Holding

All offences arising from the Babri Masjid demolition constitute a single transaction warranting a joint trial, and the Supreme Court may, under Article 142, transfer the pending proceedings at Rae Bareilly to the Sessions Court at Lucknow to effect that joint trial.

Summary

The case concerns the demolition of the Babri Masjid and the filing of a joint charge‑sheet by the CBI covering 49 FIRs alleging offences such as criminal conspiracy, hate offences and dacoity. The High Court held that a technical defect in the State notification preventing a joint trial was curable, but the Special Court had dropped proceedings against 21 accused, a decision the Supreme Court found erroneous. The Supreme Court held that all accused, including those whose cases were pending before a Special Judicial Magistrate at Rae Bareilly, must face a joint trial because the offences arise from the same transaction. Using its power under Article 142, the Court ordered the transfer of the Rae Bareilly proceedings to the Sessions Court at Lucknow and the addition of the pending charges under Sections 216 and 217 of the CrPC, without infringing Article 21. The appeal was allowed and detailed directions were issued for the conduct of the trial.

Issues considered

The validity of the State notification amending the earlier notification to include the second FIR and its impact on jurisdiction.
Whether the dropping of proceedings against 21 accused was legally permissible.
Whether a joint trial is required for all 49 FIRs despite being lodged separately.
Whether the Supreme Court can, under Article 142, transfer proceedings from a Special Judicial Magistrate to a Sessions Court without violating Article 21 or Section 407 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 11(1) proviso, s. 216, s. 217, s. 406, s. 407
Constitution of Indias. 142, s. 21, s. 361
Criminal Law Amendment Act, 1952s. 7(1)
Indian Penal Code, 1860s. 120-B, s. 147, s. 149, s. 153-A, s. 153-B, s. 295, s. 295-A, s. 332, s. 337, s. 338, s. 395, s. 397, s. 505

Subjects

Babri Masjid demolitionjoint trialcriminal conspiracyArticle 142Article 21Section 407 CrPCSection 216 CrPCSection 217 CrPCCBIspecial courtprocedural defectequity vs law

Judgment

[2017] 6 S.C.R. 946

A STATE (THROUGH) CENTRAL BUREAU OF INVESTIGATION
v.
SHRI KALYAN SINGH (FORMER CM OF UP) & ORS.
(Criminal Appeal No. 75 I of 2017)
B APRILI9,2017
[PINAKI CHANDRA GROSE AND R. F. NARIMAN, JJ.]
'Bahri Masjid' case - Masjid - Demolition of - 49 FIRs
lodged - First FIR lodged against lakhs of kar sewaks for offences
ulss.153-A, 295, 297, 332, 337, 338, 395 and 397 r/w 120-B !PC -
c
Second FIR lodged against eight persons (out of whom two are
dead) ulss.153-A, 153-B, 505 !PC - Further, 46 F!Rs pertaining to
cognizable offences and 1 FIR pertaining to non-cognizable offences
were also lodged - Notification issued by the State Government to
try all the cases, except second FIR at Lucknow by Special Court -
D Special Court committed the cases to a. Court of Sessions - CBI
filed a consolidated chargesheet - State Government amended
notification and i11serted seco11d FIR, so that all 49 cases could be
tried at Lucknow, however, amendment did not comply with proviso
to s.11(1) Cr.P.C, thus, it was struck dow11- CBI.filed suppleme11tary
E chargesheet against 8 perso11s at Luck11ow - Special Judge,
Lucknow held all offe11ces committed i11 course of same transactio11
which warra11ted a joi11t trial - 111 criminal revisio11 petitio11, High ·
Court upheld frami11g of charges i11 48 cases out of 49 cases, except
seco11d FIR a11d, further held that notificatio11 by State government
seeking amendment(of inserting second FIR and trying 49 cases
F together) of earlier notification was a curable legal infirmity - CBI
requested State government to rectify the notification, which was
rejected - Then, CBI filed supplementary chargesheet agai11st eight
accused perso11s before Judicial Magistrate, Rae Bareilly - Held:
The evidences for all.the offences is almost the same and these
G offences, therefore, cannot be separated from each other,
irrespective of the fact that 49 different F!Rs were lodged - High
Court expected rectification of notificatio11 after delivery of its
judgment, in which case joint trial would have proceeded, however,
i11Stead, supplementary chargesheet was filed by CB/at Rae Bare illy,
which completely derailed the joint trial envisaged - Therefore, best
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 947
CM OF UP) & ORS.

course in present case would be to transfer the proceedings (.'>econd A
FIR) going on at Rae Bareilly to the Sessions Court at Lucknow so
that joint trial could proceed.
Code of Criminal Procedure, 197 3 - 'Bahri Masjid'
demolition case - Dropping of proceedings - Special Court dropped
proceedings against 21 persons, taking view that there were two 8
sets of accused, one-kar sewaks who demolished the Masjid and
others who were instigators and same was upheld by the High Court
- Held: The dropping ofproceedings against 21 accused was totally
erroneous - Said accused could not possibly have been discharged,
as they were arrayed as accused insofar charge of criminal
conspiracy is concerned in the joint chargesheet filed by the CBI - C
Charge of criminal conspiracy being already there in joint
chargesheet, this charge could be added to the charges already
framed against the survivors of the group of 8 accused - As, against
the survivors of the group of 13, Penal Code offences mentioned in
the joint chargesheet also need to be added - There is no need for D
de novo trial inasmuch as the aforesaid charges against all the 21
accused can be added in the ongoing trial.
Constitution of India - Arts. 21, 142 - 'Bahri Masjid'
demolition case - Transfer of proceedings - Scope of - Respondent
Nos. 4, 5 contended that Art.142 cannot be used to transfer E
proceedings from Rae Bareilly to Lucknow as proceedings at Rae
Bareilly was with Judicial Magistrate and 011 going proceedings at
Lucknow were with Session Court - It was pleaded that the right to
appeal of respondents from court of judicial magistrate to Sessions
court would be taken away, infringing Art.21 ~Held: The fact that
one Special Judge happens to be Magistrate, whereas the other F
Special Judge has committed the case to a Court of Sessions would
not make any difference as, even a right of appeal from a Magistrate
to the Sessions Court and from the Session court to the High Court
could be taken away under procedure established by law i.e., by
virtue of section 407(1) and (8) - Hence, u/s.407 even if 2 tiers of G
appeal are done away with, there is no infraction ofArt.21 - Further,
the fact that High Court has been given power of transfer under
Cr.P. C. does not detract from the Supreme Court using constitutional
power u/Art.142 - In present case, there is no substantive mandatory

H
948 Sl)PREME COURT REPORTS [2017] 6 S.C.R.

A provision which is infracted by using Art.142 -Maxims - 'Fiat justitia
ruat caelum'- Code of Criminal procedure, 1973 - s.407.
Constitution of India - Art. 142 - Held: By Article 142, equity has
been given precedence over law - But it is not the kind of equity
which can disregard mandatory substantive provisions of law when
B the Supreme Court issues directions under Art. 142 - While .moulding
relief. the Supreme Court can go to the extent of relaxing the
application of law to the parties or exempting altogether the parties
from the rigours of the law in view of the peculiar facts and
circumstances of the case - This being so, it is clear that Supreme
Court has the power, nay, the duty to do complete justice in a case
c when found necessary - Equity.
1Jeliiy/laches - 'Bahri Masjid' demolition case - Said crime
which shook the secular fabric of the Constitution of India was
committed almost 25 years ago - Accused persons not yet brought
to book - Held: Th~re shall be no transfer of the Judge .conducting
D trial until the entire trial concludes - Case not to be adjourned on
any ground except when the Session Court finds it impossible to
carry on the trial for that particular date, reasons to be recorded
for the same - CBI to ensure that on every date fixed for evidence,
some prosecution witnesses must remain present, so that for want of
E witnesses the matter be not adjourned - Sessions Court to complete
the trial and deliver the judgment within a period of 2 years from
the date of receipt of this judgment.
Disposing of the appeal, the Court
HELD: 1. The judgment dated 12th February, 2001 of
F Allahabad High Court, clearly and unequivocally held that a joint
charge sheet had been filed by the CBI on the ground that all the
offences were committed in the course of the same transaction
to accomplish the conspiracy alleged. The evidence for all these
offences is almost the same and these offences, therefore, cannot
G be separated from e.ach other, irrespective of the fact that 49
different FIRs were lodged. It is Clear that in holding to the
contrary, the impugned judgment dated 22nd May, 2010 of High
Court which upheld the judgment dated 4th May, 2001 of the
Special Court, is clearly erroneous. The offence of criminal
· conspiracy is already there in the joint charge sheet filed by the
H
STATE (THROUGH) CBI v. SHRI KALYAN SlNGH (FORMER 949
CM OF UP) & ORS.

