A Doctored CD, Refusal to Prosecute CM Defy Principles of Law & Natural Justice: Adityanath Hate Speech Case

Drama will once more unfold before the Allahabad High Court on Friday, July 7 as the case begins hearing after the summer vacation. Justice Ramesh Sinha previously hearing the case has been transferred to the Lucknow bench, Justice Krishna Murari will preside. Petitioner Parvez Parvaaz has filed a strong reply to the state’s rejoinder documenting how a doctored CD and an ante-dated report seek to cover up the crucial evidence in this case

Yogi Adityanath

The Allahabad HC will today continue hearings in the politically sensitive and high profile case where present chief minister, Yogi Adityanath faces prosecution for hate speech. On May 4, 2017, months after being sworn in as chief minister, the CM had faced the sticklish question, Can a man however powerful, be judge of his own cause.  By May 11, in an affidavit filed by the current chief secretary, Rahul Bhatnagar, the government allowed itself that right and told the court that no sanction to prosecute was being granted.
This case will be heard today after the summer vacation. The petitioner, social activist Pervez Parvaaz, has in reply to the state government’s rejoinder taken strong objection to the inaction of the government of Uttar Pradesh on granting sanction for the prosecution from 2015 itself. The reply states that the state government’s own affidavit of compliance dated 10.5.2017 and a subsequent letter dated 10.7.2015, sanction had been recommended to the Home department. However, for some inexplicable reason, the state government did not act on this recommendation. Finally and very hurriedly the matter was taken cognizance of only after accused no 1 became chief minister of Uttar Pradesh in May 2017.
The petitioner has further alleged in his reply that an anti-dated order dated 3.5.2017 was questionably passed by the state government which is under challenge in an amendment application filed in the proceedings, separately.
Since 2008, the petitioners have alleged gross delay and inaction by the state authorities further stating that the that police authorities of the State were hand in gloves with the accused persons from the very beginning and were not only delaying the matter but also offering undue advantage to the accused persons who hold important positions being member of Parliament and other accused persons, who hold important positions and are very close to the accused No.1.
Shockingly, the letters recommending sanction to prosecute and several other key documents were kept secret and way from the petitioner and the sole motive, it is alleged is to provide benefit to the accused.
Prompt action began only after the assumption of charge by accused No.1 as chief minister of State, and mysteriously an alleged report of Central Forensic Lab New Delhi dated 13.10.2014 has been pulled out of the state government’s that having emerged from somewhere after remaining hidden for more than 3 years.  This ‘hidden’ report that has suddenly surfaced submitted by Central Forensic Science Lab, is being used to dilute the content of the violently inciteful speeches of accused no 1 made in 2008. Mysteriously, a C.D. which the petitioner had submitted containing speeches of accused no.1 dated 27.1.2007 and which is part of the official record (contained in an application dated 28.4.2008 was submitted before Chief Judicial Magistrate, Gorakhpur along with an affidavit dated 28.04.2018) –and which contains the speeches and the FIR contains the controversial speeches of the accused no 1 for which he is sought to be prosecuted— has not undergone any forensic examination at all, it is alleged.  Instead some other CD having named as “Saffron War” was examined by the CFS lab as is evident from paragraph 7 of the report dated 13.10.2014
(Annexure 7-A to the affidavit of compliance filed by the Sri Rahul Bhatnagar the Principal Secretary Home dated 10.05.2017).
The petitioner has hence alleged that the actual C.D. that contained recordings of the hate-ridden speeches which was given to the investigating officer was never placed for obtaining Forensic report before CFS Lab (kindly refer to CFSL report dated 13.10.2014)!  Hence the chief secretary’s report is a white wash. Further it is clear from a letter dated 9.5.2017 addressed to respondent no.1 by the CBCID that there were two reports of CFSL dated 13.10.2014 and 14.10.2014 were received by CB CID, but only one report has been placed before this Hon’ble Court and not the other. The petitioner has therefore alleged that the respondents are not approaching and exercising their power with clean and independent minds between respondents and accused persons and there is also meeting of minds to destroy evidences. No explanation has been provided by the respondents at any stage till date that why the report from CFSL lab was not obtained at all until 2014 although the CD was handed over to Court below and to I O of the case in the year 2008 itself.
In 2014, during the hearings of this case the petitioners had filed a supplementary affidavit praying for summoning Rajat Sharma, editor Indian TV as a witness. In the Aap ki Adalat programme telecast on 30.8.2014, conducted by Rajat Sharma, accused no 1, present chief minister of Uttar Pradesh had been questioned on the controversial speech made by him on 27.1.2007 in which Adityanath had admitted to the content of the speech.
The petitioner, Parvez Parvaaz has also argued that the post facto report of the state government dated 13.10.2004 is baseless and the order of the state government dated 3.5.2017 refusing sanction is, pm grounds of substance and reliability, liable to be quashed.
It is evident that there are serious issues of manipulation of documentation and evidence. The report of the CFSL dated 13.10.2014 that refers to previewing videos of folder 2nd Apr 27 2013,the petitioner alleges, were videos which were never at any point of time handed over by petitioner to anyone.
The Order of the state government of Uttar Pradesh dated 3.5.2017 refusing to grant sanction for prosecution u/s. 153-A of the I.P.C. is a document which had no relevance in the eyes of law because there is clash of interest cropping up after 20.3.2017 as on that date accused No.1 has assumed the charge of Chief Minister of State of U.P. That it is most important aspect that the impugned order dated 3.05.2017 is an antedated and manufactured document created by the respondents to help the accused no 1. This fact is evident from the fact that when this matter was taken up on May 4, 2017 by the Allahabad High Court if the impugned order existed at all the same would have been referred by the respondents during the course of hearing but no such fact was brought to the notice of this court on May 4, 2017. This fact was noticed by the Court in its order dated May 11, 2017. As the impugned order was not all in existence on May 3, 2017 hence it was not brought to the notice of the Court on May 4, 2017.
