OBSERVING THAT the petitioner in the 2007 Yogi Adityanath hate speech case “cannot be left remedy-less”, the Allahabad High Court on Friday asked the UP government what legal remedy was the petitioner left with when the state has refused to grant sanction for the prosecution of the Uttar Pradesh chief minister — the prime accused in the case.
A two-member bench made the observation while hearing a petition filed by Parvez Parwaz, who, along with others, had got FIRs lodged against Adityanath and four others in 2008 for inciting communal violence in Gorakhpur in 2007.
Final arguments in the case began on Friday with the state government putting forth its opening statement.
A K Mishra, additional advocate general representing UP government, claimed the petitioners did not have any new ground or factual foundation to move an amendment plea in the case, since the investigation was over and the chargesheet filed. Requesting the court to reject the plea, he added: “They (petitioners) should let law take its own course.”
“They have an alternative remedy under Section 190 of the CrPc. And they can also file a protest petition,” Mishra told the court. Section 190 refers to a magistrate having the power to take cognizance of any complaint or a police report or any piece of information about an offence.
The bench — comprising Justice Krishna Murari and Justice Akhilesh Chandra Sharma — interjected saying that Section 190 was regulated by Section 196 of the CrPc, which makes the granting of sanction by the state government a prerequisite for the magistrate to take cognizance of an offence and initiate trial.
“I put this question to (the state)… In a case where the state’s sanction is needed for prosecution… the police has done its investigation, prepared the report and submitted it to the magistrate, but the sanction order is not there, can the magistrate proceed? What will the magistrate do?” Justice Murari asked.
He then placed before the state “a hypothetical situation”, wherein police submitted a chargesheet against four persons to the magistrate and the law requires sanction to prosecute them and the sanction order is not there. “What does the law mandate the magistrate to do?” the bench asked.
When Mishra did not have an answer to the question, the bench said: “Understanding the gravity and seriousness of the matter, we do not want to falter and neither should you (the state)… So, please do not answer this in a hurry. If the magistrate cannot proceed… where will the petitioners go? Nobody can be left remedy-less.”
The hearing was thereafter deferred to July 31 with the state directed to reply to the bench’s query.
On May 4, the court had come down heavily on the UP government for not giving sanction to prosecute Adityanath and four others despite the police completing its investigation and preparing the chargesheet over two years ago.
On May 11, in an affidavit to a bench comprising Justice Ramesh Sinha and Justice Umesh Chandra Srivastava, the state government had told the court that it will not grant sanction to prosecute the chief minister because the main evidence in the case, a CD containing Adityanath’s hate speech, has been found tampered with.
In response, petitioners Parvez Parwaz and Asad Hayat, through their counsel Farman Naqvi, had filed an amendment to their original petition citing the changed circumstances, wherein accused no. 1 (Adityanath) had become the UP CM. They also urged the court to reject the government’s order refusing sanction to prosecute Adityanath.
When contacted, Farman Naqvi — who has been demanding that probe into the case be transferred to the CBI — said: “No one can be his own judge. The circumstances of the case have now changed because the prime accused has become the CM of the state and also in charge of the home ministry with which lies the power to sanction prosecution proceedings. This is why we want the court to reject the state’s decision refusing sanction to prosecute the chief minster.”