"We Expected State To Act On SIT Recommendation" : Supreme Court Reserves Order On Victims' Plea Challenging Ashish Mishra's Bail In Lakhimpur Kheri Case

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli was considering the special leave petition filed by the family members of the farmers who got killed in the Lakhimpur Kheri violence challenging the February 10 order of the Allahabad High Court granting bail to accused Ashish Mishra, son of Union Minister Ajay Mishra Teni.

During the hearing, the bench asked if the High Court could have gone into the merits of the matter while deciding the bail application. The bench also told the State of Uttar Pradesh that it ought to have filed an appeal against the bail order as recommended by the judge monitoring the Special Investigation Team. "We expected state to act on suggestion of the SIT", the bench orally told the State. The State, while saying that the offence was grave, added that Mishra was not a flight risk and that the witnesses have been given adequate protection.

When the hearing started, Senior Advocate Mahesh Jethmalani, appearing for the State of Uttar Pradesh, submitted that the report of the Special Investigation Team, which recommended challenging the bail, has been forwarded to the Government.

On the last occasion, the Supreme Court had told the State of Uttar Pradesh that the judge appointed to monitor the Special Investigation Team(Justice Rakesh Kumar Jain, former judge of the Punjab and Haryana High Court) has recommended that the State should file an appeal challenging it. The Court had sought the State's response to the stand of the monitoring judge. 

"We've forwarded report to State, on whether to file SLP", Jethmalani submitted.

"We can't force you(to file appeal). You didn't respond when letter was written. This is not a matter where you've to wait so much", CJI Ramana responded.

In reply, Jethmalani submitted that the SIT chief recommended filing appeal on the ground that there could be chanced for tampering of evidence. He added that the State has ensured protection to all witnesses and all the 97 witnesses were personally telephoned and none of them said that there was any threat. Jethmalani added that the State had opposed the bail before the High Court and that the stand of the State remains the same.

Senior Advocate Dushyant Dave, appearing for the petitioners, submitted that the High Court went into irrelevant considerations, ignored relevant considerations and that the order suffered from total non-application of mind. He submitted that the Union Minister Ajay Mishra in a public speech had threatened the protesting farmers a week ago. On the day of crime, the District Magistrate had changed the route of the VIP convoy due to the presence of protesters and despite that the accused went in the same route knowing fully that it was changed by the DM.

"The accused went on a route knowing fully well that 10,000 to 15,000 people had gathered therein. Ashish Mishra and his friends raised slogans and crushed the farmers with intention to kill them. 4 farmers and one journalist died because of this", Dave submitted.

Dave took exception to the High Court referring to inquest reports and the postmortem report to observe that there was no firearm injury.

The bench asked how can the merits of the matter be gone into while considering bail.

"Forget about merits, how can the judge go into all this post mortem and all?The question is if prima facie if bail has to be cancelled, you can argue on that.This way of going into the merits and describing the wounds and all is completely unnecessary while considering bail application", CJI NV Ramana observed.

The bench asked if the victims were heard by the High Court. Advocate Prashant Bhushan, appearing for the petitioners, submitted that the victims got disconnected during the virtual hearing and they were not heard.

Dave relied on Supreme Court's judgment in Neeru Yadav vs State of UP which held that bail order suffers from non-application of mind if the seriousness of the offence was ignored. The SIT conducted thorough investigation to conclude that it was a premeditated attack. "SIT has done a thorough investigation, the Judge (HC) doesn't even advert to that. Why was the judge in an anxiety to decide the matter?Where was need for HC to focus on bullet injury. He admits they died due to being dashed by the car. SIT finds there was pre determined mind here, which began with statement of his father. He hit them from behind and kill 5 people. This isn't a case where bail be granted", Dave submitted. 

Senior Advocate Ranjit Kumar, appearing for Mishra, submitted that the High Court went into the question of bullet injury because the FIR lodged by the petitioners stated that one person died due to firing.

The CJI reiterated the concern about the High Court going into the merits of the matter.

"The problem is, the way in which High curt has gone into merits...", the CJI said. 

"If your lordship wants to remand matter back to High Court...", Kumar said.

"We will decide what to do", CJI said.

Kumar also referred to certain CCTV records to argue that Mishra was at a different venue over 2 kilometers away from the crime spot at the time of the incident. He also submitted that some crucial facts were omitted in the translation of the chargesheet submitted by the petitioner.

