(Delivered by Hon'ble Krishna Murari, J.)

1. The petitioners herein invoking Article 226 of the Constitution of India have filed the instant petition seeking following reliefs:

"(i) issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to investigate case crime no. 2776 of 2008 (Annexure No. 1) 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 (Annexure No.(9).

(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.

(v) issue a writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(vi) award the cost of the petition in favour of the petitioners."

2. The aforesaid reliefs were being claimed in the petition as it was originally presented in the background of the following facts :

Factual Matrix

3. Parvez Parwaz, petitioner no. 1 herein claiming himself to be a social activist made an application dt. 16.11.2007under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Gorakhpur alleging that one Mahant Yogi Adityanath, Member of Parliament and leader of an organization called 'Hindu Yuva Vahini' had been spreading hatred among Hindu and Muslim. It was further pleaded that on 27.1.2007 when he was returning home from the railway station Gorakhpur at about 8 p.m., the said member of Parliament along with Dr. Radha Mohan Das Agrawal, Member of Legislative Assembly, Dr. Y.D. Singh, Member of Legislative Council, Anju Chowdhary, Mayor of Gorakhpur, Shiv Pratap Shukla, Minister of State and B.J.P. leader and other office bearers and thousand of activists of 'Hindu Yuva Vahini', Bharatiya Janata Party and Vayapar Mandal Gorakhpur as well as various others whom he did not know by name but can recognise were holding meeting, called as 'warning meeting'. The meeting was being addressed by Yogi Adityanath who was saying that if blood of one Hindu is shed then they will not register any F.I.R. with the administration instead they will get 10 muslim killed. If damage is done to shops and properties of Hindus they would indulge in similar activities towards the muslim. Anything can be done to save the glory of Hindu and all should prepare for a fight. He tried to lodge an FIR but the police did not register the same.

4. The application was registered as Misc. Case No. 900 of 2007 (Parvez Parwaz vs. Yogi Aditya Nath and others). Vide order dated 29.7.2008 the Chief Judicial Magistrate rejected the application on the ground that another first information report regarding the same incident was lodged by one Hazrat son of Bismillah at P.S. Cantt., which was registered as case crime no. 145 of 2007 under Section 147, 436, 427, 506 I.P.C. read with Section 7 of the Criminal Law Amendment Act and Section 2/3 of Uttar Pradesh Gangster and Anti Social Activities Prevention Act, wherein after investigation charge-sheet had been submitted and thus there was no justification to lodge a fresh F.I.R. in respect of the same inc