Oh! What a tangled web we weave when first we practice to deceive

∼ Walter Scott

Allahabad: Two months ago, the Uttar Pradesh government told the high court here that it would not prosecute chief minister Adityanath on charges of inciting and leading widespread anti-Muslim violence in Gorakhpur and nearby districts a decade ago. In response to a question the bench posed at the time, his government has now submitted a “counter affidavit” to the Allahabad high court providing a list of reasons to justify that decision.

However, the claims in this 126-page document submitted earlier this month contradict official records since 2007 when the violence occurred. Though there is no evidence that the police have ever questioned Adityanath, leave alone investigated him, to verify the charges of rioting, arson, assault and murder, the counter affidavit is a virtual exoneration of the BJP politician. It also doesn’t answer a critical question the court asked in April: can the chief minister legally decide his government’s position on that criminal case given that he is “a prime accused” in it?

Neither Adityanath, who became chief minister in March, nor his co-accused have ever denied the allegations entered in the FIR in the case. In a television interview in 2014, Adityanath not only proudly admitted giving the incendiary anti-Muslim speech that, as the FIR notes, caused widespread violence and murders, but said he’d do it all over again if needed. Yet, the counter affidavit pointedly refuses to accept that as evidence.

A brief chronology

A day after mobs, allegedly incited by Adityanath, rioted on January 27, 2007, Parvez Parwaz, a resident of Gorakhpur, sought to file an FIR. When the police stonewalled him, he moved the high court, which ordered the FIR registered. That was done in November 2008. The FIR invoked the following charges against Adityanath and others under the Indian Penal Code (IPC):

Murder; attempt to murder

Criminal conspiracy

Unlawful assembly; rioting; dacoity

Trespass; destruction of property; assault; wrongful restraint

Wantonly giving provocation with intent to cause riot

Promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony

Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs

Asserting that a class of persons be deprived of their rights as citizens

Injuring or defiling place of worship with intent to insult the religion of any class

Mischief by fire or explosive substance intending to cause destruction of a place of worship

Imputations, assertions prejudicial to national-integration

As soon as the FIR was registered, the Crime Branch of the Criminal Investigation Department (CB-CID) of the state police was asked to investigate. But Parwaz moved the high court again expressing a lack of faith in the CB-CID. He asked the court to transfer the investigation to an independent agency like the Central Bureau of Investigation (CBI) and monitor it itself. This is the case in which the government has submitted the counter affidavit.

Both this case and the CB-CID’s inquiry had stalled in 2008 after a co-accused, BJP leader Anju Chaudhary, who was Gorakhpur’s mayor when the alleged offence was committed, moved the Supreme Court, which stayed all proceedings until the matter was heard. The apex court finally rejected Chaudhary’s petition in December 2012, paving the way for the high court hearings on Parwaz’s petition as well as the CB-CID investigation to resume.

A little over two years later, in April 2015, the CB-CID decided there was enough ground to prosecute Adityanath, who, meanwhile, had been elected as MP from Gorakhpur for a fifth consecutive time. But there was a legal hitch. As per the law, the CB-CID needed sanction from the state government to start the trial for the following charges:

Promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony

Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs

Imputations, assertions prejudicial to national-integration

Accordingly, the CB-CID wrote to higher-ups in then chief minister Akhilesh Yadav’s government seeking such sanction to prosecute Adityanath. But for two years until its tenure ended this March, the Akhilesh government dragged its feet on that request. On a parallel track, the high court bench hearing Parwaz’s petition last year asked for an update on the CB-CID’s investigation. That too fetched no result from the Akhilesh government.

In the assembly elections in March, the BJP ousted Yadav’s Samajwadi Party from power and Adityanath became the new chief minister. Action suddenly began to move faster on both fronts: the CB-CID’s request for sanction for prosecuting Adityanath and the state’s response to Parwaz’s petition before the high court. In May, the government told the high court it had denied sanction to prosecute. Parwaz objected to the government’s decision, which prompted the high court to ask for an explanation.

Enter the counter affidavit.

