PARVEZ PARWAZ & ANR. VERSUS STATE OF UTTAR PRADESH & ORS.

PARVEZ PARWAZ & ANR. VERSUS STATE OF UTTAR PRADESH & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1343 OF 2022

(Arising out of SLP(Crl.)No.6190/2018)

PARVEZ PARWAZ & ANR. ……APPELLANTS

VERSUS

STATE OF UTTAR PRADESH & ORS. ……RESPONDENTS

J U D G M E N T

C.T. RAVIKUMAR, J.

1. Leave granted.

2. This appeal by special leave is directed against

the judgment and order dated 22.02.2018 passed by the

High Court of Judicature Allahabad in Criminal

Miscellaneous Writ Petition No. 21733 of 2008. The

unsuccessful petitioners are the appellants herein.

At the instance of the first appellant, for having

made (allegedly) a hate speech that led to the

incidents described as ‘2007 Gorakhpur Riots’ and for

such other offences related to the same, Crime

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No.2776/2008 was registered against Sh. Yogi

Adityanath, who was then a Member of Parliament and

some others. After registration of FIR No.764/2008

(Crime No.2776/2008), the State Government directed

investigation by the Crime Branch, Criminal

Investigation Department (CB CID) of UP Police.

Raising grievances against the investigation, the

appellants filed the abovementioned Writ Petition

under Article 226 of the Constitution of India

seeking, inter alia, the following reliefs:

“(i) Issue a writ, order or direction the

nature of mandamus directing and commanding the

respondents to investigate case crime no. 2776

of 2008 in fair and impartial manner by an

independent investigating agency and not by

Crime Branch of Criminal Investigation

Department as per Order dt. 3.11.2008.

(ii) Issue a writ, order or direction in the

nature of mandamus directing and commanding the

respondents to include appropriate section of

Indian Penal Code e.g. 120-B, 121, 121-A, 122,

112 I.P.C. and Section 3/4 Prevention of Damages

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to Public Property Act, 1984 and provision of

Religious Institution (Prevention of Misuse)

Act, 1988 in crime no. 2776 of 2008 and to

investigate the issue of conspiracy also.

(iii) Issue a writ, order or direction in the

nature of mandamus directing and commanding the

respondents to take disciplinary action against

the officers who at the relevant point of time

failed to act in accordance with law and had not

taken any action to initiate criminal action

against the culprits.

(iv) Issue a writ, order or direction in the

nature of mandamus directing and commanding the

respondent no. 1 to provide adequate security to

the petitioners.”

3. During the hearing, the Division Bench of the

High Court framed three issues for determination,

which are as follows:

(1) When the State fails to perform its statutory

and constitutional duty to investigate a crime in

a fair and impartial manner, whether the High

Court in exercise of its jurisdiction conferred

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by Article 226 of the Constitution is vested with

the power to transfer the investigation to be

conducted by any other investigating agency.

(2) Whether in the facts and circumstances of the

instant case, the State has failed to perform its

statutory duty to conduct a fair investigation in

the matter and the same is liable to be

transferred to some other independent agency to

ensure fair investigation.

(3) Whether the State can pass an order under

Section 196 Cr.P.C. 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 of India.

4. After hearing both sides and perusing the

relevant records, the Division Bench of the High

Court extensively dealt with all the issues and came

to specific conclusions with respect to the same.

Ultimately, the Division Bench of the High Court

dismissed the Writ Petition and held as follows:-

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“In view of the facts and discussions, we

do not find any procedural error either in

the conduct of the investigation or in the

decision making process of refusal to grant

sanction or any other illegality in the

order which may require any interference by

this Court while exercising its extraordinary power under Article 226 of the

Constitution of India.”

5. Aggrieved by the impugned judgment, the present

appeal by way of special leave has been filed by the

appellants who were the original petitioners before

the High Court.

6. Heard learned counsel for the parties.

7. Mr. Fuzail Ahmad Ayyubi, learned counsel for the

appellants fairly conceded at the outset that he did

not intend to press any submissions relating to

prayer numbers (i) & (ii), as sought in the writ

petition. The sole contention he sought to advance

before us is in respect of issue no. (iii) as

identified by the High Court, relating to denial of

sanction for prosecution of the accused under Section

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196 of the Code of Criminal Procedure. The foundation

for such a grievance is that the accused no. 1, who

was then a Member of Parliament and had allegedly

made a hate speech, had later on became the Chief

Minister of the State of Uttar Pradesh and thereby,

the Executive Head of the State. It is contention of

the appellants that in such a situation, it is the

Governor of the State who is empowered to consider

the question of grant of sanction in terms of the

Rules of Business. He submits that the Division Bench

of the High Court has failed to consider this issue

in an appropriate manner, including the Constitution

Bench judgment of this Court in M.P. Special Police

Establishment v. State of M.P., (2004) 8 SCC 788.

8. On the other hand, Mr. Mukul Rohatgi learned

Senior counsel for the State contends that nothing

survives in this matter except for a mere academic

exercise, as a closure report has already been filed

by the investigating agency. Additionally, he submits

that the judgment of this Court in M.P. Special

Police Establishment (supra) does not have any

relevance in the facts of this case as the underlying

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material did not amount to anything, let alone

establish a case for issuance of sanction. Learned

Senior counsel submits that the first CD containing

the recording in 2008 which was in a broken condition

while the second CD which was provided by the

appellants after a lapse of five years, was

determined to be tampered by the Central Forensic

Science Laboratory (CSFL). The third CD only provided

a voice sample. All these facts have been extensively

dealt with by the High Court before rejecting the

prayers of the appellants.

9. Having heard the parties and considered the

material placed on record, we are in agreement with

learned Senior counsel appearing for the respondent

that the subsequent events have rendered the present

appeal into a purely academic exercise. We will now

explain the raison d’etre for such a conclusion.

10. The words “No Court shall take cognizance”

employed in Section 196 of the Code of Criminal

Procedure (for short ‘CrPC’) and the consequential

bar created under the said provision would

undoubtedly show that the bar is against ‘taking of

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cognizance by the Court’. In other words, it creates

no bar against registration of a crime or

investigation by the police agency or submission of a

report by the police on completion of investigation

as contemplated under Section 173, CrPC [Refer:-

State of Karnataka v. Pastor P Raju, (2006) 6 SCC

728)].

11. It appears from the record that the forensic

report of the CD which forms the basis of the

prosecution was found to be tampered and edited as

per the report dated 13.10.2014, submitted by the

CFSL which position has not been disputed by the

appellants herein.

12. In the instant case, a short affidavit was filed

on behalf of the second respondent wherein it is

stated that the investigation was closed vide FR

No.1/17 dated 06.05.2017. This position is not

disputed by the appellants. Thus, as of now, the

position that emerges is that the investigation has

culminated in a closure / refer report. Learned

counsel for the appellants has informed us that a

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protest petition has been filed which is pending

consideration before the trial Court.

13. In the aforesaid circumstances, we do not think

it necessary to go into the contentions raised by

both sides on the issue of denial of sanction for

prosecution and the legal pleas sought to be raised

in relation to the said issue. However, we think it

appropriate that the legal questions on the issue of

sanction be left open to be considered in an

appropriate case.

14. Consequently, this appeal is dismissed subject to

the above observations. Pending applications, if any,

stand disposed of.

....................CJI.

(N.V. RAMANA)

....................J.

(HIMA KOHLI)

....................J.

(C.T. RAVIKUMAR)

NEW DELHI;

August 26, 2022

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