[BREAKING] Lakhmipur Kheri Case Probe "Not Going The Way We Expected" : Supreme Court Mulls Appointing Retired HC Judge To Monitor

The Supreme Court on Monday again expressed dissatisfaction with the Uttar Pradesh Police probe into the Lakhmipur Kheri violence of October 3,  which claimed the lives of 8 people, four of them being farmers protesters who were allegedly mowed down by the vehicles in the convoy of Ashish Mishra, the son of Union Minister and BJP MP Ajay Kumar Mishra.

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli said that the investigation is "not going the way we expected". The bench expressed dissatisfaction at the fact that the forensic lab reports regarding the video evidence have not yet come and that the mobile phones of all accused have not been seized.

The bench also expressed concerns about the case against the prime accused in the case relating to attack on farmers being diluted by clubbing the investigation with the counter-case of mob lynching. The bench observed that the investigation in the both cases must be separate and the statements of witnesses in the both cases must be recorded independently.

The bench said that it was proposing to appoint a retired judge from a High Court of another state to monitor the investigation to ensure that there is no overlapping of the evidence of both cases. There is a need to infuse fairness and impartiality in the investigation, the bench orally commented.

Senior Advocate Harish Salve, appearing for the State of Uttar Pradesh, sought for time to get instructions from the State Government on the suggestions made by the bench. Accordingly, the bench adjourned the hearing to Friday, November 12.

Court Exchange

"We have seen the status report. There is nothing in the status report. After the last hearing date, we granted 10 days adjournment.  Lab reports have not come. It is not going the way we expected", Chief Justice of India NV Ramana said at the every outset.

Senior Advocate Harish Salve, appearing for the State of Uttar Pradesh, submitted that the lab reports will be ready by November 15.

"What about the other issues?", CJI asked.

"Only one accused's phone has been seized. What about others? Have you not seized?Only one accused had mobile phone?", Justice Hima Kohli asked.

Salve replied that some of the accused said that they did not have phones but the CDRs have been obtained. The accused have thrown away the phones but from their CDRs, their locations are traced, Salve added. "Where have you said in the status report that the accused have thrown away their phones and their CDRs have been traced?", Justice Kohli sought to know.

Justice Surya Kant asked whether there was any attempt to give benefit to one particular accused by clubbing both FIRs (FIR related to attack on protesting farmers, and the counter-FIR for the resulting mob lynching).

"...prima facie it appears that one particular accused is seeking to be given benefit by overlapping two FIRs, you can appreciate very well the fate of the case. Now it is being said that there are two FIRs and the evidence collected in one FIR will be used in another. Evidence in FIR 220 is being collected in a way to protect one accused", Justice Surya Kant observed.

(FIR 219 is with respect to the attack on farmers and FIR 220 is for the mob lynching)

Salve said that care is being taken to ensure that both the cases are separately investigated and there is no mix-up. He said that some of the witnesses who came forward in one case started giving exculpatory statements with respect to the other case.

"They are being careful, they are not mixing FIR 219 and 220. They are both getting investigated. 220 becomes difficult as that was lynching incident. All CDR's are being collected. Where they were at that time is known", Salve said.

"What we except from the SIT is that, as far as witnesses who are coming forward to depose in FIR 219 pertaining to killing of farmers, the recording of their statements, whether under 161 or 164, that will be an independent exercise, and the investigation in 220....", Justice Kant said.  Then Salve interjected to say " that will be separate".

At this point, the judges had a discussion among them for some time. After the brief discussion, Justice Kant told Salve :

"What it appears to us is that... this SIT is unable to maintain an investigative distances between FIR 219, 220 and the third case(related to killing of a BJP worker). If this kind of process continues, it will be a case of weighing the oral evidence in one case against the other...to ensure that evidence in 219 is recorded independently from 220 and there is no overlapping and no intermixing, we are inclined to appoint a retired judge of a different high court to monitor the investigation. Somehow, we are not confident of state judicial committee overseeing...Let a retired judge of different high court monitor".

