Allahabad High Court sets aside UP court order taking cognizance against Azam Khan in communal speech case

The Allahabad High Court on Tuesday set aside an order of a court in Uttar Pradesh taking cognizance against Samajwadi Party (SP) leader Azam Khan in a 2007 communal speech case against him [Mohammad Azam Khan v State]..Single-judge Justice Dinesh Kumar Singh observed that although the offence under Section 153A (promoting enmity between different groups on ground of religion) of the Indian Penal Code (IPC) is a serious offence, but the statute creates a bar for taking cognizance for such an offence unless there is a prior sanction of the 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 noted..As per the facts of the case, in 2007, Azam Khan was contesting State assembly elections from Rampur constituency. While he was campaigning for his party candidate for Vidhan constituency, Firozabad, a first information report (FIR) was lodged against him under Sections 188 and 153A IPC.It was alleged that when Khan went to address the public in support of the Samajwadi Party candidate, he gave a provocative and communal speech and violated the order in place under Section 144 (power to issue order in urgent cases of nuisance of apprehended danger) of the Code of Criminal Procedure (CrPC). The Court was told that his address was recorded and from perusal of the contents of the address, the offence under Sections 188 and 153A IPC were attracted.Khan then moved the present plea under Section 482 CrPC to quash the entire proceedings along with the chargesheet in the case..Khan's counsel argued that the alleged CD (containing his alleged speech) was not part of the case diary and even the contents of the speech were not extracted in the case diary.He further argued that there is a specific bar under Section 196(1) of CrPC regarding taking cognizance for an offence under Section 153A IPC without prior sanction of the State government.Since, no such sanction was obtained in this case before the cognizance was taken by the trial court, the trial court order was bad in law, it was contended.Denying the submissions made by Khan's counsel, the State counsel argued that Khan has been avoiding the process. It was also submitted that there is no bar on registration ofFIR, investigation of the offence or arresting an accused and the bar is only with respect to taking cognizance without prior sanction.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 against the petitioner cannot be quashed, he added.After taking into consideration the facts and arguments, the Court partly allowed the plea and set aside the UP court's order of taking cognizance. It, however, said that the State may grant sanction if it thinks proper and if such sanction is granted, the court concerned may proceed against Khan in accordance with law. "In view thereof, the present petition is partly allowed and the order of taking cognizance is hereby set aside. The State Government may grant sanction if it thinks proper on the material placed before it and, if the sanction is granted, the court concerned may proceed against the petitioner in accordance with law from the stage of taking cognizance," the order said.Azam Khan was represented by Advocate Imran Ullah.[Read Order]