The Adityanath government’s counter affidavit

The following is a summary of the government’s defence of its decision in the counter affidavit:

The petitioners were “not diligent” in pursuing the case for years and have revived the case now only because of their political opposition to Adityanath

That there was not “a single effort at the end of [the] petitioner” to get the case decided

Parwaz has “criminal antecedents” with ten criminal cases against him

The petitioners chose “not to object [to] the continuation of the investigation by the CB-CID” for years but were now making “uncalled for and misconceived allegations”

As Adityanath became chief minister on March 19 only “thereafter [the] petitioners started pursuing the matter with full pace, which demonstrate[s] the intention of the petitioners”

The CB-CID is a “specialised” and independent investigative agency and therefore competent to run the investigation

The state government is not bound by law to sanction every CB-CID recommendation for prosecution

The local police had “already done the needful” in the various incidents of the expanding violence cited in Parwaz’s petition

Forensic experts had ruled as tampered a CD that Parwaz gave the police claiming it contained a recording of Adityanath’s controversial speech that allegedly triggered the violence; the “authenticity” of this forensic report cannot be challenged

The television programme in which Adityanath admitted to making the speech “is not admissible as evidence and hence, there was no justification for the investigative officer to probe the same”

The CB-CID’s investigation “did not reveal the aspect of conspiracy” as alleged in the FIR

The compact disc

The single most important of the above reasons, from the government’s point of view, is a compact disc (CD) that Parwaz had handed the court of the chief judicial magistrate (CJM) in April 2008. The CD, Parwaz had said, contained the video of Adityanath’s speech on the night of January 27, 2007, which allegedly triggered the violence.

The CB-CID had sent that CD to the Central Forensic Science Laboratory (CFSL) on August 14, 2014, more than six years after Parwaz had given it, and nearly a year and a half after the Supreme Court allowed the investigation to resume after dismissing the petition by Chaudhary, the co-accused. Two months later, on October 13, 2014, the CFSL sent a two-page “examination” report saying it had received a DVD (and not a CD) and the videos in it were “not original” but “edited and tampered” with.

Several aspects of this “examination” trigger a shadow of doubt. One, the “description of the parcel and the seal” in the report noted that when the forensic examiner opened the sealed parcel he found, besides the DVD, “one CITY FOCUS news paper (single page) of dated 5 June 2014”. How can that be possible if Parwaz had submitted his CD to the CJM’s court in April 2008?

Legal procedure dictates that court officials should have sealed the CD in a packet right at the time of submission. Only if that had not been done would it be possible for a 2014 newspaper to be found in the package at the CFSL laboratory. And if the packet sealed in the CJM’s court had been tampered with before reaching the forensic lab, then clearly the authenticity of the CD/DVD comes into question, as the petitioners have told the high court.

There is an even more glaring dissonance between the forensic report and the CD’s provenance. The CFSL report said it found two folders in the DVD, one of which contained a film named Saffron War. Saffron War is a documentary critical of Adityanath’s communal activities, made in 2011 by two Lucknow-based civil liberties activists, Rajeev Yadav and Shahnawaz Alam. How could that film be on a CD/DVD Parwaz submitted in 2008?

The CFSL report also claimed that it had received the DVD in a “cracked condition from the corner”. Parwaz has, however, denied that the CD he gave the CJM’s court was cracked. This, too, should be easy to verify, by the noting on the file in the CJM’s court when it received the material. It would be difficult to imagine that a court would accept a “cracked” CD from an applicant and not mention that fact in its receipt.

But the most significant aspect of the CD lies outside its examination. Since May 11, 2017, the state government has repeatedly told the high court that it refused sanction for Adityanath’s prosecution on the basis of the CD’s forensic report. But the CFSL sent that report in October 2014, whereas the CB-CID decided in April 2015 that it had enough evidence to prosecute Adityanath. Surely then, the CB-CID – a competent and independent agency, in the state’s own estimation – was confident that it had enough evidence to override the negative forensic report?

Before fact checking the rest of the assertions in the government’s counter affidavit, it might be helpful to recall the incident that triggered the violence as detailed in the FIR. None of the accused have ever challenged or denied the assertions in the FIR. Equally astounding is that neither the police nor the successive state governments have ever denied or disputed the claims in the FIR.

