Senior Advocate Mukul Rohatgi, appearing for Mishra, argued that he was not there in the car when the incident took place and that no person died due to the alleged gun firing by him.
He said that the photographs which are part of the record shows that the person in the car was one Sumit Jaiswal. The senior lawyer claimed that Mishra was not at the scene of the crime and was elsewhere where a wrestling match was going on and that there are records of mobile tower locations to prove that.
At this juncture, the bench asked what was the distance between the two places, to which Rohatgi replied '4 kilometers'. Justice Kant pointed out that the SIT allegation is that initially, Mishra was at the other location, and when he came to know about the farmers protest gathering, he reached there and then the mishap happened.
Rohatgi also referred to certain photographs of the 'dangal' venue to show Mishra's presence there at 2.39 PM, 2.43 PM, 2.58 PM and 3.20 PM. The crime happened at about 2.53 PM. The senior counsel stated that there are eyewitnesses also asserting Mishra's presence at the Dangal site.
He said that in the passenger seat of the Thar car, a blue-shirt wearing man is sitting, who is not Mishra and was Sumit Jaiswal. The driver of the car was also pulled out and killed.
"This is not a case of somebody pre-planning a murder. This is a case where a fracas happened and some people got killed. I have an alibi. There is no conclusive proof of my client being there(at crime site). How is 302 (murder charge) attracted? He has spent over a year in jail", Rohatgi argued.
Answering the query of the bench, Rohatgi informed that the case has 200 witnesses.
How long should someone be kept inside pending trial? Bench asks State.
The bench asked the State of Uttar Pradesh how long should he be kept in the prison as an undertrial.
"In cases of bail, we consider the seriousness of the crime, the period which the trial will take and also the period spent by the accused. How long should he be in prison?Can he be kept indefinitely? How to balance? The accused has also rights as the victims", Justice Kant asked Additional Advocate General of UP Garima Prashad.
Prashad replied that the offences are grave and that there are statements of injured eyewitnesses regarding the presence of Mishra at the crime spot. She also informed the bench that Mishra's discharge application was rejected by the trial court and the charges have been framed against him.
Premeditated murder : Victims' lawyer Dave
Senior Advocate Dushyant Dave, appearing for the relatives of the victims, submitted that in a murder case, the Supreme Court rarely grants bail if it has been rejected by the trial court and the High Court and that "there is nothing special about this case" . Refuting Rohatgi's submissions, Dave submitted that the crime was "premeditated", as there are statements by Mishra's father a few days ago that the protesting farmers "will be taught a lesson".
"In 302 cases, this court ordinarily does not interfere when the High Court and the trial court have refused bail. There is no exception in this case", Dave stated.
"If someone can kill merely because they are agitating, then nobody is safe in a democracy", he said.
Dave also pointed out that the State would not have acted in this case but for the intervention made by the Court.
"He is in the custody because of our orders..we constituted the SIT..", Justice Kant commented.
Dave also questioned the genuineness of photographs produced by Mishra saying that they are fabricated. He said that the State has filed an affidavit in the High Court stating that these are doctored.
"SIT has reconstructed minute by minute entire event, there are Whatsapp chats showing how the things were planned", he said. Referring to certain threatening statements alleged made by the petitioner's father Ajay Mishra, Dave said "if the Minister makes such statements, the son obviously will be agitated".
"What was the need for this boy to go there with his friends driving at a speed of more than 100 kilometers", Dave asked.
"That is the whole dispute about, whether he was there", Justice Kant observed.
"There is no dispute. There are 164 statements of eyewitnesses", Dave replied.
Justice Kant said that the Court will not go into the question regarding his presence at this stage as it is a matter of trial.
"We are broadly on one point. Under the monitoring of this Court, we have reached the stage of charges. The eyewitnesses have also been granted protection. 200 eyewitnesses have also to be examined....we can't also say that the trial court has to ignore other cases", Justice Kant said.
"If your lordships will lay down a general principle that in all 302 cases, accused will be released after one year, then I bow down. But don't make an exception", Dave retorted.
"In this country, in a case which is as heinous as this, he should not be released. This happened in broad daylight. And two witnesses have already been attacked. They should not be released", Dave asserted.
"But for how long?", Justice Kant wondered.
After a brief discussion, the bench asked the State how long the trial will take and directed the Registrar Judicial to get the information from the trial court.
Initially, the Allahabad High Court had granted bail to Mishra on February 10, 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.
Case Title: Ashish Mishra vs State of UP | SLP (Crl) No. 7857/2022
