New Delhi: If a recent exchange between the Uttar Pradesh government and state’s crime branch-central investigation department (CB-CID) is taken into account, the government appears to be shielding five BJP leaders, including chief minister Adityanath, in a hate speech case filed after the 2007 Gorakhpur riots.
The CB-CID, which was recently denied sanction by the state government to prosecute the leaders after having waited for almost last two years, appears to to be softening its stand on the case and has written to the state government saying there is no reason to transfer the case to any central investigative agency. However, the letter also indicates that evidence existed and could have been probed further.
This comes at a time when the Allahabad high court, on July 7, is set to decide whether the case should be moved to the Central Bureau of Investigation (CBI) in light of the fact that Adityanath, the primary accused in the case, is the current chief minister and thus is constitutionally placed to facilitate the CB-CID’s investigation. This conflict of interest was noted by the high court on April 28, 2017.
The Wire had earlier reported that while hearing a writ petition, the high court had come down heavily on the state government for failing to grant sanction to prosecute the five BJP leaders – Adityanath, then mayor of Gorakhpur Anju Chaudhary, then MLC Y.D. Shukla, current MLA of Gorakhpur city Radhamohan Das Agarwal and former minister Shiv Pratap Shukla.
The court had asked the chief secretary, Rahul Bhatnagar, to explain why despite the fact that the CB-CID had submitted its report – which sought prosecution in the case – to the state government way back in 2015, it had failed to act.
During his deposition on May 11, however, Bhatnagar, in an affidavit, had told the court that the home department had denied sanction to prosecute the leaders as the CB-CID could not furnish adequate evidence. He had also said that the voice sample in the speech could not be ascertained by a Delhi forensic lab as belonging to Adityanath and other accused leaders.
Responding to this, Syed Farman Naqvi, the counsel for the petitioners, Pervez Parwaz and Asad Hayat, had told The Wire that the reason given by the state government is inadequate as no one had prevented the forensic department from taking direct voice samples of the accused leaders and that it can still do so. He had expressed his surprise that the government had prioritised a minor lacuna over a detailed investigative report to deny sanction to the CB-CID for prosecution in the matter.
Amidst allegations by the petitioners that Adityanath could very well influence the outcome of the case, the letter written by G.P. Sharma (DG, crime) to the chief secretary on May 9 may heat up the controversy further.
According to a report in Scroll.in, Sharma wrote to chief secretary Bhatnagar saying that the CB-CID, in its investigation, the report of which was submitted in 2015, had found the five leaders guilty of making provocative speeches with intent of causing riot, outraging religious feelings of a community and promoting enmity between two communities, and had sought prosecution under various sections of the Indian Penal Code.
Sharma, however, added that since the state government has already denied prosecution, the matter could be closed and that there was no reason any other agency should investigate the case further.
“Prakaran mein vaadi ko saksham nyayalaya mein apna paksha rakhne ka vikalp uplabdh hai, ataiwa vivechana kisi aur agency ko supurd karne ka aauchitya pratit nahin hota (The petitioners have the option to move the court and present their appeal, or else there is no reason to transfer the case to any other agency),” wrote Sharma, explaining the CB-CID’s standpoint to the chief secretary, since the government had already forbidden it to take action in the matter.
While writing about the forensic report on the voice samples of the accused leaders, he said that although the laboratory found that the voice samples in the video matched that of Adityanath, its report remained inconclusive as direct voice samples were not taken.
Ironically, he added, “Vaidh sample seedhe shrot se prapt kiya jaan chahiye tha (Legitimate samples should have been taken from direct sources).”
The contentious speeches, allegedly made by these leaders in front of the Gorakhpur railway station on January 27, 2007, sought “revenge” for the death of a Hindu boy during a clash between the Hindus and Muslims on Muharram that year and had led to a largescale riot in Gorakhpur. At least two people were killed, several were injured and properties worth crores owned by Muslims destroyed during the riots that continued for seven days.
The petition, filed in 2008 and which ran into several bureaucratic and legal delays, requested the court to transfer the case to the CBI. In 2015, when the CB-CID submitted its report to the then Samajwadi Party government, the court began to hear the petition more regularly.
But with the government in the BJP’s hands at the moment, the court has the additional issue of “conflict of interest” to resolve.
As the petition was still being heard, Adityanath had appeared in a television show Aap Ki Adalat, where he not only acknowledged the speech as his own but also glorified and justified it.
This had prompted the petitioners to add an application to the original petition, which said that the court should count the interview as Adityanath’s extra-judicial confession and evidence for inciting the mob against Muslims.
On May 11, when the government informed the court that it had refused sanction to the CB-CID to prosecute the leaders, the court had taken a firm stand and had decided to re-examine the government’s decision to deny prosecution.
“It is painful and disturbing from a perusal of the affidavit of compliance filed today by the chie secretary of the state by which it is apparent that the sanction for prosecution of the accused has been refused by the principal secretary (home) U.P.Lucknow on 3.05.2017 but the same was not brought into the knowledge of the court by Sri Vimlendu Tripathi, the learned government advocate, while the court was passing the order dated 4. 5.2016, calling upon the chief secretary of the state to clarify the fact regarding approval of D.F.R (Draft Final Report of the CB-CID) or grant of sanction for prosecution is awaited or not,” the two-judge bench, comprising Justices Umesh Chandra Srivastava and Ramesh Sinha, said in the May 11 order, while pulling up the government counsel for misleading the court.
The bench had also asked the government counsel to file a reply to the application moved by the petitioners to the original PIL, essentially asking him to explain why it should not count Adityanath’s television interview as additional evidence against him.
The government counsels too now find themselves in a peculiar situation. Until a few months ago, they were explaining to the court the progress of the state government made in the case and implicitly supporting the prosecution of the leaders, although through the CB-CID and not through the CBI as the petition had requested.
However, with the shift in regime, the government counsels are in a tight spot.
Meanwhile, Vimlendu Tripathi, the government counsel who was arguing the case for the last few years, requested to be relieved from the case, which the government immediately approved. It has now appointed advocate Neeraj Tripathi, son of BJP leader Keshari Nath Tripathi, currently the governor of West Bengal, to fight the case.
While the previous Samajwadi Party government gave no reasons for delaying the decision to sanction prosecution in the matter for almost two years, the case has taken an awkward turn with Adityanath, the primary accused in the case, in a position of power.
His government’s decision to stop prosecution in the matter and its attempts to convince the court not to shift the case to a higher agency, in addition to the change in the CB-CID’s team of lawyers at the high court, may lead to raised eyebrows in political circles and the general public. It remains to be seen how the court responds to these controversial gestures by the state government in its next hearing on July 7.