# STATE (THROUGH) CENTRAL BUREAU OF INVESTIGATION v. SHRI KALYAN SINGH (FORMER CM OF UP) & ORS

- **Citation:** [2017] 6 S.C.R. 946
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal No. 75 I of 2017
- **Bench:** Pinaki Chandra Grose, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-through-central-bureau-of-investigation-v-shri-kalyan-singh-former-cm-of-32035
- **Pages:** 28

## Headnote

'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 -
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
F
seeking amendment( of inserting second FIR and trying 49 cases
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
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 of proceedings against 21 accused was totally
erroneous - Said accused could not possibly have been discharged,
8
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
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
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
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
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to the Sessions Court and from the Sessi

## Text

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[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
c
[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 -
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
F
seeking amendment( of inserting second FIR and trying 49 cases
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
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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
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 of proceedings against 21 accused was totally
erroneous - Said accused could not possibly have been discharged,
8
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
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
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
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
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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 of Art.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
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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.
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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
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
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
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
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
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
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
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
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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
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
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
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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
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SUPREME COURT REPORTS
[2017] 6 S.C.R.
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 crossexamination. The Court of Sessions 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. [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
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
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
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
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
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
Government.
[Para 19) [966-F-G; 967-A-E]
STATE (THROUGH) CBI v. SHRI KALYAN SINGH (FORMER
CM OF UP) & ORS.
3.2 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 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
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
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]
951
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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
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,
F
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
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;
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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
B
27) [972-G-H; 973-A-G]
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.
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Case Law Reference
[1988] 1 Suppl. SCR 1 ·
[1998) 2 SCR 795
(2014] 8 SCR 228
held. ktapplicable
referred to
referred to
Para 13
Para 18
Para18
. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
751 of 2017.
From the Judgment and Order dated 20.05.2010 of the High Court
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
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,
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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
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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
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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.
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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
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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,
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SUPREME COURT REPORTS
[2017] 6 S.C.R.
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
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,
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,
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
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.
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3. On 8 October, 1993, the State Government amended the
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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
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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 against the 8 persons mentioned hereinabove
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in the year 1996 at Lucknow. On 9 September, 1997, the Special Judge,
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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
worth setting out parts of this order which read as fo.llows:
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"There seems to be a prima facie case for offences u/s 14 7 I I 53A/153-B/295/295-A/505 read with u/s 149 !PC against accused
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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
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
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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
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
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."
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So far as question of conspiracy u/s 120-B ofIPC is concerned in
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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
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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
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
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,
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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
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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
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utilizing the Central Force. From this it seems that prima facie
was a necessary participant in the criminal conspiracy.
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In the above cases the Hon'ble Justice has clearly propounded
that if in one course of occurrence different offences are
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
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
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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
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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
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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
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Sri Lal Krishan Advani and others at different times and at different
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
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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
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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."
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5. Criminal Revision Petitions were filed against the order dated
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9 September, 1997. By a Judgment dated 12 February, 200 I, delivered
by the High Court of Allahabad, Lucknow Bench, it was held:
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(I) Notificat&on dated 8 October, 1993 amending the notification
dated 9 September, 1993 was invalid as there was no
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
No.198 of 1992 against the aforesaid eight accused for the
three offences stated therein.
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(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.
( 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
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
cognizance of the same and committed the same to the Court
of Session.
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(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
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
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STATE (THROUGH) CBI v. SHRJ KALYAN SINGH (FORMER
959
CM OF UP) & ORS. [R. F. NARIMAN, J.]
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dated 8 October, 1993 on 16 June, 2001. The State Government
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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. A
B
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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.
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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
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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.
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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.
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.
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.
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The Court thought that it was faced with two alternatives, and chose the
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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 High Court
nd
which led to the passing of the impugned Judgmt~nt dated 22
May,
2010. This Judgment upheld the Judgment dated 4 May, 2001 holding
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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
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could not have discharged t,I accused persons as it would amount to
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
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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
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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 :
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"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. ·
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
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
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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
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different places of occurrence and different nature of accusations, the
judgment then went on to impugn the CBI's preparing a joint chargesheet 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
said order.
8
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
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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
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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
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
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.
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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
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order dated 4 May, 200 I merely implements the judgment and order
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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
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
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
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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
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referred to a number of judgments setting out that the powers of the
Supreme Court under Article 142 cannot be used against a mandatory
substantive provision oflaw.
13.