The Supreme Court on Monday asked why Uttar Pradesh missed out on filing an appeal against bail granted to Ashish Mishra, prime accused in the Lakhimpur Kheri case and the son of a Union Minister, despite admitting to the gravity of the crime and inspite of the Special Investigation Team urging it to do so.
The court is hearing the appeal made by the bereaved families for cancellation of bail granted to Mr. Mishra by the Allahabad High Court.
“The question is why did you [Uttar Pradesh] not challenge the bail? You knew the circumstances under which we formed the SIT and requested a retired judge of the Punjab and Haryana High Court to monitor the investigation... You yourself admitted the offence is very serious. You say you vehemently opposed the bail application of the accused in the High Court... So we expected you to have acted on the suggestion of the SIT and the monitoring judge to appeal against the bail... You did not...” Chief Justice of India N.V. Ramana, heading a three-judge Bench, asked Uttar Pradesh, represented by senior advocate Mahesh Jethmalani.
The allegation is that Mr. Mishra was part of the group that rammed the vehicle into the farmers who were participating in a rally against the controversial farm laws in Lakhimpur Kheri.
Mr. Jethmalani agreed that the offence alleged, the crushing to death of farmers protesting farm laws and a journalist, was indeed “grave”.
He argued that the SIT had recommended to the State to file an appeal against the bail order of the High Court under the apprehension that Mr. Mishra was influential and could tamper the evidence or “influence witnesses” while out.
Mr. Jethmalani said the State had, however, already addressed this apprehension by providing witnesses with “extensive security”. Police officers would phone the witnesses to ask about their welfare. He said there had been no “untoward incidents” since February 10.
But senior advocate Dushyant Dave and advocate Prashant Bhushan countered the claim by referring to an incident in early March when a key witness was brutally attacked and threatened about his fate with the return to power of the BJP in the State post the Assembly election win.
“Anyway, what kind of an exercise is this where the police calls up witnesses to ask whether the State should file an appeal... It is unheard of,” Mr. Dave submitted.
Justice Surya Kant, on the Bench, asked whether the victims were ever heard by the High Court before bail was granted.
“No, they were not,” Mr. Dave replied.
Senior advocate Ranjit Kumar, for Mr. Mishra, said no court would ever grant his client bail in the case if the Supreme Court revoked it.
“I will be in jail for all time to come... You could remand the case back to the High Court,” Mr. Kumar argued. He said the accused was willing to abide by any bail conditions.
“What was your tearing hurry to apply for bail in the first place?” Justice Hima Kohli asked.
Mr. Kumar said Mr. Mishra was not even at the site of the alleged crime at the time.
Mr. Dave, in his arguments, however countered that the SIT had collected evidence prima facie indicating Mr. Mishra’s involvement in the crime after an extensive investigation which has led to detailed chargesheets in the case.
“The SIT was very clear that the crime was the result of a premeditated conspiracy... Even if the vehicle slammed the farmers can be called a ‘rash and negligent’, such an act would attract Section 302 of the IPC (murder) if done with the intention of causing death,” Mr. Dave argued.
He said the SIT had recorded the statements of 225 witnesses and had another 19 witnesses give their statements to a Magistrate. The investigation saw the SIT pore through call records and video recordings of the incident.
“The SIT has gone into it extensively... But the High Court did not even avert to all that before granting bail,” Mr. Dave argued.
The State said a plea for cancellation of bail could not be turned into a “mini trial” and facts of the case and question of intention should be gone into during trial. Mr. Jethmalani said the State was willing to file an appeal now.
“We are not forcing you to file a special leave petition [an appeal]... This was not a matter in which you wait for months and days,” the Bench responded.
The court reserved the case for orders.
