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

The Supreme Court on Monday reserved orders on the plea to set aside the bail granted to Ashish Mishra in the 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...

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

Srishti Ojha

Tags