HC summons UP Chief Secretary with records of Gorakhpur riots in which CM Adityanath is named accused: The petition bt social worker Pervez Parvaaz on which the order was passed on May 4 stated that the CB-CID, which is an arm of the UP police and is currently probing the riots, may not conduct an impartial inquiry.
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The Allahabad High Court on Thursday summoned the chief secretary of Uttar Pradesh to appear in person in court on May 11, also directing him to bring along all documents relating to the 2007 Gorakhpur riots in which the then local MP and current chief minister Yogi Adityanath was named as an accused. A division bench of justices Ramesh Sinha and Umesh Chandra Srivastava directed the chief secretary to appear in person on May 11 and file a personal affidavit besides producing all documents relating to the 2007 riots, including the sanction given by the state government to prosecute the accused.
Sabrangindia had reported on May 2, 2017 how the court was faced with a piquant situation when the chief minister was now required to decide whether to grant prosecution against himself. “Can a man be judge of his own cause?” was the stiklish question.
The order was passed on a petition filed by Parvez Parwaz, the complainant in the FIR that was lodged at Cantt police station of Gorakhpur in connection with the riots, and Asad Hayat, a witness in the case. In the petition, apprehensions were raised that the CB-CID, which is an arm of the state police and at present probing the riots, may not conduct an impartial inquiry and a prayer was made that directions be issued for handing over the investigation to an independent agency.
Under Section 196 of the Code of Criminal Procedure (CRPC), sanction to prosecute for offences of incendiary and inciteful speech (sections 153a and 295 of the Indian Penal Code is required from the government before criminal prosecution can begin. Even the First Information Report (FIR) for hate speech in this case was lodged only after the High Court passed an Order to the effect on September 26, 2008. Even this was challenged by co-processionist and fellow offender, Anju Chowdhury in the Supreme Court(SC) that finally on December — 2012 affirmed the High Court order and passed significant observations on how a second FIR can be registered when aspects of the offence have not been captured in the original FIR registered by the police on the incident. Initially the Chief Judicial Magistrate(CJP) had rejected the application of Parvez Parvaaz on ground that the police had already registered on FIR invoking section 302 on six unknown persons. Both the High Court Order and Supreme Court order (that may be read here) are significant in terms of establishing legal precedents
In the present case, pending in the High Court since 2008, where the social activist petitioner had also prayed for transfer of investigation to an independent agency, the state government under Samajwadi Party scion, Akhilesh Yadav had, typically dragged its feet. The government came to power in April 2012 but it was only in 2015 that the state government finally gave a compliance report stating that investigations by CBCID had been completed but approval of higher authorities for further action had not yet been granted! In January 2017, months before the state went to the polls, the CBCID finally told the High Court that offences had been made out and the matter had been referred for sanction under section 196 to prosecute the accused persons under sections 153a and 295 of the CRPC.
Thereafter the matter came up on March 10 (just a day before the Holi break) and then on April 24 when again the state government advocate told the court sanction was awaited and that the Court was about to give directions to the state government to take a decision on whether it was according sanction or not under section 196. On the next date of hearing, April 28, 2017, advocate for the petitioner, Farman Naqvi strongly argued that no person, however highly placed can be judge of his own cause and hence urged the Court to assume the power of sanctioning authority under Article 226 of the Indian Constitution and adjudicate whether or not this is a fit case to prosecute the accused or not.
Significantly, on a previous date of hearing in the matter, the petitioners’ counsel S F A Naqvi had raised doubts over the CB-CID’s ability to conduct a proper inquiry as “the person against whom sanction for prosecution has been granted by the state government has himself become the head of the state”. Naqvi had made the submission in response to an affidavit filed by the CB-CID wherein it had been stated that the state government had granted sanction, under Section 153A of the Indian Penal Code (inciting communal violence), to prosecute all those who have been named in the FIR including Yogi, the then Gorakhpur Mayor Anju Chaudhary and local BJP MLA Radha Mohan Das Agarwal.
The story begins in 2007, 27 January when prior to a Muharram procession, at a "Warning Meeting", Adityananth and other members of the Hindu Vahini and the elected officials of the Bharatiya Janata Party (BJP) were creating an intra-community polarisation through their speeches. A local citizen and social activist, Parvez Parvaaz passing by heard the speech of Adityanath when he said,
“if the blood of one Hindu be shed then they will not register any FIR with the administration against the bloodshed of one Hindu in the times to come, instead they will get ten persons (Muslims) killed. If damage is done to the shops and properties of Hindus, they would indulge in similar activities towards the Muslims. Anything can be done to save the glory of indus and all should prepare for a fight. Amongst others, it was also stated in the complaint as under: 'we will not allow lifting of Tazia anywhere in the Gorakhpur City and the Gorakhpur District and we will also celebrate our Holi with these Tazias. He stated that we will have to take harsh steps for the welfare of Hindus and we do not want that the generations to come remember us with bad names. He stated that I do not understand that we will be ready to take up those names, therefore, be ready to fight your final battle.
Adityanath was, shamefully a Member of Parliament when he uttered these words. He further said that
'once you stand up then you see that Gorakhpur will remain peaceful for many years. If the administration does not take revenge of the murder of the Trader’s son, then we will take ourselves, we will ourselves take revenge of that murder. Member of Parliament Yogi Aditya Nath, in his speech, termed the administration as worthless and eunuch and the incidents as Government sponsored terrorism and challenging the democratic Government he stated that they will destroy the law and order and will take law in their own hands."