The Allahabad High Court on Thursday upheld a lower court order granting Yogi Adityanath and seven others relief from prosecution in a 2007 Gorakhpur hate speech case.
Dismissing petitioner Rasheed Khan’s challenge against the order, however, the High Court remanded the case back to the Gorakhpur court and asked it to consider both sides. Khan had contended that the lower court had not given him a chance to argue against rejection of sanction.
Justice Bala Krishna Narayana on Thursday said, “(N)o interference with the impugned order is warranted. This application lacks merit and is accordingly dismissed. However, by way of abundant caution, C. J. M, Gorakhpur, is directed to decide the matter afresh pursuant to the impugned order of remand strictly in accordance with law and in the exercise of his unfettered independent discretion, without being influenced by observations, if any, made by the revisional court in the impugned order.”
Additional Advocate General for the state, Manish Goel told The Indian Express, “Cognisance of prosecution sanction was taken by judicial magistrate. But that cognisance order was set aside by a sessions judge on behalf of the accused last year on the grounds that it was not applicable in eye of the law.”
Farman Naqvi, counsel for the petitioner, said, “Our application has been partially dismissed. The order has gone in our favour because it gives a scope for re-examination of the merits of the case by the judicial magistrate and a chance to put forward our arguments, something we were denied last time. We might also move the Supreme Court.”
After the 2007 Gorakhpur riots, UP police submitted a chargesheet citing the accused had participated in acts of spreading communal disharmony as per sections 153 A of the IPC, which requires state sanction prior to prosecution. This sanction “is said to have been given” on January 2009. The Gorakhpur chief judicial magistrate took cognisance of the sanction but the case did not go into trial thereafter.
In 2014, however, one of the accused moved a revision application challenging the 2009 cognisance order in the court of the additional sessions judge Shiva Nand Singh, who accepted it and said the chief judicial magistrate’s cognisance order “was bad in law and without jurisdiction” as it was not signed by the designated authority, thus impugning it.
Rasheed Khan then moved the Allahabad High Court challenging this order on the grounds that he was not impleaded or made party to the revision moved by the accused and thus denied a chance to challenge it at the time.
However, Justice Narayana on Thursday, citing previous Supreme Court orders, said, “.(T)he Apex Court has nowhere held in the aforesaid judgement that the informant or the complainant is a necessary party in a revision preferred by the accused. The Apex Court has merely held that the complainant cannot be debarred from being heard at all, even if, he wants to be heard. In the present case, the situation is entirely different .Thus, the impugned order cannot be said to be vitiated on account of the failure of the revisional court either to afford any opportunity of hearing to the applicants.”