Allahabad High Court dismisses plea against lower court order on hate speech case against CM Yogi Adityanath
The Allahabad High Court dismissed a petition filed by one Parvez Parwaz challenging a lower court’s order rejecting his protest plea against closure report in the alleged 2007 hate speech case against Uttar Pradesh Chief Minister Yogi Adityanath.
A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing an application under Section 482 filed by Parvez Parwaz and another.
The petition under Section 482 CrPC has been filed, impugning the order dated 11.10.2022 passed by the Additional District & Sessions Judge (Rape and POCSO)-3, Gorakhpur, arising out of Case under Sections 153, 153-A, 153-B , 295, 295-B, 147, 148, 395, 436, 435, 302, 427 and 452 IPC read with Section 7 Criminal Law Amendment lodged at Police Station Cantt, District Gorakhpur.
The trial court has rejected the protest petition filed by the petitioner by holding that as the sanction for prosecuting the accused was already refused under Section 196 CrPC and the said order was challenged by the petitioner/complainant up-to the Supreme Court and the Supreme Court had dismissed the appeal, therefore, the protest petition could not be accepted and the trial Court could not interfere with the order, refusing the sanction for prosecution of the alleged accused. There is a checkered history of litigation and a brief survey is required to be mentioned.
The petitioner had initially approached the Court by filing Criminal Writ Petition.
The Division Bench of the Court by means of order dated 24.10.2007 dismissed the writ petition by observing that the the petitioner, if so advised, may file an application under Section 156(3) CrPC for a direction to lodge the FIR against Sri Yogi Adityanath and others.
The petitioner, thereafter, filed an application under Section 156(3) CrPC for lodging of the FIR against the accused under Sections under Sections 120-B, 153-A, 153-B, 295-A, 295-B, 143, 147 , 435, 436, 452, 427, 395, 302 and 307 IPC and 3/4 Prevention of Damage to Public Property Act and Railways Act.
The said application was rejected by the Chief Judicial Magistrate order dated 29.07.2008.
The petitioner, thereafter, filed Criminal Revision before the Court. The Court order dated 26.09.2008 set-aside the order dated 29.07.2008 passed by the Chief Judicial Magistrate, Gorakhpur and remitted back the matter to the Chief Judicial Magistrate to pass a fresh order in accordance with law.
It was also directed that after registration of the FIR, on the basis of the application filed by the petitioner under Section 156(3) CrPC, proper investigation should be ensured.
On remand, the FIR was registered on 02.11.2008 at Police Station Cantt, District Gorakhpur against five accused persons, including Sri Yogi Adityanath, the then Member of Parliament from Gorakhpur Parliamentary Constituency.
The accused approached the Supreme Court by filing Criminal Appeal against the order dated 26.09.2008. The Supreme Court order dated 13.12.2012 dismissed the said appeal.
S.F.A Naqvi, Senior Advocate, assisted by Fatma Anjum and Manauvar Husain, Advocates, for the applicant, submitted that the question of legality of order, refusing sanction for prosecution, was left open by the Supreme Court and, therefore, it cannot be said that the issue had attained finality.
It has been further submitted that while deciding the protest petition filed by the petitioner against the closure/final report, the trial Court could/ought to have decided the issue of legality of the order, refusing prosecution sanction.
The Senior Advocate has again raised the issue of alleged improper investigation by the investigating agency and submitted that considering the aforesaid, the impugned order is to be set-aside and the trial Court should be directed to decide the issue of final/closure report afresh .
On the other hand, Manish Goyal, Additional Advocate General, assisted by A.K. Sand, Additional Government Advocate, representing the respondent State, has submitted that the issues raised in the protest petition and in this petition had attained finality upto the Supreme Court. The petitioner cannot be permitted to raise the same issues time & again. The Supreme Court had left open the question of sanction and legal submissions to be decided in an appropriate case, but not in this case again.
The Additional Advocate General has further submitted that the contention raised by the Senior Advocate for the petitioner that the trial Court should have decided the question of validity of order, refusing sanction is completely incorrect.
Once the Supreme Court has not entertained the plea of validity of order, refusing prosecution sanction, the trial Court has rightly refused to go into the said issue.
It has been further submitted that it does not lie in mouth of the petitioner to raise the question of improper investigation inasmuch as out of three issues, two issues were not pressed by the petitioner before the Supreme Court.
It is also submitted that the petitioner has been indulging in vexatious prosecution of the elected and popular Chief Minister of this State, who has changed the face of the State since he assumed the charge of the State in the year 2017.
The Additional Advocate General said that some forces are working against the popular Chief Minister to derail the progress of the State. Such a vexatious prosecution should be dealt with sternly.
It is submitted on behalf of the State that the petitioner claims to be a social worker as per his application under Section 156(3) CrPC. Such a person having criminal history of serious offences, as mentioned, cannot be said to be a social worker. It appears that the petitioner is an impostor who has been set up by the forces, who are adverse to Sri Yogi Adityanath, State and India. When they could not succeed to contain his rise in politics they had set up an impostor, the petitioner to be indulged in vexatious prosecution. The petitioner’s resources, to fight such a litigation, should be investigated.
It is, therefore, submitted that the petition is nothing but an abuse of process of the Court, and it is required to be dismissed with an exemplary cost.
The Court observed that,
The facts and issues have been extracted in detail herein above which are not in dispute. The question, which would require to be answered, is that whether it could have been opened to the learned trial Court to decide the issue of validity of the order, refusing prosecution sanction of the respondent when the Supreme Court had dismissed the criminal appeal and left the question of sanction to be answered in an appropriate case. As mentioned above, the only question which was raised by the counsel for the petitioner before the Supreme Court was regarding the validity of order, refusing sanction for prosecution under Section 196 CrPC. The Supreme Court, however, taking note of the facts & circumstances, did not answer the issue and dismissed the appeal and, thus, the judgment of the Division Bench had attained finality. The said issue could not have been decided by the trial Court again.
I find that the trial Court has rightly refused to go into the said question once it got decided by the Supreme Court. Once the question of sanction got finally settled, the trial Court could not have taken cognizance on the police report or on the protest petition as the accused, being a public servant, no cognizance could be taken without there being sanction by the competent authority for prosecution .
In the case, the question of validity of sanction got decided by the Division Bench of this Court against which the Supreme Court had dismissed the appeal and, therefore, the question of validity of order, refusing sanction for prosecution under Section 196 CrPC of the accused got finally settled, and the said issue is barred by principle of res judicata in subsequent proceedings of the same case. The trial Court has, therefore, correctly held that the said issue could not be re- opened while deciding the protest petition.
Once the sanction for prosecution was refused, the investigation, even otherwise could not have been carried out by an order under Section 156(3) CrPC as in the present case. The petitioner appears to be a busy body who himself is facing several criminal cases, and he has been fighting this case since 2007. The petitioner must have been incurring huge expenses in engaging counsels to contest this case before the trial Court, the Court and the Supreme Court. His resources to fight/contest the litigation should be a matter of investigation.
There may be some force in the submission raised by Manish Goyal, Additional Advocate General that the petitioner is an imposter who has been set up by forces opposing Yogi Adityanath, the Chief Minister of the State of Uttar Pradesh, and the forces, which do not want progress of the State of Uttar Pradesh and India. It is for the State to investigate the said aspect, however, the Court does not want to say anything further or give any direction in this regard.
With the aforesaid observations, the Court dismissed the petition with an exemplary cost of Rs 1,00,000 to be deposited in the ‘Army Welfare Fund Battle Casualties’ within four weeks, failing which the same shall be recovered as arrears of land revenue from estates/assets of the petitioner.