Lakhimpur Kheri - 'Will Poor Prisoners Get Relief If Ashish Mishra Is Also In Jail?': Supreme Court Reserves Judgment On Bail Plea

Ashish Mishra is facing murder charges for allegedly killing five persons in the Lakhimpur Kheri violence of October 2021 after his vehicle allegedly ran over four farmers who were protesting against farm laws and a journalist.

Arguments of Ashish Mishra

Senior Advocate Mukul Rohatgi, appearing for Mishra, submitted that the complainant in the FIR, one Jagjeet Singh, is not an eyewitness.  The senior counsel said that it was the farmers who started the aggression. They pelted stones at the Mahindra Thar car and pulled out the driver. One Jaiswal, who was in the car and witnessed the attack, has given statement to the police in the cross-FIR. The killing of the farmers happened when the vehicle overturned in the farmers' attack.

Rohatgi asserted that the eyewitness account of Jaiswal must be preferred over the hearsay account of Jagseet Singh (the complainant in the FIR).

The incident was at 3 PM and the mobile tower location details show that Mishra was at a place 4 km away witnessing a wrestling match at the time of occurrence.

"It is a melee which happened. Some people in the car got killed, some farmers also", Rohatgi said. He also refuted the allegations of Mishra firing at the people as there are no gunshot injuries.

He highlighted that bail was granted to Mishra by the High Court in the first instance, which was later cancelled by the Supreme Court. Considering that Mishra had been under custody for over a year, Rohatgi pleaded that he be granted bail.

State opposes bail

On the bench asking about the stand of the State of UP, Additional Advocate General Garima Prashad said that the State is "strongly contesting the bail" and supporting the High Court judgment which denied him bail. She pointed out that in chargesheet, 7 witnesses say that they saw Ashish Mishra running from the site.

Whether Mishra is guilty or not is a matter for trial court to decide, the bench said while asking the State, "At this stage, we ask, what are your apprehension? Is it your case that he is likely to tamper with the evidence? Is it your case that he will flee from justice?".

AAG Prashad said that it is a "grave and heinous crime" and granting bail will send a wrong signal to the society.

"Regarding grave and heinous crime, there are two versions", Justice Kant said.

Victims oppose grant of bail

Senior Advocate Dushyant Dave, appearing for the victims in the case, said that as per the law laid down by the Supreme Court for last 75 years, bail cannot be granted to the accused.

In murder cases, bail cannot be granted by the Supreme Court when trial court and the High Court have concurrently denied bail, Dave asserted while citing a Constitution Bench judgment of 1986.

"Supreme Court has no power to grant bail even in cases where gross injustices have been done?", Justice Kant wondered.

"We are talking about a case where a cold-blooded murder has taken place. I will show from the chargesheet that it is pre-planned and a conspiracy. The Minister(Mishra's father Ajay Mishra) threatened that he will do it"

"Father is not an accused and he is still in power", Justice Kant replied. "He should have been", came the quick reply of Dave.

When Justice Kant said that there are contrasting versions about the incidents, Dave said that no equivalence cannot be drawn between the deliberate running of vehicle over protesters and the response of crowd to it.

"If you run a car and run over 5 people, will not the people react in this country? It is sudden and grave provocation. First a murder takes place and the crown goes berserk. Even if in front of Supreme Court some car causes an accident, 100s of people will gather to thrash the car. That is the reaction of society. People were so angry and agitated. I am not defending them. But look at the facts of this case independently", Dave said.

Justice Kant repeated his query whether the Supreme Court is powerless to grant bail merely because the High Court has declined bail.

Justice Maheshwari pointed out that Dave is referring to a 1986 judgment; but the situation has changed a lot these days. Justice Maheshwari added that these days, Sessions Courts and High Courts, unlike the past days, are reluctant to grant bail at the mere mention of Section 302 IPC.

Dave said that there is nothing "exceptional about this case" except the fact that the "accused is a powerful man represented by powerful lawyers".

At this juncture, Senior Advocate Mukul Rohatgi interfered to object to the expression "powerful lawyers" used by Dave. "We are appearing everyday. Can this be a reason to not bail?", Rohatgi asked.