CBI against all the named accused, which includes the 21 accused A
who have been discharged. That being the case, it is clear that
the said accused could not possibly have been discharged, as
they were already arrayed as accused insofar as the charge of
criminal conspiracy was concerned, which would be gone into by
the Special Judge, Lucknow, while dealing with the offences made B
out in first FIR. In this regard also, the impugned judgment in
holding to the contrary is not correct.-[Para 14] [963-A-D]
2. The impugned judgment also artificially divided offences
and offenders into two groups which did not follow from the
judgment dated 12th February, 2001. It is clear from a reading of
the judgment dated 12th February, 2001, that the High Court C
expected that the defect noticed in the notification (for joint trial)
would be cured soon after the delivery of the judgment in which
case a joint trial would have proceeded. This, however, did not
happen, because the CBI did not challenge the rejection of the
request to cure the technical defect. Instead the course taken by D
the CBI has caused great confusion. The filing of the
supplementary charge sheet against 8 accused persons which is
going on separately at Rae Bareilly and the dropping altogether
of charges against the 13 accused persons, after the Judgment
dated 12th February, 2001 has completely derailed the joint trial
envisaged and has resulted in a fractured prosecution going on E
in two places simultaneously based on a joint charge sheet filed
by the CBI itself. In order to remedy what ought to have been
done by the State Government in 2001 by curing the technical
defect pointed out by the High Court of Allahabad in the judgment
dated 12th February, 2001, the best course would be to transfer F
the proceedings going on at Rae Bareilly to the Court of Sessions
at Lucknow so that a joint trial of all the offences mentioned in
the joint charge sheet filed by the CBI against the persons named
could proceed. Since the charge of criminal conspiracy against
all 21 accused is already in the joint charge sheet filed by the
CBI at Lucknow, this charge could be added to the charges G
already framed against the survivors of the group of 8 accused.
As against the survivors of the group of 13, Penal Code offences
mentioned in the joint charge sheet also need to be added.
Further, there is no need for a de novo trial inasmuch as the
H'
950 SUPREME COURT REPORTS [2017] 6 S.C.R.

A aforesaid charges against all 21 accused persons can conveniently
be added under Section 216 of the Code of Criminal Procedure
in the ongoing trial. No prejudice will be caused to the accused
as they have the right to recall witnesses already examined either
in Rae Bareilly or in Lucknow for the purpose of cross-
examination. The Court of Sessions at Lucknow will have due
8
regard to Section 217(a) of the Code of Criminal Procedure so
that the right to recall is not so exercised as to unduly protract
the trial. [Paras 15, 16) [963-E; 964-B-G)
3.1 The Latin maxim fit1t justitit1 rutlt ct1elum is what first
comes to mind on a reading of Article 142 - Let justice be done
c though the heavens fall. This Article gives a very wide power to
do complete justice to the parties before the Court, a power which
exists in the Supreme Court because the judgment delivered by
it will finally end the litigation between the parties. Article 142
follows upon Article 141 of the Constitution, in which it is stated
D that the law declared by the Supreme Court shall be binding on
all Courts within the territory of India. Thus, every judgment
delivered by the Supreme Court has two components - the law
declared which binds Courts in future litigation between persons,
and the doing of complete justice in any cause or matter which is
pending before it. It is, in fact, an Article that turns one of the
E maxims of equity on its head, namely, that equity follows the law.
By Article 142, equity has been given precedence over law. But
it is not the kind of equity which can disregard mandatory
substantive provisions of law when the Court issues directions
under Article 142. While moulding relief, the Court can go to the
F extent of relaxing the application oflaw to the parties or exempting
altogether the parties from the rigours of the law in view of the
peculiar facts and circumstances of the case. This being so, it is
clear that this Court has the power, nay, the duty to do complete
justice in a case when found necessary. In the present case,
crimes which shake the secular fabric of the Constitution of India
G have allegedly been committed almost 25 years ago. The accused
persons have not been brought to book largely because of the
conduct of the CBI in not pursuing the prosecution of the aforesaid
alleged offenders in a joint trial, and because of technical defects
which were easily curable, but which were not cured by the State
H Government. [Para 19) [966-F-G; 967-A-E]
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 951
CM OF UP) & ORS.

3.2 In the present case, the power of transfer is being A
exercised to transfer a case from one Special Judge to another
Special Judge, and not to the High Court. The fact that one Special
Judge happens to be a Magistrate, whereas the other Special
Judge has committed the case to a Court of Sessions would not
make any difference, as even a right of appeal from a Magistrate
B
to the Sessions Court, and from the Sessions Court to the High
Court could be taken away under the procedure established by
law, i.e., by virtue of Section 407 (1) and (8) if the case is required
to be transferred from the Magistrate at Rae Bareilly to the High
Court itself. Hence, under Section 407, even if 2 tiers of appeal
are done away with, there is no infraction of Article 21 as such c
taking away of the right of appeal is expressly contemplated by
Section 407(1)(iv) read with Section 407(8). [Para 24] [969-B-D]
4. Accordingly, the following directions are issued: i) The
proceedings viz. Second FIR in the Court of the Special Judicial
Magistrate at Rae Bareilly will stand transferred to the Court of D
Additional Sessions Judge (Ayodhya Matters) at Lucknow; ii)
The Court of Sessions will frame an additional charge under
Section 120-B against 6 accused. The Court of Sessions will frame
additional charges under Section 120-B and the other provisions
of the Penal Code mentioned in the joint charge sheet filed by
the CBI against 6 accused. One accused, being the Governor of E
Rajasthan, is entitled to immunity under Article 361 of the
Constitution as long as he remains Governor of Rajasthan. The
Court of Sessions will frame charges and move against him as
soon as he ceases to be Governor; iii) The Court of Sessions
will, after transfer of the proceedings from Rae Bareilly to F
Lucknow and framing of additional charges, within four weeks,
take up all the matters on a day-to-day basis from the stage at
which the trial proceedings, both at Rae Bareilly and at Lucknow,
are continuing, until conclusion of the trial. There shall be no de
novo trial. There shall be no transfer of the Judge conducting
the trial until the entire trial concludes. The case shall not be G
adjourned on any ground except when the Sessions Court finds
it impossible to carry on the trial for that particular date. In such
an event, on grant of adjournment to the next day or a closely
proximate date, reasons for the same shall be recorded in writing;
H
952 SUPREME COURT REPORTS [2017] 6 S.C.R.

