Ahmed Bukhari case
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February 08, 2005
Imam and Shankaracharya : Not the Rule of Law
Differing measures in cases against Imam and Shankeracharya-
D.P. Sinha I.A.S. Retd
In the context of the case filed by Tamil Nadu Govt. against Jayendra Saraswati, the Shankarcharya of Kanchi, the case filed by Govt. of NCT, Delhi against Ahmed Bukhari, Naib Imam of Jama Masjid of Delhi is of relevance. A case against Ahmed Bukhari was filed by Delhi Police in the court of Shri Vinod Kumar Sharma, Metropolitan Magistrate, Delhi without the arrest of the accused u/s 124-A, IPC in May 1993, on the basis of FIR No. 98/93 dated 14.05.93. The allegations were that the accused on22.01.93 had incited the Muslim congregation, that had collected at Jama Masjid for 'Namaz', against the Govt. to boycott the Republic Day celebrations. The court summoned the accused on 16.10.93 for appearance in the court on 06.01.94. On 06.01.94 summons were received back unserved. So fresh summons were issued for 27.05.94. On 17.05.94 the counsel for the accused moved an application seeking exemption from attendance in the court, which was granted. And the case was adjourned to 31.01.95. Even after seven months accused did not turn up, so bailable warrant was issued on 31.01.95 and it was directed that it be served throughSHO. for 07.02.95.The S.H.O. did not serve the warrant as directed. The accused also did not appear in the court on 07.02.95. The court therefore ordered that non-bailable warrant be issued against the accused for 01.06.95. On 01.06.95 non-bailable warrant was received back unserved. So the Magistrate ordered that non-bailable warrant may again be issued for 19.08.95, to be served through DCP Shri P.N. Agarwal personally. But even the DCP failed to comply with the order of the Court. He again directed the DCP to get the NBW served on the accused for 01.11.95 but it was received back unserved with the police report that the accused was not available at his address. The Magistrate did not give up. He again ordered the D.C.P. Shri P.N.Agarwal to get the NBW served personally for 02.01.96. Still the court orders were not complied with and the NBW was returned to the court with the remarks that the accused was not available on the address. The Magistrate gave up on the DCP and reverted back to SHO. He directed him to get the NBW served on the accused personally for 29.02.96. By now police had successfully thwarted the orders of the Metropolitan Magistrate to ensure the presence of the accused in the court for more then two years. It is to be noted that the Magistrate has been very accommodative to the prosecution by giving adjournments from three to seven months, and by not drawing contempt proceedings against the S.H.O. and DCP Shri P.N. Agarwal, who had disobeyed the court orders with impunity and not served the warrants on the accused personally in spite the specific orders of the court in this regard. But the patience of the Magistrate gave way at long last. By his order of 29th Feb., 96 he observed, "From the entire conduct of police it makes me think that why not a separate executing agency be there under the direct control of the judiciary. The judicial commands are often flouted and thwarted by the prosecuting agency for the reasons best known to them. It frustrates the judicial orders and commands. The helplessness of the judiciary is visible form the conduct of the police which shows that judicial officer is at the mercy of the prosecuting agency and it shows that rule of jungle prevails in the police department and not the rule of law". The aforesaid order does reflect exasperation of the Magistrate with the system. At last he gathered courage to issue a show case notice to the SHO that why he should not be proceeded against u/s 60/122 D.P.Act. He also directed the Police Commissioner Nikhil Kumar to executethe non-bailable warrant against the accused within seven days.
The Criminal Writ Petition No. 138/96
The accused Ahmed Bukhari filed writ-petition No. 138/96 against the order of M.M. dated 29.02.96, for quashing the FIR against him and the aforesaid order of M.M. The Division Bench of the High Court comprising of the Chief Justice and Dr. Justice M.K. Sharma by their order of 06.03.96 admitted the petition and passed an interim order staying the execution of non-bailable warrant and further proceedings in the case against the accused Bukhari pending in the court of M.M. Shri Vinod Kumar Sharma.
