The Telegraph
Since 1st March, 1999
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Govt blames charge merger
- FIR did not accuse Advani of conspiracy, claims Jaitley

New Delhi, July 26: The first chargesheet Uttar Pradesh police filed in the Lalitpur trial court in Rae Bareli against L.K. Advani and seven others in the Babri demolition case did not contain the charge of criminal conspiracy under Section 120 B of the Indian Penal Code.

Union law minister Arun Jaitley had based his argument in Parliament last week on this. He had said there was no question of the CBI dropping any charge against Advani, Murli Manohar Joshi, Uma Bharti and others in the case.

According to Jaitley’s defence sent to the Lok Sabha Speaker, even FIR no.198 filed against Advani and others did not have the charge of criminal conspiracy under Section 120 B of the IPC.

Jaitley said there were two FIRs filed on December 6, 1992, the day the mosque was demolished. As FIR no. 197 did not pertain to Advani and other leaders, a second FIR — no. 198 — was filed to include their names. It did not contain the charge of criminal conspiracy under Section 120 B.

On December 13, 1992, FIR no. 197 was referred to the CBI. As FIR no. 198 was not referred to the CBI, investigations were carried out by Uttar Pradesh police and a chargesheet filed at the Lalitpur trial court on February 27, 1993. Even in this chargesheet there was no criminal conspiracy charge against Advani and the others under Section 120 B.

In short, in FIR no. 197 and 198 the chargesheets were different, the accused were different, the investigating agencies were different and the courts where the chargesheets were filed were also different.

According to Jaitley’s reply in Parliament, “curiously” FIR no. 198 was handed over to the CBI which was “unprecedented” in criminal law history as the local police, after investigation, had already filed the chargesheet on the same FIR.

But the CBI then chose to go ahead with this FIR also and sought to merge the chargesheets relating to both FIRs no. 197 and 198. But to do this, a notification from the government under Section 11 of the Criminal Procedure Code and the permission of the high court was required.

The then Uttar Pradesh governor, Moti Lal Vora, declined to issue such a notification. The state was then under President’s rule, so the governor had to take a decision in the matter. The high court’s permission was also not taken.

Allahabad High Court had quashed this “merged” chargesheet on the ground that there was no notification under Section 11 of the CrPC constituting a special court to try the case. The high court had then asked the CBI to “rectify” this error (of non-issuance of notification).

According to Jaitley, the governor’s adviser on September 9, 1993, gave a detailed opinion that it was “prima facie” difficult to agree that once a chargesheet has been filed against an accused before a particular judge, the same could be allowed to be filed before another special judge.

“The illegal attempt to introduce Section 120 B (for criminal conspiracy) against Shri Advani is foiled by the refusal of the governor’s adviser to agree to a notification under Section 11 of CrPC,” according to Jaitley’s reply sent to the Speaker.

The “effort to introduce Section 120-B having failed”, a “unique procedure unknown to law is now adopted without the consent of the governor and obviously without the permission of the high court. An illegal notification under Section 11 is issued transferring Advani’s case and allowing it to be subsumed by the Lucknow charge sheet”, Jaitley said in his reply to the Speaker.

In this manner, the “lesser” charges of FIR no. 198 were merged with the “larger” charges of FIR no. 197 without following proper and legally laid down procedure. So, “what do the facts reveal'” Jaitley asked. First, the FIR against Advani did not charge him under Section 120 B. Second, the first chargesheet against Advani (filed by the Uttar Pradesh police) did not charge him under Section 120 B. Third, an effort was made to subsume this chargesheet into a larger chargesheet at Lucknow where he could be charged under Section 120 B.

For this, the high court’s consent was not taken and the governor had refused to issue the notification under Section 11 of the CrPC. Hence, the high court had set aside the chargesheet. After a Supreme Court order, a notification was issued and the case began again at Rae Bareli.

According to Jaitley, this did not amount to dropping of any charge as the original chargesheet had contained no charge of criminal conspiracy against Advani and the one “foisted” by “illegally” merging two different FIRs was quashed by the high court.

He said the “desire to introduce Section 120 B surreptitiously and illegally was actually foiled” in the case.

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