A iv) The CBI shall ensure that on every date fixed for evidence,
some prosecution witnesses must remain present, so that for
want of witnesses the matter be not adjourned; v) The Sessions
Court will complete the trial and deliver the judgment within a
period of 2 years from the date of receipt of this judgment. [Para
27) [972-G-H; 973-A-G]
B
A. R. Antulay v. R. S. Nayak & Another (1988) 2 SCC
602 : (1988) 1 Suppl. SCR 1 - held inapplicable.
Supreme Court Bar Association v. Union of India &
Another 1998 (4) SCC 409 : [1998) 2 SCR 795 ; State
C of Punjab v. Rafiq Masih (2014) 8 SCC 883 : [2014) 8
SCR 228 ...,. referred to.
Case Law Reference
[1988] 1 Suppl. SCR 1 · held. ktapplicable Para 13

D [1998) 2 SCR 795 referred to Para 18
(2014] 8 SCR 228 referred to Para18
. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
751 of 2017.
From the Judgment and Order dated 20.05.2010 of the High Court
E
of Judicature at Allahabad, Lucknow Bench in Criminal Revision No.
217 of 2001.
.N. K. Kaul, ASG, Ms. V. Mohana, K. K. Venugopal, Vikramjit
Banerjee, Kapil Sibal, Sr. Advs, Rajiv Nanda, S.S. Kachwaha, Sanyat
Lodha, Ritin Rai, Nitesh Daryanani, Anupam Misra, Ms. Chanan
F Parwani, Harish Kumar, Mukesh Kumar Maroria, Merusagar
Samantaray, D. Bharat Kumar, Bhaskar Goutam, Ms. Lhingneivah,
Ms. Viddusshi, Ankur Talwar, Santosh Kumar, Bharat Sood, Ms. Ruchi
Kohli, Ms. Kamini Jaiswal, M. R. Shamshad, Farrukh Rasheed, Aditya
Samaddar, Ms. Preetika Dwidvedi, P. V. Yogeswaran, Ms. Jyotika Kalra,
G Nishant Ramakantrao Katneshwarkar, S.S. Shamshery, Amit Sharma,
Bhakti Vardhan Singh, R. C. Kohli, Vishwa Pal Singh, Sarad Kumar
Singhania, Nachiketa Joshi, Vijay Kumar, Ms. Apama Jha, Amit Bhagat,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 953
CM OF UP) & ORS.

R. F. NARIMAN, J. Leave granted. A
1. The present appeal arises out of the demolition of~habri Masjid.
We are concerned in this case with two FIRs lodged on 6 December,
199Z: The first viz. Crime No.197of1992, is against lakhs ofkar sewaks
alleging the offences of dacoity, robbery, causing of hurt, injuring/defiling
places of public worship, promoting enmity between two groups on. B
grounds of religion, etc. The !PC offences were, therefore, under Sections
153-A, 295, 297, 332, 337, 338, 395 and 397. The. second FIR viz. FlR
No.198 of 1992 was lodged against eight persons na!Tled therein - Mr.
. L.K. Advani, Mr. Ashok Singhal, Mr. Vinay Katiar, Ms. Uma Bharati,
Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi, Mr. Giriraj Kishore C
and Mr. Vishnu Hari Dalmia, two of whom are dead due to passage of·
time viz. Mr. Ashok Singhal and Mr. Giriraj Kishore. The FIR alleges
offences under Sections 153-A, 153-B and Section 505 IPC. 46 further
FIRs pertaining to cognizable offences and 1 FIR pertaining to non-.
cognizable offences were also lodged. Initially, a Special Court set up at
Lalitpur was to try these cases but subsequently notifications were issued D
b;t the State Government, after consultation with the High Court, dated
8 September, 1993 whereby these cases were to be tried by a Special
Court at Lucknow. All these cases were committed to a Court of Sessions,
Lucknow in which FIR No.197, but not FIR.No.198, was to be tried. It
may be noted that pri~rtothetransferofFIR No.197of1992 to Lucknow,
by an Order dated 13 April, 1993, the Special Magistrate added Section P
120-B IPC to the said FIR No.197of1992.
th
2. On 5 October, 1993, the CBI filed a consolidated chargesheet
against 48 persons in all including the names of Mr. Bala Saheb Thackeray,
Mr. Kalyan Singh, Mr. Moreshwar Save, Mr. Champat Rai Bansal, Mr..
Satish Pradhan, Mr. MahantAvaidyanath, Mr. Dharam Das, Mr. Mahant F
Nritya Gopal Das, Mr. Mahamadleshwar Jagdish Muni, Mr. Ram Bi las
Vadanti, Mr. Vaikunth Lal Sharma @ Prem, Mr. Prama Hans Ram
Chandra Das, and De Satish Chandra Nagar. It may be stated that .
owing to the passage of time, six of these are since deceased namely
Mr. Bala Saheb Thackeray, Mr. Moreshwar Save, Mr. Mahant . G
Avaidyanath, Mr. Prama Hans Ram Chandra Das, Mr.
Mahamandleshwar Jagdish Muni, and Dr. Satish Nagar. So far as the
charge of conspiracy is concerned, the chargesheet records:
The aforesaid acts of Shri Bala Saheb Thackeray, Chief of Shiv
. Sena, Bombay, Shri L.K. Ad\fitni, MP, BJP, presently BJP President, H
954 SUPREME COURT REPORTS [2017] 6 S.C.R.

A Shri Kalyan Singh, ex-ChiefMinister ofUttar Pradesh, Shri Ashok
Singhal, General Secretary, VHP, Shri Vinay Katiyar, MP Baj rang
Dal, Shri Moreshwar Save, MP, Shiv Sena, Shri Pawan Kumar
Pandey, Ex-MLA, Shiv Sena, Shri Brij Bhushan Saran Singh, MP,
BJP, Shri Jai Bhagwan Goel, North India Chief, Shiv Sena, Ms.
Uma Bharati@ Gajra Singh, MP, BJP, Sadhvi Rithambara, VHP
B
leader, Maharaj Swamy Sakshi, MP, BJP, Shri Satish Pradhan,
MP, Shiv Sena, Shiv Sena, Shri Murli Manohar Joshi, Ex-President,
BJP, Shri Giriraj Kishore, Joint General Secretary, VBP, Shri
Vishnu Hari Dalmia, President, Ram Chandra Khatri, Vice
President, Haryana, Shri Sudhir Kakkar, Organising Secretary,
c Shiv Sena, Punjab, Shri Amarnath Goel, Shiv Sena activist, Shri
Santosh Dubey, Leader of Shiv Sena, Ayodhya, Shri Prakash
Sharma, Joint Secretary, Bajrang Dal, Shri Jaibhan Singh Paweya,
All India General Secretary, Bajrang Dal, Gwalior, Shri Ram
Narayan Dass, ex-Pujari of Ram Janam Bhoomi, Shri Ramji Gupta,
Supervisor Ram Janam Bhoomi Nyas, Shri Lallu Singh, ex-MLA,
D
BJP, Shri Champat Rai, Joint Zonal Organising Secretary, VHP,
Shri Om Prakash Pandey, Hindu activist, Shri Lakshmi Narayan
Das, Mahatyagi, Activist, BJP, Shri Vinay Kumar Rai, Hindu
activist, Shri Kamlesh Tripathi@Sait Dubey, Bajrang Das, activist,
Shri Gandhi Yadav, BJP activist, Shri Hargovind Singh, Hindu
E activist, Shri Vijay Bahadur Singh, Chief Security Officer, Shri
Krishan Temple, Mathura, UP, Shri Navin Bahi Shukla, Hindu
activist, Shri Ramesh Pratap Singh, BJP activist, and Acharya
Dharmender Dev, Leader, Bajrang Dal constitutes offences U/s
120-8 f PC r/w 153-A, 153-8, 295, 295-A and 505 !PC and
substantive offences U/s 153-A, 153-8, 295, 295-A and 505 !PC.
F th
3. On 8 October, 1993, the State Government amended the
~'
notification dated 9 September, 1993 inserting FIR No.198 of 1992
against the eight persons aforesaid so that all 49 cases could be tried by
the Special Court, Lucknow. To cut a long story short, since this
amendment notification did not comply with Section 11 (I) proviso of the
G Criminal Procedure Code, 1973 viz. that consultation with the High Court
was lacking, this notification was ultimately struck down.
4. At this point, it is important to note that the CBI filed a
supplementary chargesheet againstththe 8 persons mentioned hereinabove
in the year 1996 at Lucknow. On 9 September, 1997, the Special Judge,
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 955
CM OF UP) & ORS. [R. F. NARIMAN, J.)