'Minister also should have been an accused'

Dave highlighted that it was a case of killing of innocent people who were exercising the right to protest. The father of the accused had given public statements that he will ensure that the protesters are thrown out.

"It is cold blooded murder of 5 innocent citizens. They had a right to protest. The father of the accused kept saying that the protesters should be thrown off from the place. This is not a simple but extraordinary case".

"The father is not an accused before us",Justice Kant again stated.

When the bench said that the impact of the Supreme Court denying bail will be that no court will grant bail to the accused in future, Dave cited the case of journalist Siddique Kappan.

"When a journalist went from Kerala to UP to cover the Hathras case of murder and rape of murder,  he is in custody since 3.5 years and even when bail granted by this court", Dave said.

Justice Kant then pointed out that he was party to the judgment in the Najeeb case where bail was granted in a UAPA case on the ground of violation of Article 21. 

'Trial will never see the light of the day if bail is granted'

Dave stressed that it was not a simple case of murder but a heinous case where several innocent people were "slaughtered".

"With my 44 years at the bar, I can assure the court that if Ashish Mishra is granted bail, this trial will never see the light of the day and we know how powerful people influence the trial", Dave said.  He also cited recent judgment in the case Mahipal vs Rajesh in which a HC judgment granting bail in a 302 case was set aside. Merely because the accused has spent two years in jail, that is no ground to grant bail, as per the decision. The decision in Rattan Kumar Jaiswal and another (2002 (9) SCC 366) was the next cited by him. 

"These are cases where this Court cancelled bail granted in 302 cases. And here, your lordships are granting?", he asked. Dave said that Rohatgi was referring to the FIR, which is no longer relevant as the chargesheet has been filed. He reminded that the State was initially having a "lukewarm" approach in the case and the investigation cam on the right track only after the Supreme Court intervened to constitute an SIT.

Referring to Section 436A CrPC, which says that a person can be kept as undertrial for a period of one half of the maximum punishment, Dave said that one year cannot be construed as a long period of incarceration in a murder case.

When Justice Kant said that denying bail in this case might become a precedent to deny bail in all future cases, resulting in hardship to several poor innocent people, Dave expressed surprise. 

"I also look at victims who cannot come to court. There are farmers and poor people who are languishing in jail. How will they get relief if Ashish Mishra is also in jail!?", Justice Kant asked.

"I am really surprised that your lordship is making this statement. I am disappointed at this comparison. The only question is whether this man is entitled to bail".

Bail can't be denied just because he is Minister's son, Rohatgi's rejoinder

In rejoinder, Rohatgi submitted that the arguments of Dave are based on prejudice. "The jurisprudence of bail is the length of custody, antecedents, time for trial, witnesses etc. Bail cannot be denied as a punishment", he said.

As regards the 1986 precedent cited by Dave, Rohatgi said that in those days, trial courts used to grant bail and rarely people used to approach the Supreme Court for bail. But now, the situation has changed, and the trial courts and High Courts are extremely reluctant to grant bail even in deserving cases.

Rohatgi also cited Justice VR Krishna Iyer's famous quote "the basic rule may perhaps be tersely stated as bail, not jail". To deny bail in this case will only sent a message that he should be taught a lesson just because he happens to be a Minister's son.

Reliance was also placed on the judgment in Union of India vs Najeeb where bail was granted in a UAPA case. If bail can be granted in an anti-terror law case, why not in ordinary IPC offence, he asked.

Dave said that as per NCRB data, there are almost 13,000 undertrials facing 302 charge in UP and hence Ashish Mishra is "no special".

"This is the argument of punishment. They should not be languishing", Rohatgi retorted.

"Then release them all", Dave replied.

Initially, the Allahabad High Court had granted bail to Mishra on February 10, 2022, 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.

On July 26, the High Court dismissed the bail application after re-hearing the matter, following the remand by the Supreme Court.

Case Title: Ashish Mishra Alias Monu v. State of U.P. SLP(Crl) No. 7857/2022