"There Should Be Consistent Law On Bail, Delhi Riots Accused Are Still In Jail, 13,000 Undertrial Prisoners In Murder Cases In Up": Dushyant Dave In Ashish Mishra Case

Mr. Rohatgi: "The Complainant in FIR 219 (against Mishra) is one Jagjeet Singh who is not an eye witness. He has only hearsay. I am surprised that when a large number of people were there who are saying he ran over with his car, why would you have an FIR by one who is not an eye-witness. The Deputy CM of UP on a particular day was to come to a place and go to watch a 'dangal', he was to land by helicopter at a place where the farmers' protest was going on. They were collecting on that road where he would land. It is the case of this complainant that 3-4 cars came and in 1 car my client, son of Union state minister, was sitting with five people and the cars were moving mercilessly through the crowd and killed some people and that is why he is guilty of murder.The record shows that they are talking of a Mahindra Thar which carried 5 people. One of them, Jaiswal, has lodged the cross-FIR. He says that we came and these people were throwing 'lathis', they were kicking the doors, they pulled out the driver and Injured him, they pulled out and killed another. Jaiswal said I was the eye-witness and I ran away. He says I ran for my life and kept running till I collapsed. There are photographs on record, an SIT was appointed"

Justice Suryakant: "There is a dispute with regard to the germinus of the photos. It would not be correct to refer to them. That would be a subject matter of trial"

Mr. Rohatgi: "Jaiswal is in the photo. How is it doubted that he is incorrect? Whose version is correct- that hearsay or one who was there in car and an eye witness? In the first FIR, he admits that it is hearsay, that he got a call from his nephew"

Mr. Rohatgi: "There are CDR also. Ignore photos. Call records don't lie. The incident happened at 3 PM. My client was 4 km away, he had to go to the dangal site. It is not a case of premeditated murder. The crowd was unruly and attacked. Both our people and some farmers were killed. There was no fire, no gunshot wound. Would it not be case for bail? I am not one with a criminal record"

AAG: "We are contesting the bail. We stand by the high court order. We have filed repeated affidavits contesting bail. There are affidavits on record stating accused Ashish Mishra was running from spot"

Justice Suryakant: "If guilty and found guilty on appreciation of evidence, law will take its course. We are at the stage of bail. There are 208 witnesses in 1 case and 198 witnesses in another. Both cases are to be tried together because the genesis is the same. Which version is correct or both are correct will be a finding in trial. The only question at this stage is what are your apprehensions and grounds for opposing bail? The merits, the trial court will see, then the high court will see, then we will see"

AAG: "There are no photographs for that very period at the dangal site where he claims he was and not at the (crime) spot"

Justice Surya Kant: "We are assuming at the moment he was there at (crime) site. Chargesheet has been filed so he is prima facie accused. All that is a matter of trial.

AAG: "That we cannot say"

Justice Suryakant: "What are the well known parameters of granting or refusing bail?"

AAG: "It is a heinous crime, and it would send a wrong message to the society"

Justice Suryakant: "Unfortunately, there are two stories. Both will have to be considered. What to do? What do you say, Mr. Dave?"

Senior Advocate Dushyant Dave, for the victims: "The ground is the law declared by this court for past 75 years. Your lordships ought not to grant bail. Every criminal trial takes 5,7,10 years. Then this may have to be referred to a 5-judge bench that in all murder cases, accused be released on bail. It is unfortunate! Please see 1986 4 SCC, the constitution bench judgment. Chief Justice Chandrachud and Justice Shah recently spoke that in a 302 case, the accused should not be given bail. And here, more so because the trial court and the high court have denied. In 136 jurisdiction, your lordships never interfere with lower courts"

Justice Surya Kant: "The Supreme Court is a mute spectator? We should not grant bail even where there is gross injustice?"

Mr. Dave: "If gross injustice is there, your lordships would record it. We are talking about a cold blooded murder conspiracy, it was pre-planned"

Justice Surya Kant: "Their case is also of murder- the 220 version"

Justice Suryakant: "The father is not an accused. The son staying in or out will make no difference. The principles laid down (in the judgment quoted by Mr. Dave) are correct that this court is not meant to deal with bail matters, but with the passage of time, since morning, there have been 3-4 matters where we had to interfere in bail. The total sentence is of 2 years, in one case, and the bail was canceled by the high court. What to do when a person is dragged to the Supreme Court in such a case? If the SC does not entertain bail matters, where will he go?"