Lucknow passed an order that there was a prima facie case against all A
the accused persons for framing charges of criminal conspiracy under
Section 120-B read with various other Sections ofthf; Penal Code. The
Court held that all the offences were committed in the course of the
same transaction which warranted a joint trial and that the case was
exclusively triable by the Court of the Special Judge, Lucknow. It is
B
worth setting out parts of this order which read as fo.llows:
"There seems to be a prima facie case for offences u/s 14 7I I 53-
A/153-B/295/295-A/505 read with u/s 149 !PC against accused
Sri Lal Krishna, Ashok Singh, Vinay Katiyar, Moreshwar Save,
Pawan Kuma1r Pandey, Ms. Sadhvi Ritambhra, Maharaj Swami
Sakshi, Murli Manohar Joshi, Oiri Raj Kishore and Vishnu Hari c
Dalmia. Against accused Pawan Kuamr Pandey, Brij Bhushan,
Saran Singh, Pawaiya, Dharmendra Singh Gurjar, Ram Narain
Das, Lalloo Singh, Om Prakash Pandey, Laxmi Narain Das, Maha
Tyagi, Vinay Kumar Rai, Kamles_h Tripathi, Gandhi Yadav, Har
Govind Singh, VijayBahadur Singh, Navin Bhai Shukla, offences D
u/s 332/338/2-01 read with Sec.149 ofIPC seem to be made out.
Offences under Sec.120-B of IPC read with u/s 153-A/153-B/
295/295-A/505 ofIPC as per evidence produced by the prosecution
seem to be made out prima facie against Sri Bala Saheb Thackeray,
Lal KrishnaAdvani, Kalyan Singh, Ashok Singhal, Vinay Katiyar,
Moreshwar Save, Pawan Kumar Pandey, Brij Bhushan Saran E
Singh, Jai Bhagwan Goal, Maharaj Swami Sakshi, Satish Pradhan,
Murli Manohar Joshi, Acharya Giriraj Kishore, Vishnu Hari Dalmia,
Vinod Kumar Vats, Ram Chandra Khattri, Sudhir Singh Pawauya,
Dharmedra Singh Gurjar, Ram Narain Das, Ramji Gupta, Lalloo
Singh, Champat Rai Bansal, Om Prakash Pandey, Laxmi Narain F
Maha Tyagi, Vinay Kumar Rai, Kamlesh Tripathi, Gandhi Yadav,
Har Govind Singh, Vijay Bahadur Singh, Navin Bhai Shukla,
Ramesh Pratap Singh, Acharya Dharmendra Dev, Ms. Uma Bharti,
Ms. Sadhvi Ritambhra."
So far as question of conspiracy u/s 120-B ofIPC is concerned in G
that connection it is not necessary to have proved evidence because
a conspiracy is hatched in secrecy and the knowledge of this
conspiracy comes to the remaining accused gradually, slowly and
this knowledge is discernable from what becomes clear by their
speeches and by actions done by them. In regard to criminal
H
956 SUPREME COURT REPORTS [2017] 6 S.C.R.

A conspiracy has been propounded by theHon'ble Supreme Court
in case reported as Kehar Singh Vs. State of Delhi 1988 SCC
(Criminal) 711 where under whatever works are of conspiracy is
entrusted to a person he does not and a person does not have the
knowledge of the work done by another person till that work is
not completed. In such a conspiracy all the persons who are
B
connected with it they are held guilty for activities unlawfully done
in the cause of the conspiracy because all of them have taken a
decision to act in that way as has been propounded by ruling in
the following cases.
(I) Ajay Agarwal Vs. Union oflndia- 1993 SCC (Criminal) Page
c 961
(2) P. K. Narayan Vs. State of Kerala - (1995) SCC 142
(3) State ofMaharashtra Vs. Som Nath Thapar- 1996 Cr.l.J.2448
According to the decisions of the Hon 'ble Supreme Court as above,
D though Sri Kalyan Singh at the time of occurrence or accused
R.N. Srivastava and Sri D.B. Rai were not present even then
they are found prima facie guilty u/s 120-8 ofIPC because they
are public servants their act shall be deemed prima facie criminal.
Sri Kalyan Singh had given assurance before the National
E Integration Council for not demolishing the disputed structure and
the Hon'ble Supreme Court had permitted for only symbolic kar
sewa being performed. Sri Kalyan Singh had also said that he
will fully ensure the protection of Ram Janam Bhumi/Babri Masjid
structure and it will not be felled down, but he acted in opposition
to his assurances. Order was not given by Sri Kalyan Singh for
F utilizing the Central Force. From this it seems that prima facie
was a necessary participant in the criminal conspiracy.

In the above cases the Hon'ble Justice has clearly propounded
that if in one course of occurrence different offences are
G
committed by different accused then their examination can be
done conjointly. In the present case keeping in mind the criminal
conspiracy which was in regard in the felling of Ram Janam Bhumi/
Babri Masjid structure and in that context whatever acts have
been done shall be deemed to have been in the course of one
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 957
CM OF UP) & ORS. [R. F. NARIMAN, J.)

occurrence. Section 395, IPC was also about the criminal A
conspiracy for felling down ofBabri Masjid. It was done under
Sec.395 IPC which is in the course of one event and in that
connection there is evidence of PW-37 Sanjay Khare, PW-112
Mohan Sahai, PW-16 Om Mehta, PW-42 Pravin Jain and the news
item published in newspaper by the journalists like the statement B
of PW-38 Shard Chandra Pradhan, that when upto l.30 pm the
kar sewaks could not demolish the dome from above, they were
demolishing the walls from below and Vinay Katiyar and Lal
Krishna Advani, Murli Manohar Joshi and Ashok Singhal made
exhortations many a time that !l11 persons should get down from
the dome as it was on the point of falling down. It is the statement C
of PW-145 Ms. Latika Gupta that Sri Advani had made this
declaration that the C.RP.F. could come any time and hence all
should go and block the road to prevent it from coming. Smt.
Vijai Raje Scindia also asked the kar sewaks to come down when
the dome was being felled and on the stage there was distribution D
of sweets.
From the above discussion this conclusion is drawn that in the
present case the criminal conspiracy offelling down of the disputed
structure of Ram Janam Bhumi/Babri Masjid was commenced
by the accused from 1990 and it was completed on 06.12.1992
Sri Lal Krishan Advani and others at different times and at different E
places made schemes of criminal conspiracy of demolishing the .
above disputed structure. Hence I find prima facie basis on the
strength of evidence to charge accused S/Sri Bala Saheb
Thackeray, Lal Krishna Advani, Kalyan Singh, Ashok Singhal,
Vinay Katiyar, Moreshwar Save, Pawan Kumar Pandey, Brij F
Bhushan Saran Singh, Jai Bhagwan Goe, Ms. Uma Bharti, Ms.
Sadhwi Ritambhra, Maharaj Sarni Sakshi, Murli Manohar Joshi,
Giri Raj Kishore Vishnu Hari Dalmia, Cham pat Rai Bansal, Om
Prakash Pandey, Satish Pradhan Mahant Avaidh Nath, bharam
Das, Mahant Nritya Gopal Das, Maha Mandaleshwar Jagdish
Muni, Dr. Ram Vilas Vedanti, Baikunth Lal Sharma@ Prem Param G
Hans Ram Chandra Das, Smt. Vijay Raje Scindia, and Dr. Satish
Kumar Nagar for offences u/s 147/153-A/153-B/295-A/505 of
IPC read with Sec. 120-B ofIPC."

H
958 SUPREME COURT REPORTS [2017) 6 S.C.R.