Moreover, the incident was as public as any can ever get, with front-page coverage in national newspapers and end-to-end primetime reporting on national news television. There’s little in the FIR – Adityanath’s role in the attacks, their locations and victims – that was not already widely reported. Indeed, the police itself would later tell the high court it had registered as many as 28 different FIRs in cases of communal violence in Gorakhpur district alone in 2007. Adityanath himself was arrested the day after the violence before getting bail 10 days later.

Yet, the CB-CID as well as the counter affidavit both put the onus on Parwaz, the petitioner, to prove the allegations in the FIR.

The January 2007 incident

The 16th-century warrior king Maharana Pratap is a favourite with the Hindu right-wing for his opposition to Mughal emperor Akbar. It was thus apt that Adityanath chose Maharana Pratap Chowk, a prominent thoroughfare across Gorakhpur railway station, to assemble a large crowd at 8 pm on Saturday, January 27, 2007. The mood was already belligerent as a Hindu trader’s son had been killed the day before and his death was being blamed on ‘Muslims’. Sectarian violence had reportedly been going on in the district since at least January 4.

Mulayam Singh Yadav of the Samajwadi Party was the chief minister at the time. The district administration clamped a curfew in parts of the city and also imposed Section 144 of the IPC, which prohibits “unlawful assembly”. But that hadn’t deterred Adityanath before and wasn’t going to now.

Defying such technicalities, and despite the heavy presence of the police at that location, Adityanath took to the microphone and began speaking urgently in Hindi to hundreds of his assembled supporters:

“For every Hindu they kill we will kill ten of theirs. If Hindu shops and homes are set on fire none can stop you from the doing the same to them. Anything can be done to defend the Hindu honour. Be prepared to fight by yourself.”

He continued,

“Because it is a Hindu who has been killed, a Hindu trader robbed, Hindu shops vandalised, the administration has not taken it seriously. All that has been happening in Gorakhpur since January 4 is state-sponsored terrorism. Only the people can bury this state-sponsored terrorism and you should come forward to do so. If we don’t act now for the welfare of the Hindus our future generations will never forgive us. Prepare for the final battle. If you stand up just once you will see that Gorakhpur will be peaceful for years to come.”

Calling it “useless” and a “eunuch”, Adityanath said if the administration failed to “avenge” the death of the Hindu trader’s son then “we will do it ourselves… We will take the law in our hands and demolish law and order here.” Then he directly set his sights on the Muslims. “We will not allow the tazia processions this time,” he said, referring to Muharram. “We will play holi with the tazias.”

He concluded by calling for a shutdown in Gorakhpur and adjoining districts. Shortly, the charged assembly turned into a mashaal juloos (torch procession) that Adityanath led through the city’s streets. The air was rent with anti-Muslim slogans such as “Katuey kaate jaaenge, Ram Ram chillayenge” (When Muslims will be slaughtered they will take the name of Lord Ram).

Before long, anger turned to violence. Mobs that, in many cases, comprised members of organisations founded by Adityanath, such as the Hindu Yuva Vahini (HYV), attacked and set on fire Muslim homes, shops, godowns, cars, bikes and carts, including in the Muslim neighbourhood of the Gorakhnath Temple that seats the Hindu sect that Adityanath heads. Mosques and madrasas, too, were attacked.

The above rendition of the events of that day and afterwards is from the FIR. As noted earlier, successive governments, the police, the district administration and even the prime accused have never denied or disputed them. Copious news reportage has also not contradicted this version but supported it. Yet, to this day, no inquiry report, no investigation into the likelihood of a conspiracy behind the extended violence has emerged from any official quarter.

The quest for an FIR

On January 28, 2007, the morning after Adityanath’s meeting and subsequent violence, Parwaz wrote his first letter to the district police asking them to act against Adityanath and several others present at the rally. Saying that he was passing by the rally and therefore witnessed it, Parwaz wrote an extensive account of what he saw, which included the scenes described above. The police ignored his letter. That very day, the police arrested Adityanath, news reports from the time say, to stop him from visiting the city’s violence-affected areas.

