Justice Rohinton Nariman, who made remarks about reviving criminal conspiracy charge against L.K. Advani and other leaders, was heading a Bench in court 13.

Justice Rohinton Nariman, who made remarks about reviving the criminal conspiracy charge against BJP veteran L.K. Advani and other top leaders, including Union Minister Uma Bharti, during the previous hearing of the Babri Masjid demolition case, was not a part of the Supreme Court Bench on Wednesday.

On March 6, Justice Nariman, who was sitting as a judge along with Justice P.C. Ghose, remarked that “there was something peculiar going on in this case” and opened the floor for initiating a debate on reopening the criminal conspiracy charge against BJP leaders. The court was hearing a CBI appeal against the dropping of the conspiracy charge against them.

On Wednesday, the Bench was sitting in a combination of Justices Ghose and the newly-appointed Justice Dipak Gupta.

Justice Rohinton Nariman was heading a Bench in court 13 with Justice P.C. Pant.

When the Babri matter came up for hearing, Justice Ghose said the case may be adjourned as it was part-heard.

“My brother [J. Nariman] is not present. The case is part-heard,” Justice Ghose said.

Senior advocate K.K. Venugopal, appearing for Mr. Advani, asked the case to come up after four weeks.

“That would be in May...” Justice Ghose disapproved. The judge is retiring on May 27.

Justice Ghose then agreed to hear the matter on March 23 with Justice Nariman by his side on the Bench.

The sudden turn of events on March 6 came on an appeal filed by the CBI in 2011, during the UPA era, in the Supreme Court against the dropping of the conspiracy charge against Mr. Advani and other leaders like Ms. Bharti, Murli Manohar Joshi, Vinay Katiyar, Sadvi Ritambara, Giriraj Kishore and Vishnu Hari Dalmia.

“We prima facie do not approve of the way these people have been discharged... And no additional charge sheet filed so far? See, people cannot be discharged like this on technical grounds,” Justice Nariman observed orally then.

“We will allow you [CBI] to file supplementary charge sheet by including the conspiracy charge. We will ask the trial court to conduct a joint trial in a Lucknow court,” he said.

The CBI, represented by Additional Solicitor General Neeraj Kishan Kaul, had seemed to agree with the court's observations and submitted that a joint trial should be conducted.

However, Mr. Venugopal strongly objected to the turn of events and argued that the conspiracy charge against Mr. Advani and other leaders were already dropped, and its revival would mean the reexamination of the 186 witnesses who had deposed in the case. Mr. Venugopal pointed out that the CBI had appealed the Supreme Court after an inordinate delay.

But the Bench remained adamant.

The Babri Masjid demolition case stemmed from two crime files: Crime No: 197/1992 and Crime No: 198/1992. Both were filed shortly after the disputed structure of Babri Masjid was demolished on December 6, 1992.

Crime no. 197/1992 was registered in the Ayodhya Police Station against “lakhs of unknown kar sevaks”. This FIR dealt with the actual demolition of the masjid. It lined up a bunch of serious offences, including robbery or dacoity with attempt to commit murder,causing hurt by an act endangering life or safety of others, deterring public servants from doing duty and promoting enmity between different religious groups. The most severe of these offences could get the offender up to 10 years in jail.

The second one, Crime no. 198/1992, was registered against 12 persons, including Ashok Singhal, Mr. Giriraj Kishore, Mr. Advani, Mr. Joshi, Mr. Dalmiya, Mr. Katiyar, Ms. Bharati and Sadhvi Ritambara, who were on the dais at the ''Ram Katha Kunj'' when the masjid was being demolished.

They were accused of promoting enmity, making imputations and assertions prejudicial to national integration and statements conducing to public mischief. Maximum punishment, if found guilty for these offences, was up to five years'’ imprisonment. The cases are being tried in courts in Lucknow and Rae Bareilly, respectively.

The CBI took over Crime 197 in Lucknow, while 198 remained with the State CID in Rae Bareilly. Eventually 198 also got transferred to the CBI and began being heard in the Lucknow court.

Now, with the CBI investigating both crimes as one, a joint charge sheet was filed on October 5, 1993 accusing Mr. Advani and the other leaders of conspiracy.

The CBI charge sheet alleged that a secret meeting took place at the residence of Mr. Katiyar on the eve of the demolition, during which the final decision to bring down the disputes structure was taken. The Special Judicial Magistrate and the Additional Sessions Court also found the conpsiracy prima facie tenable.

However, in February 2001, the Lucknow Bench of the Allahabad High Court found a technical error in the manner Crime 198 was transferred to the CBI without consulting the High Court. Though it did not touch upon the conspiracy charge against the leaders, the High Court asked the Uttar Pradesh government to correct the flaw. Subsequent governments failed to act and Crime 198 finally got detached and returned to Rae Bareilly.

On May 4, 2001, Special Judge, Lucknow, Shrikant Shukla dropped the conspiracy charge against Advani and 20 others on the ground that Crime 197 — the Special Court was only trying this crime — was only regarding the actual demolition and not the hatching of any conspiracy. On May 20, 2010, the High Court upheld Judge Shukla's order while dismissing the CBI's revision petition.

Arguing before the Supreme Court in its appeal on February 19, 2011, the CBI submitted that Judge Shukla made an “artificial distinction” in the demolition case in order to drop the names of Mr. Advani and the 20 others for the reason that they did not participate in the “actual demolition”. The CBI called for a joint trial of both Crime nos. 197 and 198 like how they did previously.

“Acts of instigation, facilitation, the actual demolition of the masjid, the continuous assault on media persons, thus, form a single connected transaction and can well be a concerted conspiracy under Section 120-B of the IPC. In respect of continuous criminal act attracting various offences, the transaction has to be viewed in as a whole and evidence cannot be led at two different courts,” the CBI said in its 2011 appeal.

In his defence, Mr. Advani had argued that the entire endeavour of the CBI to file a composite charge sheet and foist conspiracy charges against him and the other leaders during the UPA government's time was a politically motivated one. Mr. Advani had claimed that the Special Court, in 2001, rightly come to the firm conclusion that it had no jurisdiction to hear the charge of conspiracy. Mr. Advani defended that the CBI's appeals were sheer abuse of law.