The grant of sanction for prosecution u/s. 196 (1) Cr. P. C. is a function to be performed by the State of U.P. in the present case. Hence, the state of U.P. Which is headed by accused No.1 and any order refusing sanction for prosecution u/s. 153-A Cr.P.C. while exercising power u/s. 196 Cr.P.C. cannot be passed, which attracts the basic principle of law i.e. “Nemo judex in causa sua or nemo judex in sua causa, a Latin phrase that means, "no-one should be a judge in his own cause,". It is also popularly known as the rule against bias. It is minimal requirement of the natural justice that the authority giving decision must be composed of impartial persons acting fairly, without prejudice and bias.
Bias means an operative prejudice, whether conscious or unconscious, as a result of some preconceived opinion or predisposition, in relation to a party or in issue. The Home Department of Uttar Pradesh is headed by the Chief Minister of U.P. The Principal Secretary (Home), the respondent no. 1 who passed the impugned order dated 3.5.2017, provides the departmental leadership to his team consisting of Secretaries, Special Secretaries and other officers. The Home Department handles all policy matters related to law & order and police administration. It is the pivotal point of communicating all security related issues with the Central government as well as other State governments. The accused No.1 has a personal interest in saving himself from criminal prosecution of a very serious nature of crime and hence order dated 3.5.2017 which is now under challenge, is nothing but an order passed by accused in his own favour through its subordinate the Principal Secretary, Home. It will be appropriate here to mention that portfolio of the Home Affairs of State of U.P. is also being held by accused No.1 besides charge of Chief Minister and the Principal Secretary of the Home Affairs is under direct control of the accused No.1 on the day when the impugned order was passed. There is personal bias manifest itself and affected the order dated 3.5.2017.
The Law lays down certain principles of natural justice. In the Mineral Water Development Corporation Ltd. vs. State of Bihar case as well as in Baidyanath Mohapatra vs. State of Orissa and Additional District & Sessions Judge vs. Registrar General of High Court of M.P. and others. It is well established that fair decision cannot be delivered by a person who himself had got personal interest in probing and deciding the issue in question. In the case of Gullapalli Nageswara Rao vs. APSRTC also, the Supreme Court had held that Secretary of the State who had passed the order was biased in favour of the State and hence decision which was taken was biased and could not be sustainable in the eyes of law. In the present case, the respondent No.1 who is working under the accused No.1 had assumed charge of a Judge, a Prosecutor of an accused, which are combined together and had taken impugned order dt. 3.5.2017 in favour of the accused, his immediate superior under whose direct subordination he is placed.
The present case is a classic case, where accused No.1 had assumed charge of an authority and passed the impugned order in his favour which is unheard of in the annuls of justice, hence the same is liable to be quashed. It is further submitted that Principal Secretary Home, who had passed the order dated 3.5.2017 apparently is a biased authority having close proximity with accused No.1being his immediate subordinate in Home Ministry of State of U P whose Home Minister is accused no. 1, and hence any order passed by the respondent No.1 in favour of accused No.1 is not sustainable in the eyes of law. Moreover by bare reading of the impugned order dated 3.5.2017, it reflects that it is a cryptic order and shows non-application of mind and is signed under administrative duress and departmental bias, although power granted by the statute under section 196 Cr.P.C. is very sensitive issue, which was not performed in the manner, which was supposed to be done. No reason had been given except certain case laws had been mentioned in the impugned order, which itself reflects that the impugned orders was passed by obtaining legal opinion from some expert legal mind and hence order is also not sustainable in the eyes of law because the same was not passed independently applying his own mind besides being biased and having clash of interest writ large on the face of record.
The principle that 'No man shall be a judge in his own cause' i.e. to say, the deciding authority must be impartial and without bias. It Implies that no man can act as a judge for a cause in which be he has some Interest, may be pecuniary or fear of prosecution or otherwise. Interest affords the strongest proof against impartiality. The emphasis is on the objectivity in dealing with and deciding a matter. Justice Gajendragadkar, as then he was, observed in a case reported in AIR 1965 SC 1061, M/s Builders Supply Corporation v. The Union of India and others, “it is obvious that pecuniary interest, howsoever small it may be, in a subject matter of the proceedings, would wholly disqualify a member from acting as a judge".
Lord Hardwick observed in one of the cases, “In a matter of so tender a nature, even the appearance of evil is to be avoided." Yet it has been laid down as principle of law that interest would disqualify a Judge to decide the matter even though it is not proved that the decision was in any way affected. This is thus a matter of faith, which a common man must have, in the deciding authority. In the present case this principle is directly applicable wherein the deciding authority has some personal Interest in the matter. This may be in the shape of some personal relationship with one of the parties which is ascetically evident from the records.  In the present case the personal bias arises out of the close professional relationship between Principal Secretary Home of State of U P with the Chief Minster as well the Home Minister, the accused no. 1.
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