A th
5. Criminal Revision Petitions were filed
th
against the order dated
9 September, 1997. By a Judgment dated 12 February, 200 I, delivered
by the High Court of Allahabad, Lucknow Bench, it was held:
th
(I) Notificat&on dated 8 October, 1993 amending the notification
dated 9 September, 1993 was invalid as there was no
B consultation with the High Court before issuing the said
notification. It is important to mention that the Court held that
this was a curable legal infirmity.
(2) Consequently the Special Court at Lucknow has no jurisdietion
to inquire into and to commit to the Court of Sessions FIR
c No.198 of 1992 against the aforesaid eight accused for the
three offences stated therein.
th
(3) The impugned order dated 9 September, I 997 for framing
charges under Sections I 53-A, I 53-B and 505 lPC was
without jurisdiction and liable to be set aside to this extent.
D (4) No illegality was committed by the Court below while taking
cognizance of a joint chargesheet on the ground that all the
offences were committed in the course of the same transaction
and to accomplish a criminal conspiracy. The evidence for all
the offences is almost the same and, therefo~e, these cannot
E be separated from each other irrespective of the fact that 49
different FIRs were lodged.
(5) The offences regarding criminal conspiracy and common object
of an unlawful assembly are prima facie made out and since
these offences are alleged to have been committed in the
course of the same transaction, the Special Court rightly took
F
cognizance of the same and committed the same to the Court
of Session.
th
(6) In all other respects, the impugned order dated 9 September,
1997 for the framing of charges, so far as 48 out of 49 cases
are concerned, for the offences of criminal conspiracy read
G
with other !PC offences, save and except the three !PC
offences against the eight accused persons aforesaid, was
upheld.
6. The CBI accepted the aforesaid Judgment and requested the
Chief Secretary, Government of UP to rectify the defect in the notification
H
STATE (THROUGH) CBI v. SHRJ KALYAN SINGH (FORMER 959
CM OF UP) & ORS. [R. F. NARIMAN, J.]
th th
dated 8 October, 1993 on 16 June, 2001. The thState Government . A
rejected the said request for curing the defect on 28 September, 2002.
This rejection was not challenged by the C.B.I.
7. Meanwhile an SLP was filed by one Mohd. Aslam qpas Bhure,
a public interest petitioner, challenging the ord11,r dated 12 February,
2001. This was dismissed by this Court on 29 November, 2002. ·na A B
review against this order was dismissed by a speaking Order dated 22th
March, 2007. A curative petition was also dismissed thereafter on 12
February, 2008.
th
8. From this it can be seen that the order dated 12 February,
2001 is final and can be regarded as res judicata. Given that the State c
Governgient rejected the request for curing the defect in the notification
dated 8 October, 1993, the CBI, instead of challenging the rejection,
filed a supplementary charge sheet against the 8 accused persons for
offences under Sections 153A, 153B, 505 read with Sections 147 and
149 IPC before the Judicial Magistrate at Rae Bareilly. Charges were
framed under these Sections against the said accused persons. Insofar D
as the other group of 13 persons is involved, again, for reasons best
known to the CBI, the CBI did not proceed against them at all.
th
9. By an order dated 4 May, 2001, the Special Court dropped
proceedings against 21 persons; namely, eight accused persons being
Mr. L.K. Advani, Mr. Ashok Singhal (deceased), Mr. Vinay Katiar, Ms. E
Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi, Mr.
Giriraj Kishore (deceased), Mr. Vishnu Hari Dalmia, and 13 accused
persons being Mr. Bala Saheb Thackeray (deceased), Mr. Kalyan Singh,
Mr. Moreshwar Save (deceased), Mr. Champat Rai Bansal, Mr. Satish
Pradhan, Mr. Mahant Avaidhyanath (deceased), Mr. Dharam Das, Mr. F
Mahant Nritya Gopal Das, Mr. Mahamadleshwar Jagdish Muni, Mr.
Ram Bilas Vadanti, Mr. Vakunth Lal Sharma @ Prem, Mr. Prama Hans
Ram Chandra Das (deceased) and Dr. Satish Chandra Nagar, taking
the view that there were two sets of accused - one, the Kar Sewaks
who actually demolished the Masjid, and others who were the instigators.
The Court thought that it was faced with two alternatives, and chose the G
lesser alternative of dropping the proceedings against these 21 persons
so that the proceedings against the Kt~r Sewaks could carry on. A revision
was filed against the order dated 4 May, 2001 before the Highnd Court
which led to the passing of the impugned Judgmt~nt dated 22 May,
2010. This Judgment upheld the Judgment dated 4 May, 2001 holding H
960 SUPREME COURT REPORTS [2017] 6 S.C.R.

A that there were two classes of accused, namely, leaders who were on
the dais exhorting the Kar Sewaks at 200 meters from the Masjid, and
the Kar Sewaks themselves. The nature of the accusations against
both was different and their involvement was for different criminal
offences. The submission on behalf of the CBI that the Lower Court
could not have discharged t,I accused persons as it would amount to
B
reviewing the order dated 9 September, 1997, was turned down. The
CBI also raised a plea that the embargo against prosecution was only
against 8 persons insofar as 3 offences and 3 offences alone concerning
Sections 15~A, 1538 and 505 IPC. It was held that the entire crime
recorded in FIR No.198 of 1992 would encompass Sections other than
C the 3 Sections mentioned and this plea was also, therefore, turned down.
Criminal conspiracy, according to the impugned judgment, was never
made out against the aforesaid 8 or 13 persons as otherwise the
supplementary charge sheet filed by the CBI at Rae Bareilly would
have included Section 1208 whjfh it did not. Turning down the CBI's
D plea that the judgment dated 12 February, 2001 had laid down that a
joint charge sheet on the ground that different offences were committed
in the course of the same transaction, and a plea that a prima facie case
h~d been made out of conspiracy, together with the fact that order dated
9 September, 1997 continues to survive qua all the other accused was
also turned down by the impugned judgment, holding :
E "Otherwise also the accusation/charge of conspiracy (under
Section 120-8 IPC) in respect of Sections 153-A, 153-8 and 505
IPC against accused of Crime No.198of1992 does not appear io
be of any significant consequence when Sections 147 and 149
IPC have already been added. ·
F Similarly if the accusation regarding criminal conspiracy punishable
under Section 120-8 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
G of 1992, have also to be same because they were also sharing the
same dais at Ram Katha Kunj with those 8 persons. Finally,
therefore, this submission also lacks merit."
10. It was further held that if the CBI had any evidence of
conspiracy it can file a supplementary charge sheet before the Court at
H Rae Bareilly which was seized of Crime No.198 of 1992. Holding that
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 961
CM OF UP) & ORS. [R. F. NARIMAN, J.]

from the very beginning two separate FIRs were filed because of two A
different places of occurrence and different nature of accusations, the
judgment then went on to impugn the CBI's preparing a joint charge-
sheet for all 49 FIRs and ultimately foung that there is no illegality or
impropriety in the impugned order dated 4 May, 2001. The High Court,
therefore, by the impugned order, dismissed the revision filed against the
8
said order.
11. Shri Neeraj Kaul, learned Addi. Solicitor General, appearing
on behalf of the CBI has argued before us that the imia,ugnedjudgment
has completely misinterpreted the judgment dated 12 February, 2001
and confirmed the dropping of proceedings against 21 accused persons
which could not be done. According to Shri Kaul, an artificial distinction C
was made by the impugned judgment between different kinds of offences
and offenders when, in point of fact, the 200 I judgment expressly upheld
the filing ofajoint charge sheet by CBI. He went on to contend thatthe
offence of conspiracy was already contained in the charges made in
FIR No.197 of 1992 before the Special Court, Lucknow and that it was D
for this reason that the Section 1208 charge was not added in the
supplementary charge sheet filed against the aforesaid 8 accused persons
at Rae Bare illy. This was completely missed by the impugned judgment,
.which mistakenly held that it was possible for the CBI to add the charge
of Section 1208 at Rae Bareilly. According to Shri Kaul, if this was
E
done then two different Special Courts would have to decide on the
same criminal conspiracy and might come to different conclusions
regarding the same, which is the basic infirmity in the impugned judgment.
He added that none of the aforesaid 21 accused persons should have
been dropped, and the CBI had filed a supplementary charge sheet at
Rae Bareilly against the 8 accused persons only because it wished to F
conclude the trial against them expeditiously, which could only have
happened if they were proceeded against at Rae Bareilly, since the Stat~
Government refused to cure the defect in the notification dated 8
October, 1993.
12. Shri K.K. Venugopal, learned senior counsel on behalf qf G
Respondent Nos.4 and 5, has argued that the judgment dated 12
February, 2001 cannot be reopened at this stage as the Supreme Court
has dismissed an appeal filed against it and has further dismissed a review
petition and a curative petition. The CBI cannot be allowed to re-agitate
what has been closed by the aforesaid judgment. Moreover, since the
H
962 SUPREME COURT REPORTS [2017] 6 S.C.R.

