Author: Akshaya Mukul
Publication: The Times of India
Date: May 21, 2001
On Monday the Lucknow bench of the
Allahabad high court will hear a public interest litigation over the Ayodhya
notification.
The accused in the demolition case
include L.K. Advani, M.M. Joshi, Ashok Singhal, Giriraj Kishore, V.H. Dalmia,
Vinay Katiyar, Uma Bharati and Sadhavi Rithambara.
On February 12, 1992, Justice Jagdish
Bhalla of the Lucknow bench of the Allahabad high court rejected most of
the 12 contentions urged before it by the revision petitioners. But the
judge accepted their contention that the order purporting transfer of crime
no. 198 of 1992, dated October 8, 1993 which was an amendment of the September
9, 1993 order - to the court of the additional chief judicial magistrate,
Lucknow, suffered from a technical defect. 'The order was not issued by
the state government in consultation with the Allahabad high court as is
required under section 11 of the Criminal Procedure Code, 1973. Justice
Bhalla therefore in his order said that the special court at Lucknow had
"no jurisdiction to take cognizance, commit and try the case relating to
crime no. 198 of 1992".
However, he had observed that the,
"mistake committed by the government in issuing the October 8, 1993 notification
is curable and it is open to the state government, if they so desire to
rectify its mistake/ illegality by issuing fresh notification after consultation
with the high court in accordance with law".
The-petition makes the plea that
the order of September 9, 1993 clearly mentioned that all cases arising
out of the demolition of the disputed structure of Babri Masjid will be
heard by a single judge and as many as 48 crime numbers were listed by
it. "The failure to include crime no. 198 of 1998 was clearly an inadvertence
and a clerical error," it pleads and further argues that in order to rectify
this mistake the state government did issue an amended notification on
October 8, 1993 to include crime no. 198.
"The failure to consult the High
Court of Allahabad before issuing the said amending notification may also
be an inadvertent error," the PIL contends.
Referring to Justice Bhalla's judgement
which also found a prima-facie case against all the accused in all the
crimes including crime no. 198, the PIL pleads that the said persons concerned
should be tried and dealt with in accordance with law. Earlier on September
9, 1997 the additional sessions judge (Ayodhya Prakaran) passed an order
for framing charges against the accused persons of crime no. 198 of 1992
and those accused in crime no. 197 of 1992 and in other related cases.
PIL also pleads that "elementary
justice requires that persons accused of a grave crime should not escape
conviction or trial on technical grounds and must, if guilty, be convicted
and if innocent, acquitted". In addition, the PIL highlights two other
aspects, One, the crime committed is of such a grave magnitude as to flout
the basic principles - secularism and rule of law - of the Constitution
and has affected relations between the communities and has already led
to enormous suffering and hardship. Second, since the accused in crime
no. 198 hold positions of power "it is imperative not only that such persons
should not be able to avoid the consequences of their actions and be treated
as above the law or even appear to be treated as above the law".
