11 Sep 2018 6:21 PM GMT
The Supreme Court has directed the Chief Judicial Magistrate, Gorakhpur, to pass a reasoned order on whether to take cognizance of a criminal complaint against UP Chief Minister, Yogi Adityanath. The complaint alleged that riots in Gorakhpur in 2007 were caused by Hindu Yuva Vahini members who were allegedly incited and provoked by Yogi Adityanath, then a Member of Parliament.The Supreme...
The Supreme Court has directed the Chief Judicial Magistrate, Gorakhpur, to pass a reasoned order on whether to take cognizance of a criminal complaint against UP Chief Minister, Yogi Adityanath. The complaint alleged that riots in Gorakhpur in 2007 were caused by Hindu Yuva Vahini members who were allegedly incited and provoked by Yogi Adityanath, then a Member of Parliament.
The Supreme Court bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud noted that reasoned order was necessary for taking cognizance , as per the decision in Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609. Hence, the Court directed :
"In view of the aforesaid, we only direct the learned Magistrate, as the High Court has remitted the matter to him, to pass appropriate orders keeping in view the law laid down in the aforesaid passage(from Sunil Bharti Mittal)".
It was alleged in the complaint- "On the morning of 27th January 2007, responding to a call by Yogi Adityanath, a mob of violent members of the Hindu YuvaVahini and other Hindu Organisations gathered and in order to imbibe fear in the local minorities raised provocative slogans about damaging the properties of and killing Muslims. Though Yogi Adityanath was himself ordered by the District Magistrate to not to visit the place, he violated the prohibitory orders and on his commands and provocation along with that of other accused persons laid waste to a nearby mausoleum held sacred by the minorities of that area by damaging it and setting the site ablaze". It was further alleged that as a result of the acts, the entire locality was gripped in a reign of terror and fear, with people afraid for their lives. The incident had shattered the peace and tranquility of the area, the complainant also alleged.
On the basis of complaint by one Rasheed Khan, FIR was registered as Case Crime No. 43 of 2007, under Sections 147, 295,297, 436, 506 and 153A of the Indian Penal Code, 1860 at P.S. Kotwali, District Gorakhpur against Yogi Adityanath and certain other persons.
On completion of investigation, the police filed charge-sheet under Sections 147, 295,297, 436, 506 IPC. The CJM Gorakhpur took cognizance of these offences as per order dated 14.06.2007. In order to take congizance of offence under Section 153A IPC, prior sanction was required under Section 196 of CrPC. Therefore, the police sought for sanction from appropriate authority. On such sanction being granted, a supplementary charge sheet was filed for offence under Section 153A(promoting enmity between groups). The supplementary charge under Section 153A was also taken cognizance by the CJM on 22.12.2009.
The accused persons filed revision in the Sessions Court challenging the order of cognizance on the ground that sanction was not granted by the competent authority. The Session's Court allowed the revision, setting aside the order of cognizance. The matter was remitted back to the CJM for fresh consideration.
The complainant Rasheed Khan challenged the order of Sessions Court in the Allahabad High Court. It was contended that revision was allowed without issuing notice to the complainant. He contended that irregularity in sanction will not vitiate the proceedings, as stated in Section 465 CrPC. It was further contended that sanction was necessary only for offence under Section 153A; so even if there was any irregularity, it need only affect the order dated 22.12.2009 by which congnizance of Section 153A was taken, and will not affect cognizance of other offences. However, the Sessions Court set aside both the orders of cognizance- order dated 14.06.2007 and 22.12.2009.
The High Court did not accept the challenge. The High Court held that de-facto complainant will not come within the scope of "other persons" under Section 401(2), CrPC, and hence no notice was required to be issued to him. The High Court upheld the order of the Sessions Court, finding no illegality. Challenging the High Court order, the complainant moved the Supreme Court. The Supreme Court, however, remitted back the matter to the Magistrate with a direction to pass a fresh order in accordance with law on the issue of taking cognizance. Senior Advocate Salman Khurshid and Advocate Fuzail Ayyubi argued for the petitioner and Senior Advocate Aman Lekhi appeared for Yogi.