Justice Kant suggested the names of Justice Rakesh Kumar Jain or Justice Ranjit Singh, who were former judges of the Punjab and Haryana High Court.

"This is to infuse fairness and impartiality in the investigation", Justice Kant added.

"We are here to see that proper investigation takes place", CJ said.

Replying that he understood what the bench is indicating, Salve said that he will get instructions from the State Government regarding this suggestion of the bench. Salve added that the confusion arose as the killing of the journalist was initially thought to be because of mob lynching but later it was found he was crushed under the car.

"The  journalist was killed, he was earlier thought to be with Ashish Mishra but then it was seen he was crushed by the car along with the farmers", Salve said.

The bench observed that the case of the death of the journalist Raman Kashyap was due to the mowing down by the vehicle, and not lynching as it was projected initially.

BJP worker's widow demands CBI probe

After the bench finished hearing, Senior Advocate Arun Bharadwaj, appearing for Ruby Devi, the widow of slain BJP worker Shyam Sunder, expressed lack of confidence with the SIT probe. Flashing a photograph showing Shyam Sunder along with UP cops wearing bullet proof jackets and guns, the senior counsel argued that the picture was taken shortly before his death. Bharadwaj demanded a CBI investigation, expressing lack of confidence with the UP Police probe.

Salve disputed the claim that Shyam Sunder was in police custody and said that the police was trying to rescue people from mob lynching.

"CBI can't be a solution for everything", the bench said. The bench also asked Bharadwaj to refrain from flashing the photograph, saying that the Court is not investigating the case.

Bharadwaj also complained that the witnesses in the case relating to killing of Shyam Sunder are not given protection, as the UP Police is saying that the Supreme Court direction for witness protection is related to only the case of killing of farmers.

Without expressing much on Bharadwaj's contentions, the bench said that it will take up the case on Friday.

"We've heard Counsels, after elaborate arguments, we've made certain suggestions to State of UP as to how investigation is to be conducted. For that Sr Adv Salve has sought some time. List on Friday", the order passed by the bench after the hearing recorded.

Background

A bench comprising the Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli was hearing a PIL filed by two Advocates seeking a time-bound CBI probe into the recent violent incident of Lakhimpur Kheri

On the last occasion, October 26,  Supreme Court had directed the State of Uttar Pradesh to provide protection to the witnesses of the Lakhimpur Kheri violence

The Court had also directed the State of UP to ensure that the statements of relevant witnesses are recorded by the Judicial Magistrate under Section 164 of the Code of Criminal Procedure. If there's any difficulty in recording of the witness statements due to the unavailability of Magistrate, the bench directed the concerned District Judge to ensure that the statements can be recorded by the nearest available Magistrate.

Previous Hearing:

On 26th October, the Court had expressed surprise that only 23 eyewitnesses had been traced out of gathering of hundreds of protesters. The bench orally told Senior Advocate Harish Salve, who represented the State of UP, that the investigation team must try to identify more eyewitnesses. The bench also orally said that the forensic laboratories must expedite the examination of the video evidence of the case.

The directions were issued after perusing the second status report filed by the State of UP regarding the the investigation.

On October 20, Supreme Court had observed that it was getting the impression that the UP Police was "dragging its feet" in its investigation. The bench had made this remark after noting that the statements of only 4 out of the 44 witnesses were recorded under Section 164 of the Code of Criminal Procedure.

"This should not become a never ending story", the CJI had commented.

The Supreme Court registered the PIL on the basis of a letter petition sent by two lawyers seeking proper investigation in the case. The Court's action followed the emergence of shocking videos in the social media showing vehicles in the convoy of Ashish Mishra driving into the protesting farmers.

On the first day of hearing, October 8, the Court had recorded its dissatisfaction with the UP Police probe, as the main accused Ashish Mishra was yet to be arrested then. The bench asked if it was normal for the police to await reply of the accused to a summons served on him in a murder case, instead of arresting him.

Following the sharp criticism by the Court, Mishra was arrested the next day by the UP Police.

Case : In Re Violence In Lakhimpur Kheri(UP) Leading To Loss Of Life| WP(Crl) No.426/2021

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