Hate speech case: High Court allows challenge to government ‘no’ on sanction to prosecute Yogi Adityanath

Source – indianexpress.com

THE ALLAHABAD High Court on Monday permitted the petitioners to challenge the UP government’s refusal to grant sanction to prosecute Chief Minister Yogi Adityanath — the prime accused in the 2007 Gorakhpur hate speech case. A two-member bench dismissed the UP government’s objections to the petitioners’ contention that the prime accused had become the CM of the state and is thus, influencing the case in his favour. It also pulled up the state advocate general for being absent during hearings in the “important and serious case”.

While hearing final arguments in the case, the bench had last week observed that people “cannot be left remedy-less” while asking the state counsel to substantiate what legal remedies were the petitioners left with when the state, in its May 3 order, had refused to grant the mandatory sanction for the prosecution of the chief minister.

State Advocate General Raghvendra Singh, appointed in April by the new government, on Monday “contradict(ed)” his fellow counsel, Additional Advocate General Manish Goel, when he said a magistrate did not have the power to take cognisance of a case and begin trial despite a refusal by the Centre or state in granting sanction to prosecute.

Last week, additional advocates general Manish Goel and A K Mishra had argued that the petitioners did not need to challenge the UP government’s order in court because they had an “alternate remedy” of filing a protest petition before a magistrate if they were not satisfied with the investigation.

Dismissing both Singh and Goel’s arguments as “meaningless”, the bench told Singh: “There will be absolutely no alternate remedy for the petitioner… Decide amongst yourselves what argument you want to put forward… There is lack of conferencing amongst yourselves.”

“We are passing a restraint order on the advocate general to remain here in Allahabad. You must have come down today and that is why you are not on the same page (with fellow counsels)… Stay here at least for this case… For most of the time, you are away in Lucknow when the principal seat of the advocate general is Allahabad… This is such a serious matter,” it added.

Eventually noting that the state counsel could not “substantiate” its primary objections to the petitioners’ request for an amendment to the original writ petition, the bench dismissed the UP government’s plea for a rejection of the amendment.

The bench gave the petitioners’ counsel, Farman Naqvi, a day to submit an amended writ petition, which will be heard on August 9. The amended writ petition will challenge Adityanath’s May 3 order refusing to grant sanction to prosecute himself in the case.

“In the fresh petition, we are highlighting the imminent bias arising in the legal process by virtue of the changed circumstances of the prime accused becoming the CM of the state overseeing the investigation of the case,” Naqvi told The Indian Express.

The original writ petition filed by Parvez Parwaz and Asad Hayat — through Naqvi — had asked for the probe of the case to be transferred to an independent agency because the “UP Police was deliberately delaying investigation”.
On Monday, Parwaz said he will request the state government to provide him and his family security cover. He said he will write to the Gorakhpur district administration for the same. “Our amendment application has been accepted by the court. I had sought to take into view the changed scenario and requested that the decision of the state to refuse sanction to prosecute the chief minister be rejected. While the next hearing is due on August 9, the other side is not left with any option. Thus, I fear for my life now even more,” he added.

“While I had requested the court in 2008 also for security, I will now write to the district administration. I know that the state is headed by one of the accused in the case but where else can I go?” he said while denying that he has received threats.