New Delhi: The Supreme Court Monday cancelled bail granted to Ashish Mishra, prime accused in last year’s Lakhimpur Kheri incident, which had resulted in the death of eight people.
Mishra, son of union minister Ajay Mishra Teni, was allegedly in the car that had on 3 October, 2021, mowed down four farmers who were protesting against the now-repealed farm laws, introduced by the Modi government in 2020. In retaliation, the protestors had resorted to violence, killing Mishra’s driver and three others. The incident had taken place in Tikoniya village in Uttar Pradesh’s Lakhimpur Kheri district.
A three-judge bench led by Chief Justice N.V. Ramana said Monday that the Allahabad High Court had shown “tearing hurry” in granting bail to Mishra, and the order was liable to be set aside because it “denied victims the right to participate in the proceedings”. It added that the HC had also exceeded its jurisdiction by touching upon the merits of the case and making observations that can impact the trial in the case.
However, the court noted that Mishra too cannot be deprived of his legitimate right to seek enlargement of bail on relevant considerations. It, therefore, remanded the case back to the HC with a direction that it will re-examine his plea for bail afresh, after providing an opportunity to the complainant or victim to participate in the proceedings.
The bench added it was of the considered view that “ends of justice will be adequately met” if the matter is remanded back so that it can be decided “in a fair, impartial and dispassionate manner and keeping in view the settled legal parameters”.
“To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty,” the court said.
‘Undue advantage’ to FIR
In February, this year, the Allahabad High Court had granted Mishra bail, after noting that the driver must have driven rashly to save himself from the angry protestors.
Families of the deceased farmers had then approached the top court, questioning Mishra’s bail and the HC order, claiming it ignored the police chargesheet that contained detailed allegations against Mishra.
The Yogi Adityanath-led government in Uttar Pradesh, however, did not extend its support to the petitioners, and even rejected the recommendation made by a Supreme Court-appointed Special Investigation Team (SIT), urging it to move the apex court to seek the cancellation of Mishra’s bail. The SIT had made the recommendation on the ground that Mishra could tamper with witnesses, but this was not acceptable to the state.
On Monday, the SC bench, also comprising justices Surya Kant and Hima Kohli, acknowledged that the HC had failed to hear the victims before deciding Mishra’s bail plea. A complainant has “participatory right” from the stage of investigation up to the trial, under criminal jurisprudence, the bench remarked.
Further, the bench lamented that the HC had overlooked relevant considerations and gave importance to “irrelevant considerations”, “adopted a myopic view of the evidence on record” and “proceeded to decide the case on merits.” In doing so, the HC ignored judicial precedents and established parameters for grant of bail, the court observed.
Despite several SC judgments, ruling that an FIR cannot be treated as an encyclopedia of events, the HC went on to give “undue advantage” to the FIR in the case, as well as the subsequent post-mortem and injury reports. There was no legal necessity for the same, the apex court added.
“The impugned order cannot be sustained and has to be set aside accordingly,” the court said, giving a week’s time to Mishra to surrender.
Victims can’t be fence sitters
The SC verdict dwelled at length on the rights of a “victim” in criminal jurisprudence, and traced the history of its evolution. It expressed its disappointment over the HC’s failure in this case to acknowledge the victims’, or their families’, right to be heard.
According to the victims’ families they got disconnected from the online proceedings and could not make effective submissions before the HC to challenge Mishra’s argument for bail. Their application for a rehearing was not considered by the HC when it granted bail to Mishra.
Holding that the victims’ families were denied an effective hearing, the top court said rights of a victim under the criminal procedure code are substantive, enforceable, and are another facet of human rights. They are “independent,” “incomparable” and not “accessory or auxiliary to those of the State”, under the criminal procedure code, the bench reiterated.
Therefore, the presence of the State in a proceeding, does not tantamount to hearing a “victim” of the crime, the bench explained.
Where victims themselves come forward to participate in the criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing.
“If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice,” the court said, adding victims “certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances.”
(Edited by Poulomi Banerjee)
Also read: MoS Ajay Mishra should’ve been sacked right after Lakhimpur speech, says Satya Pal Malik