The Supreme Court reserved its verdict on Wednesday on a petition challenging the Allahabad High Court order, refusing to prosecute Uttar Pradesh Chief Minister Yogi Adityanath in an alleged hate speech case of 2007.
A Bench comprising Chief Justice of India N.V. Ramana, Justice Hima Kohli and Justice C.T. Ravikumar were hearing a petition filed by Parvez Parwaz, alleging that Adityanath had made anti-Muslim remarks, while addressing the activists of ‘Hindu Yuva Vahini’ during a meeting held in Gorakhpur on January 27, 2007.
The petition, filed through Advocate Fuzzail Ayyubi, challenged the decision of the Uttar Pradesh Government of May 3, 2017, refusing to prosecute the accused in the case and also the closure report filed in the case.
Parvez said he had earlier approached the Allahabad High Court, which dismissed the petition on February 22, 2018, following which he filed the Special Leave Petition before the Supreme Court.
Advocate Ayyubi contended that the issue related to whether the state can pass an order under Section 196 CrPC in respect of a proposed accused in a criminal case, who in the meantime gets elected as the Chief Minister and is the Executive Head as per the scheme provided under Article 163 of the Constitution, had not been dealt with by the Allahabad High Court in its order of February 22, 2018.
The question thus arose as to whether the Chief Minister, as an executive head, could participate in the sanction process. The Counsel highlighted other issues raised before the High Court and stated that the first issue was that investigation did not inspire confidence and therefore, it needed to be transparent.
The Bench, led by the CJI, said that once the closure report was filed in the case, there was no question of sanction. It further observed that this was an academic question, therefore, the question of sanction did not arise.
Advocate Ayyubi replied that prima facie a case was there, as there was a hate speech, a DVD was found, an FSL report had come and a draft final report (DFR) was prepared. A sanction was sought on this basis from the UP government, but the Law department and the Home department of the state denied the same. The departments itself decided and declined the issue.
Appearing for the state of UP, Senior Advocate Mukul Rohatgi contended that nothing remained in the case as CSFL had stated that the CD in question, which had the alleged hate speech recording, was tampered and fake.
There was a closure report to that effect as well, which was accepted.
The Counsel for the state government further said that the matter did not go to the Chief Minister as only when there was a dispute between the Law Department and the Home Department, the CM was the final arbiter.
In this present case, the Law Department had opined that if the CD was tampered and fake, there was no question of any sanction and the Home Department had concurred with the same.
The petitioner’s Counsel said that as far as the DFR was concerned, the investigation agency had clearly indicated that the crime branch had found offences under Section 143, 153, 153A, 295A and 505 of IPC.
He said the statements made by Yogi Adityanath were in the public domain and that the Chief Minister had himself admitted during a television interview that he delivered the alleged speech, which amounts to extra-judicial confession. It was immaterial whether the CD was found broken or tampered, he added.
Rohatgi said the petitioner had submitted a CD in 2008, which was broken and after five years, he gave another CD, which was found to be tampered. The petitioner then gave a third CD. The government Counsel said that the CDs were either tampered or broken. There was also an absence of CFSL report, which was later summoned by the Law Department.
Following these facts, the Law Department took the decision, which was concurred with by the Home Department.
The government Counsel said that though the petitioner claimed he was a public-spirited individual, his history showed that he had criminal cases against him, including being detained under the National Securities Act, 1980.