February 08, 2005

Imam and Shankaracharya : Not the Rule of Law

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 on
22.01.93 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 through
SHO. 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 accursed 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

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
inspite 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 execute
the 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 accessed 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/s321
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

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

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 February
1996, he could not secure the presence of the accused in the court,
inspite 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 excute
the 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 in

question, 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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