On February 7, a local court let Adityanath out on bail. The next day, Parwaz wrote a second letter to the police, recounting the incidents of violence since January 27 on the basis of newspaper reports. He wrote that at least one Muslim had been murdered; an imam of a village mosque had been doused with petrol and set on fire in an attempt to kill him; tazias too had been set afire at many places; mosques attacked and vandalised; holy books burnt.

Parwaz wrote that Adityanath in his speech openly threatened violence not just against Muslims but also against the administration, a threat his followers quickly carried out as evident from the attacks on railway property, including trains, and government vehicles, including buses. HYV members also reportedly stormed the office of the district magistrate, the city’s top official, and set it on fire after vandalising it. “The district administration is well aware of all these incidents as they are widely reported in the news,” Parwaz wrote in his letter. “All the violence has resulted from Adityanath’s speech and involved his organisation. Hence, please take appropriate steps under the law.” Parwaz also sought time to meet the police to hand over a CD of the speech.

The police ignored this letter, too. Through the months of May, June and July, Parwaz sent the police at least four more letters asking them to take legal action against Adityanath. All the letters met with silence. In the meantime, Mulayam’s government was ousted in the assembly elections of April 2007, bringing in Mayawati as the state’s chief minister.

Finding the police unreceptive, Parwaz moved the Allahabad high court asking for its intervention to get an FIR registered. On October 24, 2007, the high court ruled in his favour, telling him to move the magistrate’s court in Gorakhpur under the Criminal Procedure Code (CrPC). Under Section 153(3) of the CrPC, a magistrate has the power to order a complainant’s FIR to be registered.

The police respond

Thus armed with the high court’s directive, Parwaz moved an application under this section before the CJM in Gorakhpur on November 21, 2007. Now the police had no option but to respond. The first-ever police report, written in Hindi, filed on November 27, 2007, before the CJM’s court, said: “The allegations [by Parwaz] are baseless. Yogi Adityanath is a respected personality, a Member of Parliament, and a renowned person in Gorakhpur.”

The report said the “episode” – Adityanath’s speech and the violence – had “become old” and there was “no justification” to register another FIR now, as the police had registered several FIRs after the violence. “The police had acted at the time of the violence. A curfew was imposed. Adityanath was arrested too. To register an FIR now would be like gade murde ukhadna (opening old wounds).” It further said “goonda and gangster action” against HYV members was initiated, and that the allegation that anti-Muslim slogans were raised was untrue.

The report said “no untoward incident happened during the torch procession”. It further said that even though Parwaz had written to the chief minster – who was now Mayawati – the fact that this highest authority hadn’t acted on his plea proved Parwaz was not speaking the truth. “The truth,” the report said, “is that due to political motivation the applicant is exaggerating the entire incident and trying to pin the blame on just one person. This blame has no basis in truth.”

The report did not detail why Adityanath was arrested or state if any FIR was lodged against him for inciting and causing violence, as Parwaz’s application alleged. It also did not explain how the police considered an incident that had occurred barely 10 months ago as “too old”, what “goonda and gangster action” meant, or how it knew the mobs did not raise anti-Muslim slogans. The report also did not mention that curfew was already in place when Adityanath flouted it.

If anything, the police letter said it was the complainant, Parwaz, who was suspect:

“The complainant is a controversial political person and his allegations are based in political enmity. He has been indulging in Muslim communal politics. The allegations are motivated.”

The report said Parwaz’s application should be seen as a conspiracy to malign an opposition politician. It also claimed that “during the events in Gorakhpur the applicant [Parwaz] was reportedly arrested, hence his version cannot be believed”. This last claim – which the police was careful enough to caveat (‘reportedly’ arrested) – was, of course, not true. Parwaz was not arrested in that period. Surely the police – at least – ought to have known who was arrested?

But two claims in the police report were more startling than the others. One, it said the violence had occurred in response to the killing of a Hindu, the trader’s son named Rajkumar Agrahari, perhaps implying that the violence was retaliatory. And two, that registering an FIR would “affect law and order”. Yet again, the report did not explain what this last assertion meant.

