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2007 'Provocative' Speech Case Against Azam Khan: Allahabad High Court Sets Aside UP Court's Order Taking Cognizance

Sparsh Upadhyay
25 Jan 2023 4:52 PM GMT
Allahabad High Court, Uttar Pradesh Cabinet Minister and Senior Samajwadi Party Leader Azam Khan, Section 153-A IPC, sanction, uttar pradesh government, 2007 Provocative Speech Case, uttar pradesh court, firozabad court, cognizance taking order, Section 196(1) CrPC,

In a partial relief for former Uttar Pradesh Cabinet Minister and Senior Samajwadi Party Leader Azam Khan, the Allahabad High Court has set aside an order of the Firozabad Court taking cognizance of offence under Section 153-A IPC in the 2007 'provocative' and 'communal' speech case.

The bench of Justice Dinesh Kumar Singh observed that the offence under Section 153-A IPC is a serious offence, but the statute has created a bar for taking cognizance for such an offence unless there is a prior sanction of the competent authority i.e. State Government, which was not obtained in the present case.

"Admittedly, there was no prior sanction before taking cognizance and, therefore, the impugned order so far taking cognizance, is bad in law and is liable to be set aside," the Court ordered as it partly allowed the plea of Khan.

However, the court has kept it open for the State Government that it may grant sanction for the said offence if it thinks proper on the material placed before it. If the sanction is granted, the court concerned may proceed against the petitioner in accordance with the law from the stage of taking cognizance, the Court further added.

The FIR against Khan was lodged under Sections 188 and 153-A IPC in 2007 when he was campaigning for his party candidate in Firozabad Vidhan Constituency as when he went to address the public, he allegedly gave a provocative and communal speech and violated the order of Section 144 Cr.P.C.

Seeking to quash the entire proceedings along with the chargesheet in the case, Khan moved the instant plea under Section 482 CrPC in the year 2018.

Appearing for him, his counsel Imran Ullah argued that the alleged CD (containing his alleged speech) is not part of the case diary and even the contents of the speech are not extracted in the case diary.

Significantly, he further argued that there is a specific bar under Section 196(1) CrPC regarding taking cognizance for an offence under Section 153-A IPC without prior sanction of the State Government and since, in the instant case, no sanction before the cognizance was taken by the trial court vide impugned order, the said order was bad in law.

On the other hand, the state counsel argued that Khan has been avoiding the process in the instant case. It was also submitted that there is no bar to the registration of the FIR and investigating the offence or arresting an accused and the bar was in respect of taking cognizance without prior sanction.

It was further submitted that even if the order of taking cognizance is set aside on the ground of no sanction by the State Government under Section 196 (1) CrPC, the proceedings can not be quashed against the petitioner.

Taking into account the submissions of both sides, the Court set aside the order of the court taking cognizance of Section 153A on the ground that no prior sanction had been obtained from the state government.

"The question whether there is sufficient material to support the allegation for offence under Section 153-A IPC against the petitioner, would be examined at the relevant time, but at this stage, it can not be said that there is no material to support the allegation," the Court further added as it partly allowed the plea.

Case title - Mohammad Azam Khan vs. State of U.P. and Another [APPLICATION U/S 482 No. - 35405 of 2018]

Case Citation: 2023 LiveLaw (AB) 36

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