Hate speech: SC upholds HC order backing UP’s no to prosecute Yogi

Writing for the bench, Justice Ravikumar agreed with the submission of Senior Advocate Mukul Rohatgi, who was representing the UP government, that “the subsequent events” in the case “have rendered the present appeal into a purely academic exercise”.

As such, the bench said, “we do not think it necessary to go into the contentions raised by both sides on the issue of denial of sanction for prosecution and the legal pleas sought to be raised in relation to the said issue”.

The bench, however, said that “we think it appropriate that the legal questions on the issue of sanction be left open to be considered in an appropriate case”.

The petitioner, Parvez Parwaz, had challenged the UP government’s decision on May 3, 2017 — two months after Adityanath took charge as Chief Minister for the first time — denying sanction for prosecution.

Advocate Fuzzail Ayyubi, appearing for Parwaz, contended that the Allahabad High Court, which dismissed the plea on February 22, 2018, had not gone into the question of “whether the state can pass an order under Section 196 CrPC in respect of a proposed accused in a criminal case who, in the meantime, gets elected as the Chief Minister and is the Executive Head as per the scheme provided under Article 163”.

According to Section 196 of the CrPC, no court shall take cognizance of an offence under IPC sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony) or 295A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs) except with the previous sanction of the Central or state government.

The High Court had found no procedural error in the probe or the refusal to grant sanction.

Rohatgi pointed out that a closure report had already been filed in the case after due investigation on May 6, 2017, and that the CD that formed the basis of the prosecution was found to be “tampered” with.

The Supreme Court bench, too, said in its order said that “it appears from the record that the forensic report of the CD which forms the basis of the prosecution was found to be tampered and edited as per the report dated 13.10.2014, submitted by the CFSL which position has not been disputed by the appellants herein”.

The case referred to an incident of January 27, 2007, when a person identified as Raj Kumar Agrahari suffered fatal injuries in a clash between two groups during a Muharram procession. Parwaz, a former Gorakhpur-based journalist and activist, had filed the case on September 26, 2008, claiming that Adityanath had delivered speeches seeking “revenge” for the death of the Hindu youth, and that he had videos of the same.

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On July 10, 2015, the police had sought sanction for prosecution from the state government, then led by the Samajwadi Party, against Adityanath, as well as former MLC Y D Singh, MLA Radha Mohan Das Agarwal, former BJP Mayor Anju Chaudhary and former minister Shiv Pratap Shukla.

In its affidavit, the government said the forensic report had found that the submitted videos of the speeches were not original and had been “edited and tampered (with)”, and that voice samples were not directly taken from Adityanath but from some other speech of his.

In July 2020, the District and Sessions Court of Gorakhpur sentenced Parwaz to life imprisonment in a 2018 gangrape case, after a 40-year-old woman accused him and another person of assaulting her on June 3, 2018.