th
A order dated
th
4 May, 200 I merely implements the judgment and order
dated 12 Febru~,ry, 2001 and the impugned judgment upheld the said
judgment dated 4 May, 2001, CBI 's appeal ought to be dismissed. Since
the trial against the 8 accused is proceeding at Rae Bareilly, no question
of a joint trial before the Special Court at Lucknow can arise at this
stage in view of the final and binding dec,~sion of this Court dismissing
B
the appeal against the judgment dated 12 February, 2001. According
to learned senior counsel, Article 142 of the Constitution cannot be used
by this Court to transfer proceedings against the aforesaid 8 accused
persons from Rae Bareilly to Lucknow in view of the fact that the
fundamental rights guaranteed to the aforesaid 8 accused persons under
c Article 21 of the Constitution would otherwise be infringed inasmuch as
a right of appeal from the learned Magistrate, Rae Bareilly to the Sessions
Court would be taken away. The learned senior counsel also referred to
Section 407 (I) of the Cr.P.C. by which it was clear that an order of
transfer from one Special Judge to another within the same State would
D be covered by the aforesaid provision and could only be done by the
High Court of the concerned State in which both the lower Courts are
situated. Since Article 142 cannot be used against substantive provisions
oflaw, this would be a violation of Section 407 (I) which permits only
the High Court to transfer such a case. The learned senior counsel
referred to a number of judgments setting out that the powers of the
E Supreme Court under Article 142 cannot be used against a mandatory
substantive provision oflaw.
13. Shri Kapil Sibal, learned senior counsel appearing for the
Appellants in SLP (Cr!.) No.2705of2015 was permitted by us to argue
treating the SLP Petitioner as an intervenor. Consequently, he addressed
F us only on questions of law. According to learned senior counsel, this
Court ought to transfer the case pending at Rae Bare illy to Lucknow as
a joint charge sheet has been filed clubbing all the 49 FIRs, including
FIR No.198 of 1992. Nothing prevented this Court from using this
extremely wide power under Article 142 to do complete justice. He
further pointed out that any reliance on the judgment in A.R. Antulay v.
G R.S. Nayak & Another, (1988) 2 SCC 602, would be incorrect as the
said judgment was wholly distinguishable. According to him, on a reading
of Sections 216 and 223 of the Code, it is clear that the trial need not
begin de novo but that the witnesses already examined, both in Rae
Bareilly and in Lucknow, could be recalled for the limited purpose of
H cross-examination on charges that are now to be added.
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 963
CM OF UP) & ORS. [R. F. NARIMAN, J.]

14. We have heard the learned counsel
th
for the parties. We are of A
the view that the judgment dated 12 February, 2001, clearly and
unequivocally held that a joint charge sheet had been filed by the CBI on
the ground that all the offences were committed in the course of the
same transaction to accomplish the conspiracy alleged. The evidence
for all these offences is almost the same and these offences, therefore, B
cannot be separated from each other, irrespective of the fact that 49
different FIRs were lodged. It is clear that in holding to tge contrary, the
impugned judgment, which upheld the judgment dated 4 May, 200 I, is
clearly erroneous. Also, we agree with Mr. Neeraj Kaul that the offence
of criminal conspiracy is already there in the joint charge sheet filed by
the CBI against all the named accused, which includes the 21 accused C
who have been discharged. That being the case, it is clear that the said
accused could not possibly have been discharged, as they were already
arrayed as accused insofar as the charge of criminal conspiracy was
concerned, which would be gone into by the Special Judge, Lucknow,
while dealing with the offences made out in FIR No.197of1992. In this D
regard also, we are of the view that the impugned judgment in holding to
the contrary is not correct.
15. The impugned judgment also artificially divided offences and
orr~nders into two groups which did not follow from the judgment dated
12 February, 2001. On the contrary, the said judgment having upheld
the joint charge sheet and having prima facie found a case of criminal E
conspiracy being made out, this could not have been held contrary to the
said judgment. Further, the impugned judgment contradicts itself when
it says that the 21 accused persons form one group in several places,
whereas the very same judgment in paragraph 31 thereof clearly made
a distinction between the 8 accused and the other group of 13 accused. F
It went on to say:
"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 G
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 (sic) along with other
leaders."
H
964 SUPREME COURT REPORTS [2017) 6 S.C.R.

A 16. The aforesaid conclusion militates against what was repeatedly
said by the impugned judgment in several places, and it is clear that l 3
persons were not physically present on the dais along with the other~
accused persons. It is clear from a reading of the judgment dated 12
February, 2001, that the High Court expected that the defect noticed in
the notification would be cured soon after the delivery of the judgment in.
B
which case a joint trial would have proceeded. This, however, did not
happen, because the CBI did not challenge the rejection of the request
to cure this technical defect. Instead the course taken by the CBI has
caused great confusion. The filing of the supplementary charge sheet
against 8 accused persons which is going on separately at Rae Bareilly
c and the dropping altogether of il1
charges against the 13 accused persons,
after the Judgment dated 12 February, 2001 has completely derailed
the joint trial envisaged and has resulted in a fractured prosecution going
on in two places simultaneously based on a joint charge sheet filed by
the CBI itself. In order to remedy what ought to have been done by the
D State Government in 2001 by curing the technical def~pt pointed out by
the High Court of Allahabad in the judgment dated 12 February, 2001,
we are of the view that the best course in the present case would be to
transfer the proceedings going on at Rae Bareilly to the Court of Sessions
at Lucknow so that a joint trial of all the offences mentioned in the joint
charge sheet filed by the CBI against the persons named could proceed.
E In our view, since the charge of criminal conspiracy against all 21 accused
is already in the joint charge sheet filed by the CBI at Lucknow, this
charge could be added to the charges already framed against the survivors
of the group of8 accused. As against the survivors of the group of 13,
Penal Code offences mentioned in the joint charge sheet also need to be
added. In our opinion, there is no need for a de nova trial inasmuch as
F
the aforesaid charges against all 21 accused persons can conveniently
be added under Section 216 of the Code of Criminal Procedure in the
ongoing trial. No prejudice will be caused to the accused as they have
the right to recall witnesses already examined either in Rae Bareilly or
in Lucknow for the purpose ofcross-examination. The Court of Sessions
G at Lucknow will have due regard to Section 217(a) of the Code of
Criminal Procedure so that the right to recall is not so exercised as to
unduly protract the trial.
17. It remains to deal with some of the arguments by Shri K.K.
Venugopal, learned senior counsel. According to learned senior counsel,
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 965
CM OF UP) & ORS. [R. F. NARIMAN, J.]

our powers under Article 142 cannot be used to supplant the law. Article A
142 is set out hereunder:
"142. Enforcement of decrees and orders of Supreme Court
and orders as to discovery, etc.--(!) The Supreme Court in
the exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in any cause B
or matter pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory oflndia in such
manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.
c
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the
territory oflndia, have all and every power to make any order for
the purpose of securing the attendance of any person, the discovery
or production of any documents, or the investigation or punishment
of any contempt of itself." D
18. A number ofjudgments have been cited including the celebrated
Supreme Court judgment in Supreme Court Bar Association v. Union
oflndia & Another, 1998 (4) SCC 409, in which a Constitution Bench
of this Court held that Article 142 cannot authorize the Court to ignore
the substantive rights of a litigant while dealing with the cause pending· E
before it and cannot be used to supplant the substantive law applicable·
to the cause before this Court. A· large number of other judgments
following this judgment were also cited. It is necessary only to refer to
a recent judgment in State of Punjab v. Rafiq Masih, (2014) 8 SCC
883, in which this Court held: F
"Article 142 of the Constitution oflndia is supplementary in nature
and cannot supplant the substantive provisions, though they are
not limited by the substantive provisions in the statute. It is a power
that gives preference to equity over law. It is a justice-oriented
approach as against the strict rigours of the law. The directions G
issued by the Court can normally be categorised into one, in the
nature of moulding of relief and the other, as the declaration of
law. "Declaration of law" as contemplated in Article 141 of the
Constitution: is the speech express or necessarily implied by the
highest court of the land. This Court in Indian Bank v. ABS
H
966 SUPREME COURT REPORTS [2017] 6 S.C.R.

