Does Supreme Court Grant Bail To Every Murder Accused After One Year Custody? Dushyant Dave Asks In Lakhimpur Kheri Case

Will the Supreme Court lay down a general principle that every accused facing murder charges will be released after one year custody? Senior Advocate Dushyant Dave asked this question when the Court contemplated whether it should grant bail to Ashish Mishra, son of Union Minister Ajay Mishra, in the Lakhimpur Kheri case, considering the fact that he has undergone custody for over a year.

"If your lordship can lay down a general principle that in all 302 cases accused will be released after one year, then I bow down. But do not make an exception in this case", Dave submitted before a bench comprising Justices Surya Kant and Krishna Murari. He contended that ordinarily, the Supreme Court will not interfere if bail has been concurrently refused by the trial court and the High Court in a serious crime like murder.

The senior lawyer is representing the relatives of the victims of the Lakhimpur Kheri crime of October 2021 in which five persons were killed after vehicles of Mishra's convoy allegedly ran over a group of farmers protesting against the farm laws. 

Dave argued that Ashish Mishra's father Union Minister Ajay Mishra had made previous statements threatening the protesting farmers and the crime was "premeditated". The petitioner went to the protest venue despite the route being changed. "What was the need for this boy to take that route with his friends while driving at a speed of more than 100 kilometers?", he asked.  He urged the bench to not ignore the gravity of the crime, which took place in broad daylight.

"It is a very grave incident which shocked the entire nation. If someone can be killed merely because they are agitating, then nobody is safe in a democracy", Dave submitted. He also pointed out that two witnesses have already been attacked. When the bench pointed out that it has passed orders for the protection of witnesses, Dave said, "these are powerful people".

The senior counsel highlighted that Mishra was arrested only because of the intervention made by the Supreme Court, and until then, the State was supporting him. The Additional Advocate General of Uttar Pradesh, Garima Prashad, took objection to this statement made by Dave, and said "it is very unfair".

Senior Advocate Mukul Rohatgi, appearing for Mishra, put forth a plea of alibi by arguing that he was at a different location when the crime took place. He claimed that Mishra was attending a wrestling function about four kilometers away and that there are photographs and mobile tower location records substantiating this. Rohatgi submitted that another person was sitting at the passenger seat of the Thar vehicle involved in the incident.

Dave refuted these arguments by saying that the plea of alibi is based on doctored evidence. He said that there are statements of witnesses regarding Mishra's presence at the venue.

However, the bench said that it is not going to enter that factual controversy at the present stage as it is only concerned with the question of bail.

"In cases of bail, we consider the seriousness of the crime, the period which the trial will take and also the period spent by the accused. How long should he be in prison?Can he be kept indefinitely? How to balance? The accused has also rights as the victims", the bench observed.

"We are broadly on one point. Under the monitoring of this Court, we have reached the stage of charges. The eyewitnesses have also been granted protection. 200 eyewitnesses have also to be examined. Now we are struck at a stage where the trial is about to commence and all witnesses have to be examined but the court cannot be asked to leave other cases and take up only this one case."", Justice Kant said.

The bench directed the Registrar (Judicial) to find out from the first Additional Sessions judge at Lakhimpur Kheri as to how much time the trial is likely to take to conclude in the normal case without compromising with other pending or prioritised matters. The State has also been directed to inform the bench about the status of investigation in the counter-case relating to the lynching of three persons, including the driver of Mishra's car, in the incident.

The matter will be next heard in January.

Initially, the Allahabad High Court had granted bail to Mishra on February 10, but it was set aside by the Supreme Court bench comprising the then CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli in April 2022 after noting that the High Court took into account irrelevant considerations and ignored relevant factors. The bail application was then remanded to the High Court. The Supreme Court's order came in appeal filed by the relatives of the farmers who got killed in the crime.