Move to withdraw the case by NCT. Govt.
While the above on Writ Petition was pending in the High Court, Govt of NCT decided to withdraw the case against the accused on the ground that it would be 'in the interest of justice and promote public peace and harmony amongst different sect of the society'. In effect the NCT Govt. upheld the view that if the supporters of a person accused of most heinous crimes are such that they may create large-scale disturbance and communal riots leading to arson. loot, murder and rape, the case against him should be withdrawn in the larger interest of public peace and communal harmony. Accordingly, Asstt. Public Prosecuter filed the application u/s 321 Cr.P.C. in the court of M.M. Shri Vinod Kumar Sharma, seeking to withdraw the above case.
Objection against withdrawal of the case
At this stage one Shyam Lal through his Advocate N.K. Gupta filed an application in the court of M.M. Shri V.K. Sharma on 02.01.97 objecting to the withdrawal of the case by Govt. of NCT. He submitted that he lived within the jurisdiction of Jama Masjid Police Station, where the inflammatory speech of the accused has created terror and as such he is an aggrieved party. He along with other residents of the area stoutly opposed the withdrawal of the case. Shri Vinod Kumar Sharma, M.M. vide his detailed fourteen paged order dated 14.01.95 rejected the request of the prosecution (NCT Govt.) to withdrawal the case. He upheld the objection of the residents of the area against the withdraw of the case. He also cited profusely the case law and rulings of the Supreme Court in support of his order. The Magistrate observed that "As per the allegation of the prosecution accused has made an attempt to overthrew the government established by law. No individual can be allowed to challenge the very existence of the state. No administration of justice would be served by withdrawing the case against him, without any material placed before the court and where court exercises its judicial function".The M.M. also cited Subhash Chander vs State (1980 SCR page - 44) in which Justice Krishna Aiyer had held that "the even course of criminal justice cannot be thwarted by the Executive, however high the accused, however sure the government feels a case is false, however unpalatable the continuance of the prosecution to the powers that be, who wish to scuttle the course of justice because of hubris of action, or other noble or ignoble consideration. Once the prosecution is launched, its relentless course cannot be halted except on consideration germane to justice". The prosecution (NCT Govt.) had sought to withdraw the case against accused Abdulla Bukhari on the ground that it would be 'in the interest of justice and promote public peace and harmony amongst the different sects of the society'. It was not considered an adequate reason to permit the withdrawal of the case and MM Shri Vinod Kumar Sharma rejected it vide his order of 14.01.97. He observed: "As per the allegation of the prosecution the accused has made an attempt to overthrow govt. established by law. He has challenged the sovereignty of the State. No individual can be allowed to challenge the very existence of the State, No administration of justice would be served by withdrawing the case against him without any objective material placed before the court and where court exercises its judicial direction." He further observed that "In the absence of any description from the prosecution, I am a loss to understand that what are the considerations or compulsions before the state that the present case is being withdrawn from the proscription". He dismissed the plea of the prosecution to withdraw the case.
