-Report by Anjana C
The Hon’ble Supreme Court of India has held in the case of Parvez Parwaz & Anr. v. State of Uttar Pradesh & Ors. that Issue of Sanctions to be considered in an appropriate case.
FACTS
This is a special leave petition against the High Court of Allahabad’s judgment dated 22.02.2018 filed by the unsuccessful petitioners, henceforth referred to as the appellant. The first appellant, in this case, was alleged to have made hate speech leading to the “2007 Gorakhpur Riots” and other offenses leading the same to be registered against Sh. Yogi Adityanath, a then Member of Parliament, and others. The investigation was conducted by the CID (Criminal Investigation Department) of the UP Police. Grievances against this investigation, the appellant filed a petition under Article 226 of the Indian Constitution. In the writ petition, a prayer was made for the following reliefs:
a. A writ of mandamus directing the respondents to investigate fairly and impartially by an independent investigating agency.
b. To include all appropriate sections of IPC and Prevention of Damages to Public Property Act, 1984, along with the Religious Institution (Prevention of Misuse) Act, 1988. It also asked for the investigation of an issue of conspiracy.
c. To take disciplinary actions against officers who failed to act following the law and did not take any action to initiate criminal liability against the culprits.
d. To command the respondents to provide the appellants with sufficient security.
The Division Bench framed three significant issues that needed to be addressed:
a. Whether to facilitate a fair and impartial investigation, the High Court is vested with the power to transfer the investigation to another body.
b. Whether when the High Court fails to conduct a fair and impartial investigation, the High Court is required to transfer the investigation to an independent authority.
c. Whether the State has the power to pass an order under Section 196 of Cr.P.C. on someone in a criminal case who gets elected as a Chief Minister in the meantime and it the Executive Head of the State as per Article 163 of the Indian Constitution.
After assessing both sides of the argument, the Court dismissed the petition because there was no procedural error in the manner of the conduction of the investigation that was noted or any other illegality requiring interference by the Court about its extraordinary power under Article 226 of the Indian Constitution. Following this dismissal, the present appeal was filed. The counsel for the appellants stated that he would only want to readdress the issue of denial of sanction for the prosecution of the accused under Section 196 of the Code of Criminal Procedure.
Appellant’s Contentions:
In a situation such as this, where the accused is of high status, the Governor has the power to consider the question of grant of sanction, which in this case, the High Court has failed to consider appropriately.
Respondent’s Contention:
The Counsel states that nothing survives in this matter except academic exercise due to a closed report filed by the appointed investigating agency. The Counsel, addressing the issue of sanctions, states that the first CD containing the
recording was broken, the second was tampered with, and the third simply had a voice sample. These have all been thoroughly examined before the dismissal of the issuance of sanctions.
Judgment:
The Court observed that the issue of the third CD regarding the tampering and editing of evidence and declared to be undisputed. An affidavit filed on behalf of the second respondent also stated that the investigation was closed. It has been noted that the Counsel for the appellants has filed a protest petition that is pending in the Trial Court. The Court found it unnecessary to engage with the contentions put forth by both parties. However, it was said that the legal questions about the issue of sanctions must be left open and considered in a more appropriate case. For the above reasons, this appeal and any other pending applications stand disposed of.