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IN THE HIGH COURT OF ALLAHABAD
DINESH KUMAR SINGH, J.
Parvez Parwaz And Another – Appellants
Versus
State of U.P. and Another – Respondents
Application U/S 482 No.4227 of 2023
Decided on : 22-02-2023
Constitution of India, 1949 – Article 226 – Indian Penal Code, 1860 – Sections 153, 153-A, 153-B, 295, 295-B, 147, 148, 395, 436, 435, 302, 427 and 452 – Criminal Procedure Code, 1973 – Section 403, 482, 196, 161 – Parliamentary Constituency – Sanction for Prosecution – Power of High Court to issue certain writs – Malicious Prosecution – Learned trial Court has rejected protest petition filed by petitioner by holding that sanction for prosecuting accused was already refused order was challenged by petitioner complainant Supreme Court Supreme Court had dismissed appeal – Held, Court resources to fight contest litigation should be a matter of investigation – Learned Additional Advocate General that petitioner is an impostor who has been set up by forces which are opposing present Chief Minister of State of Uttar Pradesh forces which do not want progress of State of Uttar Pradesh and India – State to investigate said aspect – Court does not want to say anything further or give any direction in this regard – Petition stands dismissed.
JUDGMENT :
1. The present petition under Section 482 CrPC has been filed, impugning the order dated 11.10.2022 passed by the Additional District & Sessions Judge (Rape and POCSO)-3, Gorakhpur in Final Report No.1230 of 2017 (Parvez Parwaz Vs. Yogi Adityanath and others), arising out of Case Crime No.2776 of 2008, under Sections 153, 153-A, 153-B, 295, 295-B, 147, 148, 395, 436, 435, 302, 427 and 452 IPC read with Section 7 Criminal Law Amendment lodged at Police Station Cantt., District Gorakhpur.
2. The learned trial Court has rejected the protest petition filed by the petitioner by holding that as the sanction for prosecuting the accused was already refused under Section 196 CrPC and the said order was challenged by the petitioner/complainant up-to the Supreme Court and the Supreme Court had dismissed the appeal, therefore, the protest petition could not be accepted and the trial Court could not interfere with the order, refusing the sanction for prosecution of the alleged accused. There is a checkered history of litigation and a brief survey is required to be mentioned. The petitioner had initially approached this Court by filing Criminal Writ Petition No.16095 of 2007. The Division Bench of this Court by means of order dated 24.10.2007 dismissed the writ petition by observing that the the petitioner, if so advised, may file an application under Section 156(3) CrPC for a direction to lodge the FIR against Sri Yogi Adityanath and others. The petitioner, thereafter, filed an application under Section 156(3) CrPC for lodging of the FIR against the accused under Sections under Sections 120-B, 153-A, 153-B, 295-A, 295-B, 143, 147, 435, 436, 452, 427, 395, 302 and 307 IPC and 3/4 Prevention of Damage to Public Property Act and Railways Act.
3. The said application was rejected by the learned Chief Judicial Magistrate vide order dated 29.07.2008. The petitioner, thereafter, filed Criminal Revision No.2346 of 2008 before this Court. This Court vide order dated 26.09.2008 set-aside the order dated 29.07.2008 passed by the learned Chief Judicial Magistrate, Gorakhpur and remitted back the matter to the learned Chief Judicial Magistrate to pass a fresh order in accordance with law. It was also directed that after registration of the FIR, on the basis of the application filed by the petitioner under Section 156(3) CrPC, proper investigation should be ensured.
4. On remand, the FIR was registered on 02.11.2008 at Police Station Cantt., District Gorakhpur against five accused persons, including Sri Yogi Adityanath, the then Member of Parliament from Gorakhpur Parliamentary Constituency.
5. The accused approached the Supreme Court by filing Criminal Appeal No. 2039 of 2012 against the order dated 26.09.2008 passed by this Court in Criminal Revision No. 2346 of 2008. The Supreme Court vide order dated 13.12.2012 dismissed the said appeal.
6. The petitioner, perceived that the investigation was not being properly conducted by the investigating agency in the FIR, therefore, approached this Court by filing Criminal Misc. Writ Petition No.21733 of 2008 for following prayers:-
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 i.e. 120-B, 121, 121A, 122 IPC 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
Errors in sanction for prosecution can be raised during trial, and further investigation is permissible under Section 173(8) of Cr.P.C.
The accused do not possess the right to request further investigation under Section 173(8) of the Cr.P.C., as this power is reserved for the investigating agency and the court, ensuring that the inve....
The protection under Section 197 Cr.P.C. is not available to public servants who commit offenses that are not connected with the discharge of their official duties or who act in excess of their autho....
The Magistrate has the power to direct further investigation under Section 173(8) of the CrPC, and such powers can be exercised suo moto as well.
Sanction for prosecution of public servants must reflect independent assessment; repeated refusals by the authority, absent new evidence, undermine legitimacy of prosecution.
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