Regardless of the one-sided nature of the police report, it still did not amount to a legal argument against Parwaz’s application. In response to the police report, Parwaz shot back a simple question: Would the police please tell the court whether or not they had filed an FIR with regard to the event at Maharana Pratap Chowk, the mashaal juloos, and the conspiracy?

The case was repeatedly adjourned for four more months. The CJM then asked for another police report. This second police report, filed on April 16, 2008, made a U-turn. Whereas the first report claimed there was no ground to register an FIR against Adityanath, and that the allegations against him were politically motivated, the second report said the police had already registered an FIR in the matter and that it would be illegal to register a second FIR over it.

But this newly discovered FIR had little in common with Parwaz’s complaint. That FIR had been registered by a Muslim named Hazrat over an attack by unknown persons at a shop where he worked near the Gorakhpur railway station, around 6 pm on January 27, 2007, before the incidents that Parwaz had alluded to in his application had occurred. That FIR did not mention Adityanath’s speech; the mashaal juloos; the widespread violence, including the attacks on mosques, homes, shops and vehicles; the deaths; and the likelihood of a conspiracy.

On April 28, 2008, Parwaz wrote back challenging the police’s second report. With this letter he also submitted a CD he said contained the video of Adityanath’s speech. But three months later, the CJM accepted the police’s contention and rejected Parwaz’s application to register an FIR.

High court finally orders police to register FIR

Thus turned down, Parwaz moved the Allahabad high court a second time. He argued that his allegations against Adityanath and the incidents he referred to were fundamentally different from the ones in the other FIR. He also argued that the magistrate did not have the discretion to decide whether or not two FIRs can be filed for the same offence. The law, said Parwaz, was clear that if a complaint contained cognisable offences then an FIR must be registered.

Surprisingly, the Mayawati government chose to defend the magistrate’s order, arguing that there was no need to register an FIR against Adityanath. It took the high court only two months to rule in Parwaz’s favour. Saying that “certain allegations” in Parwaz’s complaint were “worth mentioning”, the judge quoted from it extensively to retell the events. “The [CJM] was not right in declining to get the FIR registered in [the] present case,” wrote Justice V.K. Verma. “From all these allegations, prima facie cognisable offences of [a] very serious nature requiring police investigation are disclosed.”

“[T]he learned CJM ought to have passed the order in [the] present case for [the] registration of [the] F.I.R. against the persons named in the application… and [ordered] its investigation by the police, but it is very unfortunate that due to [a] lack of adequate legal knowledge… the learned CJM has rejected the application,” Justice Verma wrote in his order. “[T]he impugned order passed by the chief judicial magistrate Gorakhpur, being wholly illegal, is liable to be set aside.” Justice Verma was so upset that he ordered the high court’s registrar-general to send his judgment to the CJM “for his future guidance and improving legal knowledge”.

Though Justice Verma passed his order on September 30, 2008, it would be another month before Parwaz’s complaint was finally registered as an FIR on November 2. This marked a delay of 21 months from the day the violence began. Unsurprisingly, nobody in the local police wanted to touch the investigation. So, within a day of registering the FIR, its investigation was transferred to the CB-CID. This brought Parwaz right back to the high court for a third time. This time, another social activist, Asad Hayat, joined him as co-petitioner.

Quest for independent investigation

“The police authorities [have been] totally inefficient in performing their constitutional duty from the day the incident occurred till [the] lodging of the FIR,” the writ petition by Parwaz and Hayat, filed on November 28, 2008, said. Despite the petitioners’ “best efforts”, the police “miserably not only failed to lodge the FIR but tried their level best to shield the offenders.”

The petition detailed the mayhem that rocked as many as six districts, including and surrounding Gorakhpur, following Adityanath’s speech on January 27, 2007. It gave details of 21 FIRs registered by the police across the region in the wake of the violence, adding: “Several other cases were also lodged, details of which can very well be asked from state authorities.”

