Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

(Arising out of SLP(Crl.)No.6190/2018)
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
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
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
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:-
“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
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
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
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
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
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.
August 26, 2022


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