Mr. Dave: "Your lordships have said reversal of bail is on a different footing"

Justice Suryakant: "But the power is constitutional power. Where and when it is to be executed is guided by settled law"

Mr. Dave: "In a murder case, your lordships will normally never grant bail"

Mr. Dave: "The only difference today is that the accused happens to be a powerful man and he is represented by powerful lawyers"

Mr. Rohatgi: "Don’t say that! What do you mean powerful lawyers? We are appearing every day"

Justice Surya Kant: "Yesterday, in a bail matter, passover was sought. Some young lawyer was appearing, some girl was appearing. We said that the presence of a lawyer does not make any difference. We said this. We go by the brief and the merits of the case and we granted bail in that matter"

Suryakant: "The chargesheet is there, the 302 charge is framed, that presumption of innocence may or may not be there, but considering that he is facing a serious charge, there is no doubt about it"

Mr. Dave: "It is a cold-blooded murder of 5 innocent citizens! They had the right to protest! His father threatened, saying 'we know how to throw you out, we know how to deal with you'! He said this to the protesters. There is a video recording, the SIT has recorded it, the chargesheet mentions it. This is not a simple case, this is an extraordinary case"

Justice Suryakant: "The impact of rejection of bail by this court and setting aside of bail by this court is that- this is the technical experience I have gained so far- the 4, 5 persons in the other case and 7, 8 persons in this FIR, till the time the trial is concluded, we have serious doubt if any of those will be granted bail by the sessions court or by the High Court. They will also be languishing and those people will also be languishing!"

Mr. Dave: "The Kerala Journalist (Siddique Kappan) who had gone to cover a Dalit girl's rape case in UP has been in jail for several years!"

Justice Suryakant: "Article 21 will prevail. In Najeeb's case, the UAPA case, I have made my view clear"

Mr. Dave: "If Five innocent people have been slaughtered consciously with full knowledge, not by rash or negligent driving, this is not simple 302. It is a heinous crime! With my experience of 44 years at the bar, if he is out on bail, I can guarantee your lordships the trial will never see the light of the day! We can’t just shut our eyes to what accused who are so powerful can do to trials!"

Justice Suryakant: "Orders can be passed to control the situation"

Mr. Dave: "Your Lordships have held that the consideration of one year spent in jail cannot be a relevant consideration for grant of bail, more so when the offence charged with is under 302, IPC and is punishable with life sentence or death. It is a heinous crime against the society- your lordships have held. Wherever bail is granted under 302, your lordships are cancelling. Here, bail has been declined and your lordships are being asked to consider...."

Mr. Dave: "Why did your lordships intervene? Because the state was lukewarm in proceeding. Your Lordships intervened in the PIL, directed the Constitution of the SIT, the SIT investigated, FIRs are not relevant now, chargesheet is there and it is relevant. SIT found sufficient material to show he is guilty of a serious crime and he cannot get the benefit of bail at this stage. Please see the chargesheet- "The minister shows thumbs down to the farmers....He says, 'I want to say to such people that be in your limits. I was not a minister first but an MLA and people who elected me as MLA would know I am not scared of any challenge'".... This is what a minister says to protesting farmers from a public platform. He is threatening. And this was days before the Lakhimpur Kheri incident. Even today, the father of the accused has not been arrayed as a co-conspirator"

Justice Surya Kant: "The state has the right to ensure fair trial without impact of extraneous circumstances. This is a matter of balancing of interests. Accused has the right to say that until proven guilty, he should not be incarcerated indefinitely"

Mr. Dave: "One year is indefinite? How many undertrials are there....?"

Justice Surya Kant: "In a given case, 4 years maybe less, in a given case, even 1 year maybe more. It depends on the situation. This is the case where further monitoring by this court is required, we are inclined to do that. Monitoring till the time all the crucial eyewitnesses are examined, we are inclined to keep the matter pending. We can’t build pressure on the trial court that do it on a day-to-day basis, other murder cases are there, matrimonial cases are there. It is unfair on our part to tell the trial court to conduct trial for this case on day-to-day basis"

Justice Surya Kant: "For us to be frank, I don’t only see the so-called victim, I also see those who are unable to reach the court. The other victims are those farmers who are languishing in jail. If this court is not granting bail, no court will grant them bail. Who is going to take care of them?"

Mr. Dave: "I am really surprised that your lordships are making this comparison! I am disappointed! Is this man entitled to bail? That is the question! They can find thousands of excuses for supporting him!"

Justice Surya Kant: "The incident has been treated as exactly the same. Neither the SIT nor the High Court has recorded the two of them as separate incidents"

Mr. Rohatgi, in rejoinder: "This is not a cold-blooded murder, it was not preplanned. You may call it cross FIR or not call it cross FIR, but they are aspects of the same incident. Had both sides observed a bit of restraint, we would not have seen the loss of eight lives- five farmers and 1 journalist and three persons put to death from the side of the applicant who were pulled out of the car. Did the attack happen first or did the car run first? Preplanning would have been if I had other items! It is a case of 304 at best. Where is the intention? Their entire argument is an argument of revenge. By way of punishment, I should be kept in jail. But it is to be on facts, length of trial, FIRs, chargesheet, witnesses"

Justice Surya Kant: "What about the influencing of witnesses because of the position you enjoy?"

Mr. Rohatgi: "Your lordships will hold against me because my father is a Minister? It is not a crime to be the son of a minister or son of a bureaucrat or son of another politician. Your Lordships can put any kind of condition. He can report anywhere. We were all young at the bar in 1986. He speaks of a 1986 Constitution bench. Nobody used to come to the Supreme Court then! I wish that position continued today. But today, in 420 (section 420, IPC) cases, the High Court does not grant bail, it is granted after two years! Can the court shut its eyes to that? We cannot sit in a utopian (unclear)....You should not have it both ways- If the Supreme Court should not interfere, then my bail should not have been cancelled!"