The petition referred to a signed statement submitted by the senior superintendent of police – no less – of Gorakhpur in another case before the high court, that admitted a total of 29 FIRs in communal violence cases from the year 2007. In 20 of these, charge-sheets had been filed. In six, the police had closed investigation with a “Final Report” (FR), which is police-speak for not sending the case for prosecution. And in two, permission for prosecution had been sought from the state government. In one FIR – Parwaz’s – the CB-CID was investigating.

Also read: How the SP and BSP Helped Adityanath Get Away With His Hate Speeches

“[I]t is clearly established that the above referred incident[s] had occurred because of a particular design of conspirators and hence [the] aspect of conspiracy ought to have been investigated by the police from [the] very beginning but they failed to do [so] for the apparent reason that they do not want to touch certain high profile persons who were actually controlling [the] strings while sitting at the top or with whom the police authorities are hand in glove,” the petition said. It added that while Parwaz’s FIR had clearly mentioned the likelihood of a conspiracy behind the violence, and asked for the accused to be charged under Section 120(b) of the IPC, which relates to conspiracy, the police had refused to investigate the crime for it.

But why distrust the CB-CID, which claims to be independent of the regular police? To answer this, the petition by Parwaz and Hayat referred to another FIR from 1999 against Adityanath that was registered after gunfire from a procession he was leading had killed a policeman deputed as a bodyguard to a rival politician. Despite eyewitnesses, the CB-CID later decided that no offence was made against Adityanath. Parwaz’s petition said the “conduct” of the CB-CID “clearly indicates” that it was a “spineless body which succumbs under tremendous pressure”.

Samajwadi government soft-pedals matter

An appeal to the Supreme Court against the FIR by Chaudhary, co-accused in the case, caused a four-year delay in the CB-CID’s investigation. But even after the apex court dismissed Chaudhary’s petition in December 2013, the investigation did not pick up speed. Then, in August 2014, in conversation with well-known news anchor Rajat Sharma, Adityanath stunningly admitted to having made the controversial speech of January 2007.

Immediately, Hayat, Parwaz’s co-petitioner in the case before the high court, wrote to the principal secretary in the UP home ministry as well as to the director-general of the CB-CID asking them to treat Adityanath’s television statement as an “extrajudicial confession” and arrest him. Of course, neither acknowledged the letter. It would be another 10 months before the CB-CID would make its first statement regarding its investigation. This would come in the form of an “Affidavit of Compliance” filed before the high court on April 24, 2015.

In it, the CB-CID said it had recorded a statement from Parwaz, “who has fully supported the prosecution story,” as well as some others who also “supported the prosecution version”. The affidavit was silent on whether any statements had been taken from the accused. It, however, also said that “on the basis of the statements of the witnesses and the cogent, ample and sufficient evidences (sic), the investigating officer has prepared a Draft Final Report” (DFR) and sent [it on April 9, 2015]… to its higher official for its approval and the same is still awaited”. A DFR is not to be confused with FR, or final report. It is, in fact, the exact opposite. Whereas an FR rules against prosecution, a DFR indicates there is sufficient ground for prosecution.

This was a sensational piece of information. It meant that not only had the CB-CID completed its investigation, it had also found sufficient evidence to prosecute Adityanath. But then, little was heard again from the CB-CID for the over 18 months. On December 6, 2016, the high court bench hearing the Parwaz-Hayat petition demanded an update on the “state of the investigation,” which prompted the CB-CID to file another “Affidavit of Compliance”.

This affidavit, presented to the high court on December 17, 2016, reiterated that the investigating officer had prepared a DFR and on May 28, 2015, had submitted it to the state government “for its approval as well as prosecution sanction”. It further said that the state government had approved the DFR and forwarded it to the government’s appropriate legal authority to take up the issue of sanctioning the prosecution. Subsequently, that legal authority – the government’s principal secretary (law) – had called the investigating officer for a meeting “to place facts of the case” before a committee set up to take the final decision. The CB-CID’s investigating officer had appeared before this committee on August 28, 2016 and “place[d] his version regarding [the] criminal case in question… The prosecution sanction by the State Government is still awaited.”