The Revision Petition
The NCT Govt. filed revision petition No. 170 of 1997 in Delhi High Court against the aforesaid order of Metropolitan Magistrate. The major thrust of the petition was "it would be extremely deterrent to the social fabric of the society and the religious harmony prevailing in the capital. In fact, the continuance of the prosecution may arouse extreme feelings of bitterness, violence and disturbance in the prevalent peaceful atmosphere in the country". A careful reading of the aforesaid petition would show that the prosecution (read government of the day) apprehended that if accused Syed Ahmed Bukhari was arrested and case is continued against him, his volatile supporters will plunge the country into violent conflagration, precipitating Hindu-Muslim riots resulting in loss of human life and property. The Govt was frightened and terrorized and therefore wanted to withdraw the case to prevent such a possibility. The NCT Govt. in its revision petition also sought to undermine gravity of the offence u/s 124-A, I.P.C. and submitted that the speech could have been delivered as a natural reaction to demolition of Babri Mosque. It is interesting to note the volte-face of the NCT Govt. The same government which had slapped the case against the accused of a grave offence u/s 124-A, IPC was now dragging feet, and wanted the case to be withdrawn. The Revision Petition came up for hearing Justice J.K. Mehra who in his judgment dated mentioned that "Since the prosecution appears to have emanated form certain allegedly inflammatory statements attributed to the accused, I considered it appropriate to call the respondent accused and to ascertain his stand in the presence of his counsel as well as State Counsel. The said respondent-accused stated before the court that 'he accepted the validity of the Constitution of India and the Rule of Law established in this country and categorically stated that he did not challenge the constitution or Rule of Law established in the country and that he is governed by the same. He accepted that India is his country and he is one of the citizens of India. He stated that he had intended to criticize certain policies being pursued by the then Govt. of India. In the light of this discussion and further subsequent to the alleged incident there have been no complaints against the behavior of the accused, trial court should have exercised its discretion in favour of allowing the application".In the concluding para of his judgment Justice J.K. Mehra observed: that 'keeping the fact that the present application was filed without any malafide and with the bonafide intention of securing peace, harmony and public order in the society, I consider that the trial court has erred in declining the application for withdrawal of application.... the application of the state for dropping the prosecution is allowed and the respondent accused is discharged-' Suming up Section 124-A, IPC is a cognizable offence, under which police usually arrests the accused person, as soon as a FIR is lodged. But no such arrest was made by Jama Masjid Police Station of Delhi for fear of law and order problem. The case was filed in the court of the Metropolitan Magistrate Shri Vinod Kumar Sharma in May 1993 but till 29th February1996, he could not secure the presence of the accused in the court, in spite of innumerable summons/NBWs/warrants he issued. The police stubbornly refused to comply with the orders of the court. At long last, when he ordered the police commissioner Nikhil Kumar to excutethe NBW on the accused, the accused filed the writ petition and secured stay order from the high court. During the pendency of the writ petition the NCT Govt. took the decision to withdraw the case on the ground that the continuance of the case would jeopardize the law and order situation. It is the same ground for which the police did not arrest Ahmed Bukhari although he was accussed of committing an offence u/s 124 I.P.C. When some residents of the area objected against the withdrawal of the case and the Magistrate upheld their objection refusing to give permission to withdraw the case, NCT Govt. filed revision petition against the order of the Magistrate on the same ground of maintenance of public peace and order.In effect, the High Court allowed the appeal and permitted the case to be withdrawn by the NCT Govt. An extra-ordinary and an unprecedented act of the Delhi High Court deserves mention. Justice S.K. Mehra summoned the accused to the High Court and examined him in respect of the allegations against him. The accused, naturally denied the allegations. His denial and assurance for good conduct in future, and the fact that there had been no complaints against the behavior of the accused, subsequent to the incident inquestion, convinced the honourable Judge to the extent that he allowed NCT Govt. to withdraw the case.
Thus the High Court also laid down a precedent. If a person is accused of a theft and it is found that he has not committed another theft subsequent to that incident, the case should be withdrawn against him. The High Court also did not take adverse note of the willful non-compliance of orders of a judicial authority by police for service of summons/warrants/NBWs. against the accused for about two and a half years. In brief, even though offence u/s 124-A IPC is a cognizable offence,police did not arrest the accused and did not serve summons/ warrants/ NBWs on him and NCT Govt. withdrew the case against him for just one reason that he has a following of a mob that may endanger public peace and tranquility. The High Court also found it to be a valid reason to withdraw the case. NCT Govt. neither had the courage nor the will to arrest and proceed against the Ahmed Bukhari. But the case of Shankarcharya is different. Shankarcharya does not have a following of mobs that may endanger public peace and religious amity. So why should Tamil Nadu Govt. worry? It is the lamb that is scarified and not the wolf.
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