Why Allahabad HC has dismissed a plea for a probe into role of Yogi in Gorakhpur riots

The Allahabad High Court today dismissed a petition seeking an independent probe into the alleged role of Uttar Pradesh Chief Minister Yogi Adityanath in the 2007 Gorakhpur riots..While doing so, the Bench of Justices Krishna Murari and Akhilesh Chandra Sharma also upheld the state government’s decision not to grant sanction against Adityanath under Section 196 of the Code of Criminal Procedure..The matter dates back as far as 2007, when Yogi Adityanath allegedly sparked communal riots in Gorakhpur by making a hate speech against Muslims. What follows is an account of the matter as it panned out, and why the High Court eventually held that there was no reason to call for an investigation by an independent agency..Ten in years in Court.The case was initiated by petitioner Parvez Parwaz, a resident of Gorakhpur who sought to file an FIR against Adityanath. When the police refused to lodge the same, Parwaz made an application on November 16 that year before the Chief Judicial Magistrate, Gorakhpur. This came to be dismissed, prompting Parwaz to appeal in the Allahabad High Court. In September 2008, the High Court would set aside the CJM order and direct that the matter be heard afresh..One month later, the CJM allowed the application and directed a case be filed under a slew of IPC sections, including those related to murder, attempt to murder, criminal conspiracy, unlawful assembly, and rioting, among others. In November 2008, the state government directed that an investigation be undertaken by the state police’s Crime Branch of the Criminal Investigation Department (CBCID)..Things seemed to be taking their natural course until one the accused, Anju Chowdhary – the mayor of Gorakhpur during the riots – approached the Supreme Court challenging the aforementioned High Court decision. It would take four years for the Supreme Court to dismiss the appeal, in 2012..In the meanwhile, Parwaz filed a petition in the High Court calling for an investigation by an independent agency such as the CBI, and the same was dismissed in 2009. A restoration application was filed in 2010, and then dismissed in 2015. This prompted the petitioners to file a recall application. The same was finally heard and allowed on May 5 2017, after condoning the delay in filing the same..Communication Breakdown.On that date, the Court had directed Chief Secretary of the state government to be present for placing on record the entire case file. This, after the Court took note of the conflicting submissions made by lawyers appearing for the state..The Bench of Justices Ramesh Sinha and Umesh Chandra Srivastava also held,.“This further raises a question that how serious is the State and its agencies in pursing the matter which is of grave concern in which innocent persons have lost their lives, many were injured and properties of innocent persons were set ablaze in the communal riots which broke in the city of Gorakhpur in the year 2007 and their families are waiting for justice at the doors of the Court and almost nine years have elapsed and the matter is struggling on such technical issues.”.On the next date of hearing, the Court criticized government pleader Vimlendu Tripathi for not informing it of the fact that the Home Department of the state government had refused to grant sanction to prosecute Adityanath..Later, Tripathi would file an application seeking that the remarks of the Court be expunged from the record. Considering the fact that the state government had not given him adequate instruction, the present Bench of Justices Murari and Sharma – who began hearing the case since July 7, 2017 – allowed the same..Transfer of investigation.Once all the information finally came to be placed before the Court, the main issues to be determined were:.Whether the High Court has jurisdiction under Article 226 to transfer investigationWhether the State has failed to perform its statutory duty to conduct a fair investigation in this case.As regards, the first point, the High Court reiterated a number of Supreme Court decisions to arrive at the conclusion that the High Court is well within its rights to transfer the investigation of a matter to an independent agency..“…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.”.However, the Court held, the same must only be done sparingly,.“Constitution Bench in the case of State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal & others (Supra), has observed that handing over investigation to C.B.I. can be ordered only in exceptional circumstances and definitely such an order is not to be passed in a routine course merely because the parties have levelled some allegations.”.The Bench decided that it was not a fit case to be sent to another investigating agency, as there was no material on record to show that the authorities had shirked away from their responsibilities..“In the instant case, what is note worthy is that FIR was lodged on 02.11.2008. Vide order dated 3.11.2008 the State Government entrusted the investigation to C.B.C.I.D. This petition with a prayer to transfer the investigation to any other independent agency was filed on 01.12.2008 i.e. just after 28 days. This fact in itself sufficient to establish non availability of any cause of action to the petitioners for seeking the said relief at the time of filing the petition..Further there are no averments much less any material on record of the writ petition on the basis of which a conclusion could be drawn that investigation is not proceeding fairly, independently and impartially calling for transferring the same to any other agency.”.The Evidence.The main piece of evidence in the case was a DVD of Yogi Adityanath making the purported hate speech, submitted by the petition to the CJM, Gorakhpur back in 2008. When the DVD was submitted to the CBI lab for analysis, it was concluded that the same was “edited and tampered”..However, the petitioner contended that the DVD sent for analysis was not the one submitted by him. Later, the High Court found that the DVD submitted in 2008 was broken in two pieces and thus could not be read..The state government countered these claims by stating that the petitioner had submitted a different DVD on March 14, 2013, when his statement was taken by the police. In response, the petitioner stated that even if the same was presumed, the DVD analysed by the CBI lab had recorded the date of creation of the DVD as April 27, 2013. This, the petitioner claimed, conclusively establishes that even the said DVD was not sent for forensic examination..Despite the Court’s “anxious consideration”, it did not end up buying the petitioner’s claims. After considering the opinions of experts in the field, the Court held,.“…it is very much clear that date and time recorded is not always accurate and can also be subjected to tampering. The tampering, if any done, can be detected and verified only through the test of authenticity of the source i.e. electronic gadget whose output is in the form of CD or VCD or print out etc. Admittedly, the source from which the compact disk in question was prepared was not made available for examination by the Forensic Lab and thus, tampering or editing, if any, in the date and time recorded in the disk was not verifiable. Further since the CD itself was found to be edited and tampered, the tampering/editing in the date stamp on the CD cannot be ruled out conclusively.”.Grant of sanction to prosecute under Section 196 CrPC.On receiving the CBI lab report as regards the authenticity of the DVD, and considering other evidence on record, the CBCID decided to charge the accused persons for the offences under Sections 143, 153, 153A, 295A read with Section 505 IPC. Quite significantly, the more serious charges of murder and attempt to murder were left out of the chargesheet, in light of the apparent lack of evidence..And as discussed before, the Home department of the state government, using its power under Section 196 of the CrPC, refused to grant sanction to prosecute the accused. Section 196 states that no court can take cognizance of any of the aforementioned offences without the previous sanction of the state government..On being satisfied that the proper procedure was followed by the state government regarding the denial of sanction, the Court proceeded to discuss whether the same was warranted. After going through a number of Supreme Court decisions on the topic, the Court held,.“…grant of sanction is an administrative function and the validity of sanction depends upon the fact that entire material has been placed before the sanctioning authority and the same has been perused by the authority and there has been proper application of mind before recording the satisfaction whether sanction is liable to be granted or refused….… The order refusing sanction has been passed by the competent authority after due application of mind and the same is not lightly to be dealt with and flimsy technicalities cannot be allowed to sacrifice the sacrosanct and sacred Act for grant of sanction intended to provide safeguard against vexatious prosecution.”.For the reasons mentioned above, the Court dismissed the petition..Read the judgment:.Yogi Adityanath image courtesy – ANI