But then, if the committee had heard the investigating officer in August, why hadn’t it still taken a decision on sanctioning prosecution, one way or the other, three-and-a-half months later? It would be another one-and-a-half month before the high court would ask the government to inform it if it had granted sanction to prosecute Adityanath. While nothing was heard from the government on this, the CB-CID filed yet another “Affidavit of Compliance” – its third – before the high court on February 20, 2017. It said that the CB-CID had written yet again to the state government requesting its sanction for the prosecution and that the government’s reply was awaited.

By now, over five months had passed since the IO had met the committee, but no decision had been taken. This was also during the fag end the Akhilesh government. Assembly elections were already under way. Just 19 days later, on March 11, the BJP won a landslide in the state and on March 19, Adityanath became chief minister.

The state government had still not taken a decision on prosecuting Adityanath.

The high court speaks, again

On April 17 this year, the petitioners went back to the high court and sought its intervention. Hayat, the co-petitioner, complained that the CB-CID had not recorded his statement in all these years although he had repeatedly written to the agency as well as higher-ups that he had information about the conspiracy that he would like to officially share with them.

When the matter came up for hearing on May 4, the government’s lawyer, Vimlendu Tripathi, “had some doubts” on whether the DFR had been approved or not by the government. This did not go down well with the high court bench. After all, hadn’t the CB-CID’s “Affidavit of Compliance” submitted in December clearly said that the DFR had been approved?

The court ordered that the state’s chief secretary – its top bureaucrat – himself appear before the bench at the next hearing “along with [the] entire record of the present case including the report of the investigation” conducted by the CB-CID and “the DFR prepared by it”. The chief secretary should “further file his personal affidavit clarifying the said facts so that the matter may be disposed off at the earliest as the alleged incident has taken place in the year 2007 and the petition is pending since 2008”, the court wrote in an order.

Indeed, the court’s mood that day clearly reflected the fact that the state government had tested its patience. “The matter is serious in nature” as 29 criminal cases including the present case were registered, the order said, adding that “it is a little bit disturbing” that the government’s lawyer, Tripathi, had raised issues that hadn’t been raised at the earlier hearings.

“This further raises a question that how serious [are] the state and its agencies in pursuing the matter which is of grave concern in which innocent persons have lost their lives, many were injured and properties of innocent persons were set ablaze in the communal riots. [The victims’] families are waiting for justice at the doors of the court and almost nine years have elapsed and the matter is struggling on such technical issues,” the order said.



The moment of reckoning would arrive at the next hearing, on May 11.

Discrepancies galore

It must qualify as no small irony that while Adityanath managed to keep publicity for the case under the radar in the years it dragged through the high court, his government’s very first step in this case instantly made headlines, bringing wide attention to the long-forgotten case. This happened because when chief secretary Rahul Bhatnagar appeared in person at the high court on May 11, he submitted his own “Affidavit of Compliance” that made a rather stunning revelation: the government had refused the sanction to prosecute Adityanth.

Bhatnagar’s affidavit provided a chronology that varies from the “Affidavit of Compliance” the CB-CID had submitted in December. Bhatnagar said that the CB-CID had completed its investigation by April 10, 2015, and sent the DFR to “superior officers,” who approved it on April 22, 2015. Then the CB-CID sent “the matter” to the home department on July 10, 2015, seeking sanction for prosecution. (But the CB-CID’s first affidavit of April 24, 2015, had claimed that the approval for the DFR was still awaited. Its second affidavit of December 2016 had claimed that it had prepared the DFR on May 28, 2015, and sent it up for approval.)

That letter from the CB-CID, Bhatnagar’s affidavit said, reached its addressee in the home department on July 20, 2015. Then, quite inexplicably, the home department sat on it for a year, before forwarding it to the law department on July 11, 2016. That very day, the special secretary at the law department wrote back saying the investigating officer in the case should be asked to meet him along with the “case diary”. That meeting with the investigating officer, Bhatnagar said, occurred on July 27, 2016. But the investigating officer had not brought along the case diary that day so he asked for a week’s time to return.

