The Supreme Court on Thursday said denial of bail to Ashish Mishra, the prime accused in the Lakhimpur Kheri killings and son of Union Minister of State for Home Affairs Ajay Kumar Mishra, will have a ripple effect on poor farmers languishing in jail in a counter case, and they may not get out “for all time to come”.
The court was referring to the four farmers charge-sheeted by the Uttar Pradesh Police in a “cross FIR” relating to the Lakhimpur violence for the alleged lynching of a driver and two workers of the ruling Bharatiya Janata Party.
Mr. Mishra has been charged with murder and criminal conspiracy in connection with the alleged mowing down of four people protesting the government’s controversial agricultural laws and a journalist covering the farmers’ rally in Lakhimpur Kheri in 2021. The Allahabad High Court had refused him bail.
“There are poor farmers languishing in jail… who is going to look after them if this man (Ashish Mishra) is not granted anything… Nobody is going to grant them bail. They will remain in jail for all time to come,” Justice Surya Kant, leading a Bench with Justice J.K. Maheshwari, said reserving Mr. Mishra’s bail plea for judgment.
Senior advocate Dushyant Dave, for the victims’ families, paused in his oral arguments at the court’s remark, saying “I am really surprised Your Lordships are making this comparison. I am disappointed”.
“But the trial court has rejected their bail…” the Bench remonstrated.
“But why should that worry My Lords? The question here is why should this man (Mr. Mishra) be granted bail… There can be a thousand excuses to grant him bail, but they are all arguments of prejudice,” Mr. Dave objected.
The State of Uttar Pradesh, represented by Additional Advocate General Garima Prasad, said the government was strongly contesting Mr. Mishra’s bail.
“He has committed a heinous crime. It (granting him bail) would send a wrong message to society,” Ms. Prasad submitted.
Mr. Dave said if Mr. Mishra got bail, the “trial would not see the light of the day”.
Senior advocates Mukul Rohatgi and Siddharth Dave, for Mr. Mishra, said it was not a case of murder and a “melee” had happened in which even people in the car which allegedly ran over the victims had got killed. Mr. Mishra had already been incarcerated for a year. The Sessions Judge’s report to the apex court had said the trial would take another five years to complete. Both the main case and the counter case had a total of 400 witnesses lined up to testify. Mr. Mishra was not even at the site of the incident. He should be granted bail and not continue to face prolonged incarceration.
The Bench, while acknowledging that Mr. Mishra was “prima facie an accused”, said it had to balance his right against prolonged incarceration without bail and the right of the victims to get justice.
“This is a case in which further monitoring by the Supreme Court is required. We are inclined to keep the matter pending at least till the eyewitnesses testify in trial…” Justice Kant said.
Mr. Dave said five people have been “slaughtered consciously by the son of a powerful man, who himself should have been made an accused in the case for making incendiary remarks in public platforms against protesting farmers just days before the Lakhimpur Kheri incident”.
“A heinous crime has been committed. The Supreme Court had constituted a Special Investigation Team in this case. This is cold-blooded murder and not a case of rash driving. The time an accused spends in jail is not a consideration while examining the question of bail in a heinous crime,” Mr. Dave submitted.
He said the High Court has rejected Mr. Mishra’s bail application and the Supreme Court, acting under Article 136 (appellate) jurisdiction of the Constitution, should not intervene. In cases of heinous crimes, the High Court should be considered the final arbiter of bail.
Justice Kant objected to the line of argument, saying the Supreme Court cannot remain a “mute spectator” whenever High Court deny bail, especially when gross injustice was done.
“We are not talking about gross injustice here, but a conspiracy to commit cold-blooded murder. One journalist and four innocent people were killed,” Mr. Dave pointed out.
“My Lords cannot grant bail and ought not to… Murder trials normally take a minimum of five to seven years… Then refer to a larger Bench the question whether bail should be granted in cases in which trial takes five to seven years,” Mr. Dave submitted.
