Stating that ''something is peculiar about this case'', the Supreme Court Monday observed that ''prima facie'' the order exonerating BJP leader L K Advani and others in the 1992 Babri Masjid demolition case was not correct and that the CBI should have filed a supplementary chargesheet against them.

A bench of Justices P C Ghose and Rohinton F Nariman questioned the CBI’s conduct in prosecuting the matter against several party leaders, including Murli Manohar Joshi and Uma Bharti, and said that their discharge on a technical ground was inappropriate.

As soon as the hearing began, Justice Nariman said: “Something is peculiar about this case.” “Prima facie, we don’t think they can be discharged,” said the bench, as it sought to know from the CBI the status of the trial in two cases registered in connection with the demolition -- one each in Lucknow and Rae Bareli.

In Lucknow, the accused face charges of demolition; those in Rae Bareli are being tried for allegedly instigating the crowd through speeches. The conspiracy charges against Advani and some others were dropped in Lucknow on the grounds that the FIR related only to “kar sevaks”.

The CBI, which is prosecuting both cases, had filed an appeal in the top court against the order dropping the conspiracy charges. But this appeal was moved nine months after the High Court order confirmed the trial court verdict, and hence the agency has been asked by the bench to first explain the delay.

On Monday, the bench observed that the CBI should have filed a supplementary chargesheet to substantiate the allegations of criminal conspiracy against the leaders, who were let off on a technical ground that the trial was sought to be conducted at a trial court in Lucknow without the concurrence of the High Court. They are currently being tried at a Rae Bareli court on charges of making provocative speeches as “kar sevaks” proceeded to demolish the mosque.

“Why didn’t you file a supplementary chargesheet against 13 accused in this case, the way you filed it for eight other accused in another case? Why haven’t you filed the supplementary chargesheet in Rae Bareli?” the bench questioned Additional Solicitor General Neeraj K Kaul, appearing for the CBI.

The bench added that when the accused were discharged on a technical ground, the CBI was expected to file a supplementary chargesheet to fill the lacuna. “But you didn’t do that and you also filed your appeal very late,” it said.

At this, ASG Kaul said that the CBI was in appeal before the apex court for all these reasons. “We also think that the order of discharge should go,” said the counsel for the CBI.

The bench then said that it might order for a joint trial of both the criminal cases in one court, preferably at Lucknow. “Why don’t you conduct the joint trial of both the cases? It cannot go on like this forever. It has to be decided in one way or another. We are concerned about the delay in conducting the trial,” added the court.

To this, senior lawyer K K Venugopal, who appeared for Advani, said he would want to be heard before the apex court makes any order on conducting the joint trial of the two cases. “We will hear you but we are likely to pass order on a joint trial on the next day,” said the bench, as it fixed the matter for hearing next on March 22.

The court’s view was supported by senior counsel Kapil Sibal and advocate M R Shamshad, who are representing Haji Mehboob. Mehboob is one of the original petitioners in the Babri Masjid-Ramjanmabhoomi title suit who has pleaded that the CBI might not press for restoration of the conspiracy case against top leaders of the party with a BJP-led government in power.

Mehboob, 77, has claimed that his fears stem from the fact that Rajnath Singh, an accused in the case, was now Union Home Minister and that his ministry had administrative control over CBI. He had added that another accused, Kalyan Singh, was now Governor of Rajasthan.

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