Allahabad HC Dismisses Petition For Independent Probe Into Yogi Adityanath's Role In Gorakhpur Riots; Upholds Refusal Of Sanction By State

The Allahabad High Court, on Thursday, upheld the State's refusal of sanction for prosecution of Uttar Pradesh Chief Minister Yogi Adityanath in relation to the 2007 Gorakhpur riots.A Bench comprising Justice Krishna Murari and Justice Akhilesh Chandra Sharma, consequently, refused the plea for an independent investigation into the alleged role played by him as well.Factual matrixThe Court of the Chief Judicial Magistrate, Gorakhpur had been approached by a social activist, Mr Parvez Parwaz, in November 2007, alleging that Yogi Adityanath was delivering hate speeches during the 2007 Gorakhpur Hindu-Muslim riots. This application was, however, rejected in 2008, with the CJM noting that a similar FIR had already been registered and was being looked into.This order was challenged by Mr Parwaz before the High Court, which allowed the revision petition and set aside the impugned order, directing the CJM to pass fresh orders on the application. The CJM then allowed the application and directed that a case be filed under several provisions of the Indian Penal Code (IPC), including those related to murder, attempt to murder, criminal conspiracy, unlawful assembly, and rioting.Thereafter, in November 2008, the State Government directed the state police’s Crime Branch of the Criminal Investigation Department (CBCID) to probe into the allegations. In the meantime, however, one of the accused, Anju Chowdhary approached the Apex Court challenging the Allahabad High Court's order. While the SC did stay further proceedings in pursuance of the FIR, the appeal was finally dismissed in 2012.Mr. Parwaz had also, simultaneously, approached the Allahabad High Court, demanding that an investigation be carried out by an independent agency such as the CBI. This was, however, dismissed in 2009. Subsequently, a restoration application filed in 2010 was dismissed in 2015. The Petitioner then filed a recall application, which was finally heard and allowed in May last year.Refusal of sanctionIt was then in May, 2017 that the Chief Secretary of the State of U.P. informed the Court that the Principal Secretary (Home), Government of U.P. had refused to grant sanction for prosecuting the accused. The Petitioners then appropriately amended their application, challenging the refusal to grant sanction for prosecution.During the course of the hearing, the Petitioners, in September, 2017, filed an application seeking to implead five accused persons, namely, Yogi Adityanath, Dr. Radha Mohan Das Agrawal, Y.D. Singh, Anju Chowdhary and Shiv Pratap Shukla.The Court, however, at the outset, rejected the impleadment application, observing, "Applying the above principles enunciated by judicial pronouncements, it is more than clear that grant of sanction to prosecute being purely an administrative function, the proposed accused have no right to be heard in the matter and thus, their impleadment sought for by the petitioners is unwarranted and they are not liable to be impleaded. Accordingly, impleadment application is liable to be rejected." The Court then framed the following three issues for its consideration: Whether the High Court, in exercise of its jurisdiction conferred by Article 226 of the Constitution, can transfer the investigation? Whether the State has failed to perform its statutory duty to conduct a fair investigation in the matter? Whether the State can pass an order under Section 196 Cr.P.C. against an accused, who, in the meantime, gets elected as the Chief Minister?Issue 1 and 2: Transfer of InvestigationAs regards the first issue, the Court emphasized on the necessity of conducting a fair and impartial investigation and relied on several judicial precedents to hold that the High Court is well within its rights to transfer the investigation of a matter to an independent agency. It observed,"... whenever it is established that investigation has not been fair, proper and impartial there is power vested with the High Court to transfer the investigation to be conducted by any other investigating agency and the same can be invoked by the informant/victim or an aggrieved person."It, however, went on to caution against frequent use of this power, observing,"it is clear that a decision to direct an investigation by any other investigating agency can only be done if there is sufficient material on record to come to the conclusion that such material discloses a prima facie case for transferring the investigation from the agency to which it has been entrusted by the State to any other agency. It is well settled that same cannot be done casually as a matter of routine or merely because some allegations have been made."The Court then opined that there was no material on record to indicate that the investigation was not being proceeded with fairly, independently and impartially, calling for transferring the same to any other agency. It ruled,"A bare perusal of the paragraphs quoted hereinabove go to show that bald allegations have been made by...

Allahabad HC Dismisses Petition For Independent Probe Into Yogi Adityanath's Role In Gorakhpur Riots; Upholds Refusal Of Sanction By State

Apoorva Mandhani

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