Haji Mahboob Ahmed, a resident of Ayodhya who was examined as a witness in the case against Advani and others, filed the fresh plea. Ahmed is also a party to the original civil suit filed in the district court.
The Allahabad high court had on May 20, 2010 discharged Advani and the others of conspiracy charges. CBI filed an appeal on February 9, 2011, after a delay of eight months which it attributed to the "cautious approach" of those concerned with filing the appeal.
Appearing for Ahmed, senior advocate Kapil Sibal's request for issuance of notice to the respondents, including Advani and 20 others as well as CBI, was accepted by a bench of Chief Justice H L Dattu and Justice Arun Mishra though the appeal (Ahmed's) was filed after a delay of 1,680 days (since 2010 verdict). This petition, if heard by the court after condoning the delay, would keep the case alive politically though the UPA government did not appear to take mileage out of the case when it was in power for 10 years at the Centre.
Additional solicitor general Neeraj Kishan Kaul had earlier informed the bench that the CBI had filed an affidavit explaining the delay in filing appeal against the Allahabad HC judgment in April 2013 and the agency had nothing more to add. The CBI had told the SC on April 16, 2013 that everyone concerned with filing of the appeal against Allahabad HC 2010 judgment had adopted a "cautious approach".
The limitation period for filing the appeal expired on August 29, 2010 but CBI had moved the SC only on February 9, 2011, after a delay of eight months and the court had asked the agency to explain the delay as the counsel for the accused sought dismissal of the appeal on ground of huge delay.
Narrating the movement of files relating to filing of the appeal, the CBI had said, "The delay has been occasioned because everyone associated with the matter was cautious, keeping in mind the sensitivity involved in the matter and wanted to exercise due diligence in the matter." The counsel for the accused had sought dismissal of the CBI's appeal on the ground of delay.
The bench of Justices Dattu and Mishra told all the counsel that it would hear the matter both on the grounds of delay and on merit.
However, the case got a new twist with Ahmed's petition. Filed through advocates M R Shamshad and Farrukh Rasheed, the plea said, "The HC failed to appreciate the scope and nature of Section 120B of IPC (conspiracy). A reading of the section shows that the offence of criminal conspiracy is a separate offence by itself. In the present case, the charge of Section 120B IPC runs like a common thread in respect of each and every offence and in relation to each and every accused person.
"The HC in its February 12, 2001 order had ratified the consolidated charge-sheet which included the offence under Section 120B IPC against the eight accused persons in crime No.198/92 (the FIR against Advani and others) as well as other accused persons. Therefore, the finding of the HC in the May 20, 2013 judgment was erroneous."
In the next hearing, the court will hear the counsel for the accused and decide whether the eight-month delay on part of CBI and five years on part of Ahmed could be condoned and if conspiracy charge against the accused be restored.
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