Accused in Lakhimpur case being favoured: SC

Updated on Nov 09, 2021 01:35 AM IST

Eight people died in that incident on October 3 -- four farmers, three Bharatiya Janata Party (BJP) workers, and a journalist, who, the state said on Monday, was also killed when a vehicle ran over him, not lynched by farmers as originally claimed in some quarters.

The Supreme Court said that the Lakhimpur Kheri violence investigation seemed to be favouring the ‘main accused’. (Burhaan Kinu/HT PHOTO)
The Supreme Court said that the Lakhimpur Kheri violence investigation seemed to be favouring the ‘main accused’. (Burhaan Kinu/HT PHOTO)
By, Hindustan Times, New Delhi

The investigation into the Lakhimpur Kheri incident appears to be favouring the “main accused” in the case, the Supreme Court said on Monday, pushing for the appointment of a retired high court judge from outside Uttar Pradesh to oversee the probe and “infuse fairness, independence and faith” into it.

Monday’s comments by the apex court continue the trend of its criticism of the way the state has handled the investigation in the case where a convoy, in which at least one vehicle belonged to a Union minister, ran over farmers protesting three controversial laws, leading them to run amok and lynch some of the occupants of the vehicles. Eight people died in that incident on October 3 -- four farmers, three Bharatiya Janata Party (BJP) workers, and a journalist, who, the state said on Monday, was also killed when a vehicle ran over him, not lynched by farmers as originally claimed in some quarters.

Ashish Mishra, the son of the minister, is one of the accused in one of the two cases (the convoy running over farmers) being investigated. His arrest came only after the court criticised, on October 9, the kid-gloves treatment he seemed to be receiving from the police.

“We are very sorry to say this but prima facie, it appears that one particular accused is sought to be given benefit by overlapping the two FIRs in the case...evidence is collected...in a way to protect the main accused,” remarked a bench, headed by Chief Justice of India (CJI) NV Ramana, while hearing the case registered by the top court on its own motion (suo motu) .

The other case being investigated by the police has to do with the lynchings of some of the occupants of vehicles in the convoy, and the court was perturbed that some of the evidence being collected in this case was aimed at protecting the “main accused”.

The court did not name Mishra, the son of the junior Union minister of home affairs Ajay Mishra ‘Teni’.

To be sure, on Monday, the state said it has “clinching evidence” of Mishra’s presence at the scene (something he and his father have consistently denied), but that forensic reports on this are awaited.

The bench, which included justices Surya Kant and Hima Kohli, underscored the need for appointing a retired high court judge from outside the state to monitor the probe after finding out that the investigation in the farmers’ murder case (FIR no 219) could be adversely impacted by the manner in which the UP Police were recording evidence in the case relating to the murder of three BJP workers (FIR no 220) .

It added that the court does not have confidence in the judicial commission appointed by the UP government. On October 7, the UP government set up a judicial commission, headed by retired Allahabad high court judge PK Srivastava, to probe the incident.

The court’s views on having a former high court judge to independently oversee the probe and ward off any mix-up of evidence were fortified by the revelation that local journalist Raman Kashyap was not murdered by the protesting farmers, as widely perceived, but run over by the offending vehicle that fatally knocked down the four farmers.

On his part, senior counsel Harish Salve, appearing for the UP government, told the bench that the police have “clinching evidence” in the form of videos and call detail records (CDRs) to show the presence of Ashish Mishra on the spot, and that forensic reports were awaited.

Commenting on the delay in getting the reports from the forensic science laboratory (on the video clips of the incident) and also on non-seizure of mobile phones of all the accused, the bench said: “We gave you 10 days after the last date but nothing has been done. This is not going the way we wanted it to.”

The police have identified a total of 16 accused in the case. While Mishra and 12 others were arrested over the past few weeks, the three others are the three BJP workers lynched in the aftermath.

On Monday, when the Supreme Court took up the latest status report submitted by the UP government in a sealed envelope, it pointed out certain statements recorded by the police during the course of the investigation into the death of the three BJP workers. The bench noted that at least 50 witnesses in the BJP workers’ murder case (FIR no 220), in their statements to the police, sought to exonerate the “main accused” in the farmers’ murder case (FIR no 219).

“We are very sorry to say this but prima facie, it appears that one particular accused is sought to be given benefit by overlapping the two FIRs. Now, it is being said that there are two FIRs and the evidence collected in one FIR will be used in another. Evidence in the FIR no 220 is being collected in a way to protect the main accused. You can very well understand the fate of the case in such a scenario,” the bench pointed out to Salve.

The senior lawyer replied that it was after the Supreme Court’s direction on October 26 that the police started recording statements of witnesses in the second FIR relating to BJP workers’ death.

“Some of these witnesses started giving exculpatory statements against the accused in the other FIR. There are a lot of people who are trying to exculpate the accused in the farmers’ case. They appear for their statements in FIR no 220 but start giving evidence about FIR no 219. The police also have this problem but they will have to record statements of everyone,” Salve argued.

The bench, however, observed that the two FIRs should be investigated separately.

“What appears to us is that this SIT (special investigation team) is unable to maintain an investigative distance between the different FIRs. They are not bound to record the statements of whosoever is coming forward. The witnesses must have something substantial to say. Otherwise, it will become oral evidence in one case versus oral evidence in another case,” said the bench.

It added: “To ensure that there is no mix-up of evidence in the case, we are inclined to appoint a former judge of a different high court to monitor this probe. We are not confident about your state judicial commission to oversee it. Let a former judge monitor everything till the charge sheet is filed.”

The bench proposed the names of justices Ranjit Singh and Rakesh Kumar, both retired judges of the Punjab & Haryana high court, asking Salve to come back with instructions on Friday about the state’s preference of a judge when the matter is next heard.

The bench emphasised that there were three sets of murders in the case -- of the four farmers; three political workers; and a journalist. “Each one should be investigated independently and taken to a logical conclusion,” it added.

At this, Salve said that the investigations have now disclosed that the journalist was also crushed by the offending vehicle. “He was earlier thought to be with Ashish Mishra but then it was seen that he was also crushed by the car with the farmers. His case has now been transferred to the FIR on the farmers’ death,” the lawyer said.

The disclosure prompted the bench to remark: “This is why we are saying let a former high court judge oversee the investigation... that is why monitoring is required. The cause of death (of the journalist) was earlier being shown as something entirely different. The impression given to us was that the journalist was also in the car,” the bench told Salve, who replied that there are political overtones to this case.

The bench retorted: “We don’t want to add to any political overtone or any other tone. We don’t want to monitor each and everything. Let a retired high court judge look at everything till the chargesheet is filed. This is the only solution.”

At this point, senior advocate Arun Bhardwaj registered a complaint on behalf of the widow of BJP worker Shyam Sunder Nishad, who was among the three lynched allegedly by the furious crowd .

Bhardwaj showed a picture to claim that Nishad was initially in the custody of the policemen but was later lynched by the mob. The lawyer said that Nishad’s family has lost faith in the state police and wants the Central Bureau of Investigation (CBI) to take over the investigation into Nishad’s death.

But the bench replied: “We are not giving it to the CBI. CBI is not the solution to everything. We want a retired high court judge to monitor the probe and filing of separate charge sheets. We want to protect the evidence collected.”

On October 26, the UP government informed the Supreme Court that all the 16 accused, including the three BJP workers who were later allegedly lynched, have been identified by eyewitnesses in the case. The state did not name any accused though.

On October 20, the bench asked the UP Police to pull up its socks and record witnesses’ statements before a judicial magistrate under Section 164 as quickly as possible to dispel the impression that the state is “dragging its feet”.

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