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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".