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What the Supreme Court has done by cancelling bail of Lakhimpur Kheri accused

Rekha Sharma writes: It has upheld the right of the victim to be heard, giving them confidence that their voices will not be silenced.

Written by Rekha Sharma |
Updated: April 26, 2022 8:56:14 am
The Supreme Court while cancelling the bail gave one week’s time to the accused to surrender. (Illustration by C R Sasikumar)

The Supreme Court order cancelling the bail of Ashish Mishra and his consequent surrender before a local court have not only served the cause of justice but also given confidence to the victims that their voices will not be silenced as was done by the Lucknow bench of the Allahabad High Court. During the hearing of the bail application, the counsel for the victims got disconnected from the online proceedings, and he moved an application for a rehearing which was not considered. Holding that a victim has an unbridled participatory right, from the stage of investigation till the culmination of the proceedings, and that such a right is substantive, enforceable and another facet of human rights, the apex court expressed its disquiet over the manner in which the high court failed to acknowledge the right of the victims to be heard.

It may be recalled that Ashish Mishra is the son of Ajay Mishra Teni, a minister of state for home affairs in the Union cabinet. He allegedly, along with his aides, drove an SUV, with two others vehicles in tow, into a group of farmers in Lakhimpur Kheri district in UP, as they were walking back after protesting against the three farm laws, and allegedly also opened gunfire from inside his vehicle. This resulted in the death of four farmers and one journalist, with the driver of the SUV and two more killed in the clash that followed and several others injured.

It also needs to be recalled that notwithstanding the ruthless manner in which the farmers were mowed down, and despite the fact that the incident caused widespread outrage and clamour for the arrest of Ashish Mishra, who was named in the FIR as the prime accused, the UP police made no effort to arrest him. The police treated him with kid gloves, and during the so-called investigation summoned him not as an accused, but as a witness. He was arrested only after the matter reached the Supreme Court on a letter written by two advocates, and after the court had made scathing observations about the manner in which the investigation was conducted, compelling it to appoint an SIT headed by a retired judge from another high court to carry out further investigation.

None of these facts was found grave enough to merit consideration by the learned high court judge. He instead laid undue emphasis on only one fact, namely, that no fire injury was found on any of the deceased. Castigating the high court, the Supreme Court in its order said that “instead of looking into aspects such as the nature and gravity of the offence; severity of punishment in the event of conviction; circumstances which are peculiar to the accused or victims; likelihood of the accused fleeing; likelihood of tampering with the evidence and witnesses, and the impact that his release may have on the trial and society at large, the High Court had adopted a myopic view of the evidence and proceeded to decide the case on merits.” The Supreme Court has remitted the case to the high court for considering the bail application afresh, but it has fallen short of giving a further direction that it will not be heard by the same judge. Given that the judge virtually ignored all the principles that a court needs to keep in mind in the matter of bail, it would have been just and fair if the Supreme Court had also given a specific direction that the matter would not be heard by the same judge. In view of this ambiguity, let us hope and trust that the chief justice of the concerned high court would entrust the case to a different judge.

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The Supreme Court while cancelling the bail gave one week’s time to the accused to surrender. This long period of freedom to a person with powerful links, and the backing of the State machinery, is disconcerting.

The order also throws light on another disturbing fact. It observed that the high court demonstrated tearing hurry in entertaining or granting bail to the accused. The reasons are obvious, and need not be stated explicitly. But then, this has not happened for the first time. Often, the cases of the high and mighty are taken up for hearing out of turn, sometimes in a matter of a day, while others with little or no means languish in jails for years. Is it not time that the Supreme Court issued directions to the high courts, and also to its own registry, to collate, and furnish information about how many bail applications or habeas corpus petitions concerning the civil liberties and constitutional rights of the people to life and liberty are pending and since when? The information must also explain why some cases received precedence over others. We are living at a time when the state and its instruments, and those enjoying their patronage, are trampling with impunity over the fundamental rights of the people to life and liberty. In these trying times, the beleaguered citizens turn to the courts for relief. Let no one feel that they are the children of a lesser god.

The Chief Justice of India recently visited Jallianwala Bagh and wrote in the visitor’s book, “Jallianwala Bagh manifests the strength and resilience of the people of this country. This serene garden is symbolic of the great sacrifice made in the face of tyranny. It serves as a reminder of the heavy price paid for freedom, which we must always cherish and protect.” These are poignant words. The Chief Justice is the first citizen of the judicial fraternity, and people look towards him and his worthy colleagues when their freedom is in danger at the hands of the s tate. Hopefully, the courts will not disappoint.

This column first appeared in the print edition on April 26, 2022 under the title ‘Justice for the silenced’. The writer is a former judge of the Delhi High Court

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