He also requested the bench to look the matter from an alternate angle, in the light of the counter-case relating to the lynching by the farmers, which is also being monitored by the same SIT judge. He said that as per the counter-case, the driver of the vehicle had received brutal injuries and the vehicle was also subjected to attacks and it could be possible that he lost control and drove through the crowd.

Kumar further submitted that the SIT has recommended filing appeal against the order citing the possibility of tampering of evidence. In this regard, he referred to the State's assurance that extensive security has been provided to the witnesses. Kumar also submitted that any further bail condition could be imposed.

Jethamalani repeated that that the State has given security and there has been no complaint from any of the witnesses after February 10(the date of bail order). The accused is also not a flight risk, he added.

"You say you've given witness protection. Those aren't issues. We constituted SIT and requested judge to monitor. Such a grave situation, you're admitting it is grave. We expected state to act on suggestion of the SIT", CJI told Jethmalani.

The CJI asked what is the stand of the State. Jethmalani replied that the State had "vehemently opposed" the bail and that it was a grave crime. Whether it was intentional or reckless, it is a matter of trial, he added.

"It a grave offence, one consideration is gravity. State can't prejudge offence if it was intentional or not. It's a matter of trial. SIT suggested filing SLP on the ground that he was an influential persons and there was chances of tampering of evidence and that didn't appeal to us", Jethmalani added. He repeated that the State has personally contacted the witnesses and there was no complaint regarding threat perception.

At this point, Dave interjected to submit that one of the protected witnesses was accosted by the friends of the accused on March 10 and was attacked and was given life-threats and an FIR was lodged. However, the State wish-washes the FIR by saying it was a dispute related to Holi celebrations. He further submitted that the High Court confined its consideration only to the FIR without taking into account the chargesheet.

After this, the bench said that it was reserving orders.

 On March 15, the Supreme Court had issued notice on the special leave petition. Advocate Prashant Bhushan, the counsel for the petitioners, had submitted before a bench led by the Chief Justice of India that one of witnesses in the case was attacked on the day of the UP election results after the victory of the BJP in the assembly polls.

The Bench had then asked the State of UP to see that the witnesses are protected.

The State of Uttar Pradesh through its affidavit has told the Supreme Court that the decision regarding challenging the bail granted to Ashish Mishra in the Lakhmipur Kheri case is "pending consideration before the relevant authorities".

The State refuted the allegation that it did not effectively oppose his bail before the High Court. The State has submitted that in accordance with Supreme Court's orders in the Lakhimpur Kheri case, the families of all the victims and all the witnesses whose Section 164 statements were recorded, have been receiving continuous security under the Witness Protection Scheme 2018.

The State also said that the attack of witness, which occurred on March 10, was not related to Lakhmipur Kheri case and was the result of an altercation related to throwing of colours during Holi celebrations.

Bail Order:

In the bail order, the High Court had observed that it is possible that the driver of the offending vehicle must have tried to speed up to protect himself from the protesters.

"..in case, the story of the prosecution is accepted, thousands of protesters gathered at the place of incident and there might be a possibility that the driver tried to speed up the vehicle to save himself, on account of which, the incident had taken place", the Court had observed.

The Court, in its order, observed that primarily, only two allegations had been leveled against Mishra - firstly, of causing firearm injury to the deceased person and secondly – of provoking his driver to crush the protesters.

Regarding the first allegation, the Court observed that no firearm injury had been found on the body of the deceased or any other person, except the injury of the hitting from the vehicle.

Further, on the question of hitting the protestors, the Court opined thus:

" …in case, the story of the prosecution is accepted, thousands of protesters gathered at the place of incident and there might be a possibility that the driver tried to speed up the vehicle to save himself, on account of which, the incident had taken place."

Background

The crime took place on October 3, when several farmers were holding protests against the visit of Uttar Pradesh Deputy Chief Minister Keshav Prasad Maurya to Lakhimpur Kheri district, and four protesting farmers were killed after they were mowed down by an SUV which was part of the convoy of Ashish Mishra.

The Supreme Court in November 2021 appointed Justice Rakesh Kumar Jain, former judge of the Punjab and Haryana High Court, to monitor the investigation in the Lakhimpur Kheri violence.

This order came from the bench headed by the Chief Justice of India NV Ramana, which is hearing a PIL registered on the basis of a letter petition sent by two lawyers seeking an impartial probe into the Lakhimpur Kheri violence of October 3.

The UP Police arrested Mishra following the critical remarks by the Supreme Court.

Case Details: Jagjeet Singh & Ors vs Ashish Mishra Alias Monu & Anr, In Re Violence In Lakhimpur Kheri(UP) Leading To Loss Of Life