Also read: How Yogi Adityanath Made it to Where He Is

The law department sent another letter six days later asking the investigating officer to appear on August 8. While Bhatnagar’s affidavit says the investigating officer “did appear and the matter was discussed”, it doesn’t say when that second meeting took place. On its part, the CB-CID’s affidavit of December had not disclosed any meeting between the investigating officer and the law department on July 27 as Bhatnagar claimed. The CB-CID’s affidavit had only said that the investigating officer had met with officials on August 28, when the investigating officer presented his case, and that sanction for prosecuting Adityanath was awaited.

From this point, Bhatnagar’s affidavit produces an entire new chain of events. It said that after the IO’s meeting with officials, the law department found the record submitted was not complete as it did not have the report from the CBI’s CFSL regarding the CD that the “complainant [Parwaz] had given to the IO in support of evidence”. So a letter was sent to the CB-CID on October 18 asking for that forensic report. When they didn’t hear back from the CB-CID, they sent a reminder letter on December 21.

The CB-CID wrote back on January 3 this year saying it hadn’t received the October letter, upon which it was re-sent to the agency on March 8. In response to that, the CB-CID sent the government the forensic report on March 24 – five days after Adityanath became chief minister. All this back-and-forth was, of course, being done between the CB-CID and the home department, which is the nodal department for law and order. The home department would take another month to forward the forensic report to the law department on April 26.

On the basis of the forensic report, which is detailed below, the law department opined that sanction for prosecuting Adityanath should not be granted. The home department concurred with that counsel on May 1. A formal order rejecting sanction was passed on May 3 and sent to the CB-CID. The CB-CID then closed the matter on May 6, informing the government on May 9.

It is perplexing that the CB-CID’s third affidavit of February 20 does not mention the forensic report’s absence from the record, of receiving a reminder from the home department, of writing back saying it hadn’t received any letter in December. If anything, that affidavit says the agency wrote to the government on January 3 – the day Bhatnagar says the CB-CID wrote back saying it hadn’t received the letter – asking again for sanction to prosecute Adityanath.

After Bhatnagar’s affidavit was filed, the judges once again turned their ire on Tripathi, the government lawyer. “It is painful and disturbing” that while the government had passed the order refusing sanction on May 3, Tripathi did not share that information with the court at the previous hearing on May 4, the judges wrote in their order. They ordered that the case next be heard on July 7 for “consideration of prayer for transfer of investigation of the present case to CBI and also examining the validity of the refusal of grant of prosecution sanction.”

The judges also directed the chief secretary to “file status of all those [29 criminal cases of communal violence from 2007] till date through a detailed comparative chart”. The judges also ordered the lower courts to not accept the CB-CID’s closure report. On July 7, the various parties to the dispute – original petitioners Parwaz and Hayat, the state government through the chief secretary, and the CB-CID – filed affidavits restating their positions.

Fact-checking the counter affidavit

This article began with a summary of the key points made in the Adityanath government’s July 7, 2017, counter affidavit. Now is the time to fact check them.

The counter affidavit’s claim that the petitioners were “not diligent” in pursuing the case for years and that there was not “a single effort at the end of [the] petitioner” to get the case decided is patently false. As is the claim that the petitioners chose “not to object [to] the continuation of the investigation by the CB-CID” for years – what is the writ petition if not that very objection?

The counter affidavit also says that the petitioners started “pursuing the matter with full pace” only after Adityanath became chief minister. This too comes up as wholly untrue. Its claim about the CB-CID being an independent agency is, ironically, belied by that agency’s meek acceptance of the government’s refusal to sanction prosecution. If the CB-CID was truly independent and professional, wouldn’t it have disagreed with the home department’s May 3 order refusing sanction and cited the evidence at its command to ask for reconsideration?

The counter affidavit also says that the CB-CID’s investigation “did not reveal the aspect of conspiracy” as alleged in the FIR. But that is exactly what the petitioners are saying since they moved the high court for a change of investigative agency – that the CB-CID has not investigated the crimes for conspiracy, which suggests the agency is being insincere.

The next hearing in the case is tomorrow, July 27.

Ajit Sahi is an independent journalist.