New Delhi: In what may snowball into a big political controversy, the BJP-led Uttar Pradesh government has denied the state Crime Investigation Department (CID) sanction to initiate prosecution against five accused BJP leaders, including chief minister Adityanath, in a case related to the 2007 Gorakhpur communal riots.

The chief secretary of the state, Rahul Bhatnagar, while appearing in front of an Allahabad high court bench, made the government decision public on Thursday, May 11. The two-judge bench comprising Ramesh Sinha and Umesh Chandra Srivastava was hearing a 2008 writ petition filed by Gorakhpur-based journalist Parvez Parwaz and Allahabad-based activist Asad Hayat against the BJP leaders for inciting anti-Muslim mobs during the riots.

The Wire had earlier reported that the high court in its last two hearings had pulled up the state government for delaying the case on technical grounds. On April 28, the court had asked how Adityanath, the prime accused in the case, could preside over the decision to grant sanction for prosecution.

On May 4, the court came down heavily on the government counsel, who the court noted was being inconsistent in his versions. The bench also asked why the state government had not sanctioned the CID to initiate prosecution against the accused despite the investigative agency submitting the “Draft Final Report (DFR)” on the case to a three-member committee of the state government as early as April 2015.

The DFR, the court noted on the basis of the CID’s own deposition, had already been approved, yet a sanction from the principal secretary (law) to prosecute the accused persons had not been given by the state government. The CID, in order to start prosecution, technically requires the sanction of the state government according to section 153-A of the Indian Penal Code. However, the former Samajwadi Party government sat on the DFR for over two years, thus creating a situation in which Adityanath got control over whether to initiate prosecution against himself or not.

Video evidence

Taking cognisance of these developments in the case, the court had ordered the chief secretary of the state to appear before it on May 11 and present his explanation.

As the chief secretary appeared today (May 11) and filed an affidavit to declare that sanction to prosecute has been denied to the CID, he said that the DFR lacked sufficient evidence to prosecute the accused persons.

Sources in the Uttar Pradesh government told The Wire on condition of anonymity that the sanction was denied to the CID as the government found that the Delhi forensic laboratory which examined Adityanath’s hate speech could not provide conclusive evidence against him.

“This report was missing in the DFR submitted by the CID. However, the new government found the report and on that basis denied prosecution against the accused persons. The DFR, therefore, was treated to be incomplete,” a high court official told The Wire.

He also said that the government counsel pleaded to dismiss the writ petition, which the court denied. “The counsel argued that if petitioners had a problem, they should appeal at the magisterial court in Gorakhpur,” the official said.

The government’s change in position regarding the case is conspicuous as the CID’s investigative officer Chandra Bhushan Upadhyaya has already told the media that he had filed a chargesheet in the case in 2015 and the DFR, which seeks prosecution of the accused persons, has been submitted to the government.

As prosecution against Adityanath and four others stands denied at present, the petitioner’s counsel Syed Farman Naqvi raised some pertinent questions.

“The chief secretary in his affidavit has declared that the prosecution was denied by the state’s home department on May 3, 2017. This means the decision was taken after the court expressed its doubts over the state government’s judiciousness in taking the decision on April 28 and before the court criticised state inaction on May 4, 2017. It is noteworthy that the government’s counsel did not inform the court about the denial of sanction on May 4,” Naqvi told The Wire.

From what it appears, the government is trying to manipulate the case. “If the decision was taken on May 3, the government counsel should have known about that. There is definitely something fishy about how the state government has rushed through the case proceedings,” he added.

However, he expressed confidence in the judicial process. Naqvi said that the bench rightly questioned the government counsel on all these troubling aspects. “The bench said even if the order was not available with the counsel on May 4, he could have informed the court about such a decision taken by the state government. The counsel could not answer any of the bench’s questions,” he said.

Naqvi has been granted time to “amend his prayer challenging the government order” by the court.

The petitioners had also moved an application to the 2008 writ petition highlighting as evidence Adityanath’s statements in a 2014 television show ‘Aap Ki Adalat‘, in which he had not only owned up to his hate speech – the one the UP government now claims there is no “conclusive” forensic evidence for – but also justified it as the right thing to do. The court has also asked the government’s counsel why the television interview could not be treated as evidence, Naqvi said.

He added that the forensic report on Adityanath’s speech was inconclusive because the laboratory did not bother to record his voice in person but instead relied on recorded online videos to confirm his voice in the contentious speech. “No one had stopped the CID from recording Adityanath’s voice. But they did not do so. However, since the CID had already filed a chargesheet, it should be assumed that the agency had enough evidence,” Naqvi said.

The denial of prosecution has raised several eyebrows and is likely to set off alarm bells in political circles. Is Adityanath, now the chief minister, trying to protect himself and other riot-accused persons by influencing the bureaucracy? Is there not a definite conflict of interest, a point the court also noted? Does the promise of an improved law and order situation in UP not apply to BJP and other saffron groups? Questions like these are bound to be raised in future as the government order denying sanction to CID is most likely to be viewed as one of the most brazen attempts by a state government to circumvent the law.