Prospective Accused Needs To Be Heard: Allahabad HC Withholds Dictated Order Directing FIR Against Rahul Gandhi

In a significant development, the Allahabad High Court (Lucknow Bench) has withheld its final order on a BJP worker's petition seeking the registration of an FIR against the Leader of Opposition (LoP) in Lok Sabha, Rahul Gandhi, in connection with claims that he is a British national.

A bench of Justice Subhash Vidyarthi effectively deferred the operation of the judgment that had already been dictated in open court yesterday, directing that an FIR be lodged against Gandhi. The bench effectively halted this order before it could be typed and signed.

It may be noted that in its April 17 order, uploaded just a few minutes ago, the Court opined that the prospective accused is entitled to be given an opportunity to be heard.

As per the 2-page order, the bench decided to withhold the verdict after coming across a Full Bench judgment of the High Court in the case of Jagannnath Verma and others Vs State of U.P. and others 2014.

In this case, it held that a Magistrate's order rejecting an application under Section 156(3) Cr.P.C. for the registration of a case and for investigation is not an interlocutory order and is amenable to the remedy of a criminal revision under Section 397 CrPC.

Relying on this, Justice Vidyarthi noted that in such revision proceedings, the prospective accused or the person suspected of having committed the crime is entitled to an opportunity of being heard before a final decision is taken. Shishir's petition has, however, been filed under Section 528 BNSS [S. 482 CrPC].

Therefore, noting that the application should not be decided, the Court has posted the matter for further hearing on April 20 to hear the parties on this aspect.

Importantly, the order also notes that during the hearing, the court put a specific question to the petitioner and other counsel as to whether a notice was required to be issued to the opposite party no. 1.

"All of them submitted that there is no requirement of issuance of a notice to the proposed accused while deciding an application under Section 173(4) read with 175(3) BNSS and, therefore, no notice needs to be issued to the proposed accused-opposite party no.1 while deciding an application under Section 528 BNSS challenging the validity of an order rejecting an application under Section 173(4) read with Section 175(3) BNSS," the order records.

Our readers may recall that yesterday, the Allahabad HC pronounced the operative part of its order in open Court, directing the lodging of an FIR against the Gandhi on a petition moved by a Karnataka BJP Worker (S. Vignesh Shishir).

Shishir had moved the HC after an ACJM Court in Lucknow, in January this year, rejected his petition seeking an FIR against Gandhi under various provisions of the Bhartiya Nyaya Sanhita, the Official Secrets Act, the Passport Act and the Foreigners Act.

Before the HC, the applicant (Shishir) submitted that Gandhi is a UK Citizen and had incorporated a company named M/S Backops Ltd., which was registered in August 2003.

It was further submitted that Gandhi categorically admitted and voluntarily declared his nationality as British, having a Director Identification ID and London and Hampshire addresses.

It was also claimed that Gandhi had submitted the Company's annual returns in October 2005 and October 2006, listing his nationality as British. Thereafter, the said Company was dissolved by filing a dissolution application in February 2009.

Furthermore, it was submitted that Gandhi contested the 2004 Lok Sabha Elections, admitting and disclosing the ownership of M/S Backops Ltd. and his foreign bank account with Barclays Bank, London Branch, UK.

Shishir further argued that Gandhi should face charges under the Foreigners Act, the Passport Act and even the Official Secrets Act.

Advocate Vindeshwari Pandey assisted applicant Shishir.

Government Advocate V.K. Singh, along with AGA-I Yogesh Kumar Singh, AGA Mayank Sinha, represented the opposite party Nos. 2, 3 and 4.

DSGI SB Pandey, along with Advocates Raj Kumar Singh and Anand Dwivedi, appeared for the Union of India