A Marine Products (P) Ltd. [(2006) 5 SCC 72] , Ram Pravesh
Singh v. State ofBihar [(2006) 8 SCC 381 : 2006 SCC (L&S)
1986] and in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC
667 : 2006 SCC (L&S) 190] has expounded the principle and
extolled the power of Article 142 of the Constitution oflndia to
new heights by laying down that the directions issued under Article
B
142 do not constitute a binding precedent unlike Article 141 of the
Constitution ofindia. They are direction (sic) issued to do proper
justice and exercise of such power, cannot be considered as law
laid down by the Supreme Court under Article 141 of the
Constitution of India. The Court has compartmentalised and
c differentiated the reliefin the operative portion of the judgment
by exercise of powers under Article 142 of the Constitution as
against the law declared. The directions of the Court under Article
142 of the Constitution, while moulding the relief, that relax the
application oflaw or exempt the case in hand from the rigour of
the law in view of the peculiar facts and circumstances do not
D
comprise the ratio decidendi and therefore lose its basic premise
of making it a binding precedent. This Court on the qui vive has
expanded the horizons ofArticle 142 of the Constitution by keeping
it outside the purview of Article 141 of the Constitution and by
declaring it a direction of the Court that changes its complexion
E with the peculiarity in the facts and circumstances of the case."
[para 12]
19. Article 142(1) of the Constitution ofindia had no counterpart
in the Government ofindia Act, 1935 and to the best ofour knowledge,
does not have any counterpart in any other Constitution world over. The
F Latin maximfiatjustitia ruat cadum is what first comes to mind on a
reading of Article 142 - Let justice be done though the heavens fall. 1
This Article gives a very wide power to do complete justice to the parties
before the Court, a power which exists in the Supreme Court because
the judgment delivered by it will finally end the litigation between the
parties. It is important to notice that Article 142 follows upon Article
G 141 of the Constitution, in which it is stated thatthe law declared by the
'This maxim was quoted by Lord Mansfield in R. v. Wilkes, (1770) 4 Burr 2527:
(1558-1774) All ER Rep. 570. The passage in which it is quoted makes interesting
reading, and among the many other things stated by that great Judge, it is stated : 'l
wish POPULARITY: but it is that popularity which follows; not that which is run
after. It is that popularity which, sooner or later, never fails to do justice to the pursuit
H ofnoble ends, by noble means.'
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 967
. CM OF UP) & ORS. [R. F. NARIMAN, J.]

Supreme Court shall be binding on all Courts within the territory oflndia. A
Thus, every judgment delivered by the Supreme Court has two
components - the law declared which binds Courts in future litigation
between persons, and the doing of complete justice in any cause or
matter which is pending before it. It is, in fact, an Article that turns one
of the maxims of equity on its head, namely, that equity follows the law.
B
By Article 142, as has been held in the State of Punjab judgment,
equity has been given precedence over law. But it is not the kind of
equity which can disregard mandatory substantive provisions of law when
the Court issues directions under Article 142. While moulding relief, the
Court can go to the extent ofrelaxing the application off aw to the parties
or exempting altogether the parties from the rigours of the law in view C
of the peculiar facts and circumstances of the case. This being so, it is
clear that this Court has the power, nay, the duty to do complete justice
in a case when found necessary. In the present case, crimes which
shake the secular fabric of the Constitution oflndia have allegedly been
committed almost 25 years ago. The accused persons have not been D
brought to book largely because of the conduct of the CBI in not pursuing
the prosecution of the aforesaid alleged offenders in a joint trial, and
because of technical defects which were easily curable, but which were
not cured by the State Government. Almost 25 years have gone and yet
we are solemnly reminded that Respondent Nos.4 and S's fundamental
rights should not be curtailed by any order passed under Article 142. E
When asked what these rights were, we were referred to the judgment·
in Antulay's case (supra) for the proposition that if transfer of the case
against Respondent Nos.4 and 5 is made from Rae Bareilly to Lucknow,
one right of appeal would be taken away inasmuch as the transfer would
be from a Magistrate to a Court of Sessions.
F
20. This contenfilon would not have been available if, shortly after
the judgment dated 12 February, 2001, the State Government had cured
the defect by issuing another notification after consulting the High Court.
Equally, if the refusal of the State Government to cure this technical
defect had been challenged by the CBI in the High Court, and set aside
with a direction to issue a notification curing the defect, a joint trial at G
Lucknow would have been well on its way and may even have been
concluded by now. No selective supplementary charge sheet filed by
the CBI at Rae Bareilly splitting the trial would then have been necessary.
What is being done by us today is only to remedy what was expected by
H
968 SUPREME COURT REPORTS (2017] 6 S.C.R.

A the All~bad High Court to have been done shortly after its Judgment
dated 12 February, 2001.
21. In the Antulay judgment, Section 7(1) of the Criminal Law
Amendment Act, 1952, was under consideration. Section 7(1) is
reproduced herein below:
B "7. Cases triable by Special Judges.- (1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1898 (5 of
1898), or in any other law the offences specified in sub-section
(1) of Section 6 shall be triable by Special Judges only."
22. The majority judgment ofMukharji, J., in paragraph 24, adverts
c to this section and emphasises the fact that only Special Judges are to
try certain offences, notwithstanding anything contained in the Criminal
Procedure Code. There is no such provision in the facts of the present
case. In point of fact, Section 11(1) proviso of the Code of Criminal
Procedure only states that the State Government may establish for any
D local area one or more Special Courts, and where such Special Court is
established, no other court in the local area shall have jurisdiction to try
the case or classes of case triable by it. Conspicuous by its absence is
a non obstante clause in Section 11.
23. In paragraph 34, Mukharji, J. stated that Sections 406 and 407
E were covered by the non-obstante clause in Section 7( 1). This would
mean that the High Court under Section 407 could not transfer a case to
itself as provided under Section 407(1 ). It is in this context that it is
stated that the right of appeal to the High Court from the Special Court
is taken away, violating the procedure established by law under Article
21. Also, for this reason, in paragraph 38 of the said judgment it is stated
F that the order of the Supreme Court transferring cases from the Special
Judge to the High Court is not authorised by law. Also, the further right
to move the High Court by way of revision or first appeal under Section
9 of the said Act was therefore taken away. In the present case, assuming
that the High Court were to exercise the power of transfer under Section
G 407, the High Court could have transferred the case pending at Rae
Bareilly and/or at Lucknow to itself under Section 407 ( 1) and (8). The
absence of a non-obstante clause under Section 11(1) proviso of the
Criminal Procedure Code thus makes it clear that Article 21 in the facts
of the present case cannot be said to have been infringed, as even a
transfer from a subordinate court to the High Court, which would
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 969
CM OF UP) & ORS. [R. F. NARIMAN, J.]

