The Hindu : 'No prosecutable case against Advani'

Online edition of India's National Newspaper
Wednesday, Jan 14, 2004

National

National

'No prosecutable case against Advani'

By Vinay Kumar

NEW DELHI, JAN. 13. It was the "different from others" conduct of the Bharatiya Janata Party (BJP) leader, L.K. Advani, before and during the demolition of the disputed structure at Ayodhya on December 6, 1992, which was scrutinised by the Central Bureau of Investigation (CBI) before deciding not to file a revision petition before the Allahabad High Court challenging Mr. Advani's discharge in the Babri Masjid demolition case.

Sources told that Mr. Advani's conduct during that time was taken into consideration for assessing the common object and infer culpability, if any. From the conduct, it was clear that he had not shared the common objective in the case. The Special Magistrate, therefore, in his September 19, 2003 order, rightly put Mr. Advani in the category of people who were trying to prevent the demolition while the other category of leaders were provoking the kar sevaks to demolish the disputed structure, the CBI opined.

After statements of different witnesses as cited in the order, the CBI came to the view that the conduct of Mr. Advani vis-a-vis other accused was "definitely different" and his conduct during the relevant time was indicative of his innocence.

Referring to Section 120-B of the Indian Penal Code relating to conspiracy, which has not been invoked in the 198/92 case at any point of time, the CBI concluded that it was not the stage for prosecution to introduce this section. Anyway, a conspiracy charge is still available in case no. 197/92 where investigation has centred on conspiracy, which is pending in a Lucknow Special Court.

On the validity of Sections 147 and 149 IPC, pertaining to rioting and unlawful assembly, the agency did not find any logic in their applicability so far as Mr. Advani was concerned. The CBI felt that there was no prosecutable case under any section of law in the case no. 198/92 — the one sent to the Rae Bareilly court — and came to the view that mere filing of a revision petition on technicality will be a futile exercise.

According to the law, mere presence in the unlawful assembly will not make a person share the object of the unlawful assembly. Individual acts and attending circumstances should be assessed to conclude whether he shared the common objective or not. According to evidence, while kar sevaks were engaged in demolition some leaders were appreciating it, but some kept quiet. In fact, Mr. Advani, as stated by witnesses, wanted to know what was happening inside the disputed structure when the kar sevaks stormed the structure by uprooting the barricades.

While Mr. Advani was informed that kar sevaks were demolishing the structure, he wanted to go there. When he was dissuaded by security grounds, he wanted one of the leaders to go, and Uma Bharti was sent. He also requested some leaders at the "manch" to make an appeal to the kar sevaks to maintain order. He also wanted to speak to the District Magistrate but he spoke to the Chief Minister on phone and according to some witnesses he was "shell-shocked" and unhappy when one after the other the domes fell. The CBI was of the opinion that this aspect of the conduct could not be ignored.

On Section 149, the agency said that whether it could be stretched to include Mr. Advani remained a "debatable'' point in the light of his conduct. Referring to Section 505, — statements leading to public mischief — , the most important ingredient in the offence is to make an utterance. Since the exact words uttered by Mr. Advani did not find any mention in the statements of witnesses, the CBI felt that a case could not be made out under Sections 153A, 153B and 505 of the IPC.

The agency observed that constructive liability was sought to be brought upon Mr. Advani on having the common object to demolish the disputed structure along with the kar sevaks who had not been charge-sheeted in the case. Analysing the judgment of the Special Magistrate, the CBI noted that it was a fact that Mr. Advani was sitting on the manch like the others, and the kar sevaks' statements were uncontrollable. They were not paying heed to the appeals made by some leaders. It was but natural that there was a mob frenzy and the kar sevaks demolished the structure. Some leaders had spoken provocative words.

The Supreme Court has held that intention to cause disorder and excite people to violence is a sine qua non to be considered as offence under Section 153A and the prosecution has to prove the existence of mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime) in order to succeed. In CBI's opinion, these ingredients did not figure in the evidence gathered by the prosecution and no witness had stated the exact words uttered by Mr. Advani.

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