Pradesh issued
Notification No. 5175/VII/Nyaya-2-739/87. The Notification
read as follows :
"In exercise of the powers under Proviso to sub-section (1) of
Section 11 of the Code of Criminal Procedure, 1973 ( Act No. 2
of 1974) read with Section 21 of the General Clauses Act, 1897
(Act No. 10 of 1897), the Governor is pleased to make the
following amendment in the Notification No. 442/VII-Nyaya-2-
739/87, dated Lucknow: September 9, 1993.
AMENDMENT
In the Schedule to the aforesaid notification after item 48, the
following item column-wise inserted, namely:-
S.No. Crime No. Police Station Sections
_____________________________________________________________
49. 198/92 Ram Janam Bhumi 153-A,153-B, 505
IPC
By Order,
A.K. SRIVASTAVA
Sachiv"
By this Notification, the Govt. purported to have
transferred the case registered as Crime No. 198/92 from the
Rae Barelli court to the court of the Additional Chief Judicial
Magistrate at Lucknow. Consequent upon the Notification
dated 8.9.1993, the CBI filed a consolidated charge sheet
before the Special Court of Addl. Chief Judicial Magistrate at
Lucknow, who took cognizance of the offences on 11.10.1993.
It may be remembered that the Special Judicial
Magistrate at Rae Barelli had given permission to the CBI for
further investigation on 10.9.1993 and that court sought a
report regarding progress of the investigation from CBI on
18.10.1993. CBI informed the Special Judicial Magistrate,
Rae Barelli, on 6.12.1993 about the filing of consolidated
charge sheet at Lucknow. In view of it, the Magistrate at Rae
Barelli, directed the transfer of the records to Addl. Chief
Judicial Magistrate, Lucknow.
The Additional Sessions Judge (Ayodhya Matters),
Lucknow, by order dated 9.9.1997 framed charges in S.C. No.
344/1994 (corresponding to Crime no. 197/1992) and S.C.
No. 749/1996 (corresponding to Crime No. 198/1992).
Feeling aggrieved, different sets of accused filed Cr.R.P. Nos.
199, 201, 211 and 295 of 1997. The said revision petitions
were allowed in part by a learned Single Judge, by common
order dated 12.2.2001. The learned Single Judge upheld the
order dated 9.9.1997 passed by the Special Judge, Lucknow,
for framing charges in 48 cases (referred to in the Schedule to
Notification dated 9.9.1993). The learned Single Judge,
however, set aside the said order 9.9.1997 of the Special
Judge in so far as it related to Crime No. 198/1992 covered by
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the Notification dated 8.10.1993 on the ground that the said
Notification was illegal and invalid for want of consultation
with the High Court required under Section 11 (1) of Cr.P.C.
The High Court further held :
"This notification being illegal and without
jurisdiction is invalid. Therefore it could not confer
jurisdiction upon the Special Court of A.C.J.M.
Lucknow to try or inquire into and commit to the
Court of Sessions case Crime No. 198 of 1992.
Therefore, the said Special Court of A.C.J.M. at
Lucknow had no jurisdiction to try, enquire into
and commit case Crime No. 198 of 1992. Since
committal of accused persons relating to case Crime
no. 198 of 1992 by order dated 27.8.1994 passed by
the Special Court of A.C.J.M. at Lucknow was
illegal, subsequent proceedings in the Court of
Special Judge (Ayodhya Prakaran) including the
impugned order dated 9th September, 1997 for
framing of charges as far as the accused persons of
case Crime No. 198 of 1992 are concerned are
illegal, without jurisdiction and are liable to be set
aside."
The High Court, however, observed that the mistake in
issuing the said Notification dated 8.10.1993 is curable and it
is open to the State Government, if it so desires, to rectify the
matter by issuing a fresh notification after consultation with
the High Court in accordance with law.
The petitioner challenged the said order of the High Court
in S.L.P. (Crl.) Nos. 5499-5502/2002. This Court dismissed
the S.L.Ps. by order dated 29.11.2002. The petitioner seeks
review of the said order dated 29.11.2002.
We may next refer to Review Petition (C.) No. 1648/2005.
On the ground that the State Government had not taken steps
to issue a fresh notification in place of the Notification dated
8.10.2003 (which was held by the High Court to be invalid),
one Kuldip Nayar and others filed W.P. No. 2367 (M/B) of
2001 in the Allahabad High Court, seeking a direction to the
State Government to take steps forthwith to issue a fresh
notification after consultation with the High Court, for
amendment of the Notification dated 9.9.2003, to confer
jurisdiction on the Special Court, Lucknow, to try or enquire
into and commit to the Court of Sessions, the matter relating
to Crime No. 198/1992. The said petition was disposed of by
the Allahabad High Court by order dated 21.5.2001 holding
that it was not a case for issuing any direction to the State
Government as the matter was one within the discretion of the
State Government. The petitioner who was not a party before
the High Court filed S.L.P. (C.) No. 456/2002, seeking leave to
challenge the said order. The said Special Leave Petition was
also dismissed by this Court by a common order dated
29.11.2002.
This Court, while disposing of the Special Leave Petitions,
observed that the State Government in consultation with the
High Court has constituted a Special Court at Rae Barelli for
trying the cases in relation to Crime No. 198/1992 and no
person, much less the petitioners in public interest, can claim
any Special Court at any particular place for trial of any
particular criminal case.
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We are only concerned with the limited question whether
the learned Single Judge was justified in holding that the
Notification dated 8.10.1993 was invalid on the ground that
the said Notification was issued by the State Government
without consultation with the High Court of Allahabad.
Parties before the High Court conceded that there was no
consultation by the State Govt. prior to the issuance of the
Notification dated 8.10.1993. The learned Single Judge dealt
with the matter elaborately and came to the conclusion that
there was no consultation with the High Court of Allahabad
and before issuance of the Notification the State Govt. should
have consulted the High Court. It was also an admitted fact
that in the schedule annexed with the Notification dated
9.9.1993 (4421/XII Ayodhya/739/87), Crime No. 198/92 was
not included. The same may be a technical mistake on the
part of the State Government. The learned Single Judge was
also of the view that the same could be rectified by the State
Government by issuing a fresh notification after consultation
with the High Court. It is for the State Government to take
appropriate steps in the matter, if it so desires, by issuing a
fresh notification. We are of the opinion that the earlier order
passed by this Court dismissing the Special Leave Petitions
does not require any re-consideration. There is no error
apparent on the face of the record nor do the facts and
circumstances warrant any interference with our earlier order.
The Review Petitions are without any merit and dismissed
accordingly.
We, however, find a typographical error in the Order
dated 29.11.2002 requiring correction. The word "Lalitpur" at
line 8 of the Order shall be read as "Lucknow".