undoubtedly take away the right of appeal, is itself envisaged as the A
'procedure established by law' under Section 407 of the Criminal
Procedure Code.
24. In the present case, the power of transfer is being exercised
to transfer a case from one Special Judge to another Special Judge, and
not to the High Court. The fact that one Special Judge happens to be a B
Magistrate, whereas the other Special Judge has committed the case to
a Court of Sessions would not make any difference as, as has been
stated hereinabove, even a right of appeal from a Magistrate to the
Sessions Court, and from the Sessions Court to the High Court could be
taken away under the procedure established by law, i.e., by virtue of
Section 407 ( 1) and (8) if the case is required to be transferred from the C
Magistrate at Rae Bareilly to the High Court itself. Hence, under Section
407, even if 2 tiers of appeal are done away with, there is no infraction
of Article 21 as such taking away of the right of appeal is expressly
contemplated by Section 407(l)(iv) read with Section 407(8). In the
circumstances, Antuiay's judgment which dealt with the right of a D
substantive appeal from a Special Judge to the High Court being taken
away by an order of transfer contrary to the non obstante clause in
Section 7(1) of the Criminal Law Amendment Act, 1952 would not apply
in the facts and circumstances before us.
25. That Article 142 can be used for a procedural purpose, namely, E
to transfer a proceeding from one Court to another does not require
much argument. However, Shri Venugopal relied upon Sections 406
and 407 of the Criminal Procedure Code, which are set out hereinbelow:
"406. Power of Supreme Court to transfer cases and
appeals.- (1) Whenever it is made to appear to the Supreme F
Court that an order under this section is expedient for the ends of
justice, it may direct that any particular case or appeal be
transferred from one High Court to another High Court or from a
Criminal Court subordinate to one High Court to another Criminal
Court of equal or superior jurisdiction subordinate to another High
Court. G
(2) The Supreme Court may act under this section only on the
application ofthe Attorney-General oflndia or of a party interested,
and every such application shall be made by motion, which shall,
except when the applicant is the Attorney-General oflndia or the
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970 SUPREME COURT REPORTS [2017] 6 S.C.R.

A Advocate-General of the State, be supported by affidavit or
affirmation.
(3) Where any application for the exercise of the powers conferred
by_ this section is dismissed, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the
B applicant to pay by way of compensation to any person who has
opposed the application such sum not exceeding one thousand
rupees as it may consider appropriate in the circumstanc_es of the
case.
407. Power of High Court to transfer cases and appeals.-
C ( 1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any
Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to
arise, or
D
(c) that an order under this section is required by any provision of
this Code, or will tend to the general convenience of the parties or -
witnesses, or is expedient for the ends of justice,
it may order-
E (i) that any offence be inquired into or tried by any Court not
qualified under Sections 177 to 185 (both inclusive), but in other
respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals,
be transferred from a Criminal Court subordinate to its authority
F to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of
Session; or
(iv) that any particular case or appeal be transferred to and tried
before itself.
G
(2) The High Court may act either on the report of the lower
Court, or on the application of a party interested, or on its own
initiative:
Provided that no application shall lie to the High Court for
transferring a case from one Criminal Court to another Criminal
H
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 971
CM OF UP) & ORS. [R. F. NARIMAN, J.]

Court in the same sessions division, unless an application for such A
transfer has been made to the Sessions Judge and rejected by
him.
(3) Every application for an order under sub-section (1) shall be
made by motion, which shall, except when the applicant is the
Advocate-General of the State, be supported by affidavit or B
affirmation.
(4) When such application is made by an accused person, the
High Court may direct him to execute a bond, with or without
sureties, for the payment of any compensation which the High
Court may award under sub-section (7). c
(5) Every accused person making such application shall give to
the Public Prosecutor notice in writing of the application, together
with a copy of the grounds on which it is made; and no order shall
be made on the merits of the application unless at least twenty-
four hours have elapsed between the giving of such notice and D
the hearing of the application.
(6) Where the application is for the transfer of a case or appeal
from any subordinate Court, the High Court may, if it is satisfied
that it is necessary so to do in the interests of justice, order that,
pending the disposal of the application, the proceedings in the E
subordinate Court shall be stayed, on such terms as the High Court
may think fit to impose:
Provided that such stay shall not affect the subordinate Court's
power ofremand under Section 309. '
(7) Where an application for an order under sub-section ( 1) is F
dismissed, the High Court may, if it is of opinion that the application
was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such
sum not exceeding one thousand rupees as it may consider proper
in the circumstances of the case.
G
· (8) When the High Court orders under sub-section (I) that a case
be transferred from any Court for trial before itself, it shall observe
in such trial the same procedure which that Court would have
observed ifthe case had not been so transferred.

H
972 SUPREME COURT REPORTS [2017) 6 S.C.R.

A (9) Nothing in this section shall be deemed to affect any order of
Government under Section 197."
26. According to Shri Venugopal, the Supreme Court's power under
Section 406 is circumscribed by transfer taking place only from a Criminal
Court subordinate to one High Court to another Criminal Court of equal
B or superior jurisdiction subordinate to another High Court. ·clearly Section
406 does not apply to the facts of the present case as the transfer is
from one Criminal Court to another Criminal Court, both subordinate to
the same High Court. This being the case, nothing prevents us from
utilizing our power under Article 142 to transfer a proceeding from one
Criminal Court to another Criminal Court under the same High Court as
c Section 406 does not apply at all. Learned senior counsel went on to
add that such a power is exercisable only under Section 407 by the High
Court and not this Court. Again, the fact that the High Court has been
given a certain power of transfer under the Code of Criminal Procedure
does not detract from the Supreme Court using a constitutional power
D under Article 142 to achieve the same end to do complete justice in the
matter before it. In the present case, there is no substantive mandatory
provision which is infracted by using Article 142. This being the case,
both grounds taken by Shri Venugopal are without substance.
!h
27. We have been shown a judgment of the High Court dated 8
E December, 2011, in which the matter proceeding at Rae Bareilly was to
be proceeded with on a day-to-day basis until it is concluded; We have
been told that this has only been followed in the breach as less than a
hundred witnesses have yet been examined. Any number of
adjournments been taken by the CBI as well as the other persons. One
other disturbing feature is the fact that the Special Judge designated by
F the notification to carry on the trial at Rae Bareilly has been transferred
a number of times, as a result of which the matter could not be taken up
on the dates fixed. This being the case, while allowing the appeal of the
CBI and setting aside the impugned judgment, we issue the following
directions: . ·
G i. The proceedings viz. Crime No. 198/92, RC. l(S)/92/SIC-IV/
ND in the Court of the Special Judicial Magistrate at Rae
Bareilly will stand transferred to the Court of Additional
Sessions Judge (Ayodhya Matters) at Lucknp~-
ii. The Court of Sessions will frame an additional charge under
H Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar,
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER 973
CM OF UP) & ORS. [R. F. NARIMAN, J.]

Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar A
Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions will
frame additional charges under Section 120-B and the other
provisions of the Penal Code mentioned in the joint charge
sheet filed by the CBI against M·r. Champat Rai Bansal, Mr.
Satish Pradhan, Mr. Dharam Das, Mr. Mahant Nritya Gopal
B
Das, Mr. Ram Bilas Vadanti and Mr. Vaikunth Lal Sharma@
Prem. Mr. Kalyan Singh, being the Governor ofRajasthan, is
entitled to immunity under Article 361 of the Constitution as
long as he remains Governor of Rajasthan. The Court of
Sessions will frame charges and move against him as soon as
he ceases to be Governor. c
iii. The Court.of Sessions will, after transfer of the proceedings
from Rae Bareilly to Lucknow and framing of additional
charges, within four weeks, take up all the matters on a day-
to-day basis from the stage at which the trial proceedings,
both at Rae Bareilly and at Lucknow, are continuing, until D
conclusion of the trial. There shall be no de novo trial. There
shall be no transfer of the Judge conducting the trial until the
entire trial concludes. The case shall not be adjourned on any
ground except when the Sessions Court finds it impossible to
carry on the trial for that particular date. ln such an event, on
grant of adjournment to the next day or a closely proximate . E
date, reasons for the same shall be recorded in writing.
iv. The CBI shall ensure that on every date fixed for evidence,
some prosecution witnesses must remain present, so that for
want of witnesses the matter be not adjourned.
F
v. The Sessions Court will complete the trial and deliver the
judgment within a period of 2 years from the date of receipt
of this judgment.
vi. We make it clear that liberty is given to any of the parties
· before the Sessions Court to approach us in the event of these G
directions not being carried out, both in Jetter and in spirit.
28. The appeal is disposed of accordingly.

Ankit Gyan Appeal disposed of.

H