A retired Judge of a different High Court (HC) will monitor the investigation into the October 3 Lakhimpur Kheri violence in Uttar Pradesh (HC), in which eight people—including four farmers—were killed, till the charge sheet is filed as the probe is “not going the way” the Supreme Court (SC) “expected”.
Berating the UP government over its latest status report on Monday, a Bench comprising Chief Justice of India (CJI) NV Ramana and Justices Surya Kant and Hima Kohli suggested the names of former Judges of the Punjab and Haryana High Court, Justices Rakesh Kumar Jain or Ranjit Singh, for overseeing the investigating, news agency PTI reported.
The four farmers, part of a group peacefully protesting the three contentious farm laws, were mowed down by three vehicles in the convoy of Union minister of state for home affairs Ajay Mishra’s son Ashish in Lakhimpur Kheri. Four more persons, including a journalist, were killed in the ensuing violence. A video of the vehicles mowing down the four farmers went viral with farmer leaders alleging that Ashish was inside one of the vehicles.
Ashish was arrested on October 9 after the apex court expressed dissatisfaction with the UP government’s progress into the case and the severe criticism faced by the Yogi Adityanath administration for allegedly shielding the accused because of his father’s political influence.
“We don’t want to add to political overtones. Let a retired (High Court) Judge oversee (the case),” CJI Ramana observed, according to Live Law. “It is not going the way we expected.” Observing that “there is nothing in the status report except saying that some more witnesses were examined”, he said: “We gave 10 days. The lab reports also have not come.” The court had asked the Adityanath government to list in a status report how many persons had been arrested and on what charges.
When senior advocate Harish Salve, appearing for UP, sought time to get instructions from the state government on the suggestions made by the Bench, said: “After the last hearing date, we granted 10 days’ adjournment. Lab reports have not come. It is not going the way we expected,” adjourning the hearing to November 12.
The top court was of prima facie view that attempts are being made to give benefit to Ashish Mishra by the two overlapping FIRs—No. 219 is with respect to the attack on the farmers and No. 220 regarding lynching. “We are sorry to say that prima facie it appears that one particular accused is being given benefits by overlapping two FIRs,” Justice Kant observed.
“One set of murder is of farmers; then, there is a journalist and there are political workers. There are statements of witnesses that have been recorded that seem to favour the main accused,” Justice Kant further observed. “Now, it is being said that there are two FIRs and the evidence collected in one FIR will be used in another. Evidence in FIR 220 is being collected in a way to protect one accused.”
When Salve said that “they are being careful; they are not mixing FIRs 219 and 220”, Justice Kant said: “What we except from the SIT is that, as far as witnesses who are coming forward to depose in FIR 219 pertaining to killing of farmers, the recording of their statements, whether under [Section] 161 or [Section] 164 [of the Code of Criminal Procedure], that will be an independent exercise, and the investigation in 220....” Subsequently, Salve interjected: “That will be separate.”
Justice Kant maintained that the Bench feels that “this SIT is unable to maintain an investigative distance between FIR 219, 220 and the third case (related to the killing of a BJP worker). If this kind of process continues, it will be a case of weighing the oral evidence in one case against the other”.
Justice Kant said that the Bench is “inclined to appoint a retired Judge of a different High Court to monitor the investigation to ensure that evidence in 219 is recorded independently from 220 and there is no overlapping and no intermixing.” “Somehow, we are not confident of the state judicial committee overseeing ... Let a retired Judge of a different High Court monitor.”
The appointment of a retired HC Judge is important “to infuse fairness and impartiality in the investigation”, Justice Kant added. CJI Ramana observed: “We are here to see that proper investigation takes place.”
The Bench also expressed dissatisfaction with the delay in the submission of forensic lab reports regarding the video and seizing the mobile phones of all the accused. When Salve submitted that the lab reports will be ready by November 15, CJI Ramana asked: “What about the other issues?”
Justice Kohli questioned why “only one accused’s phone has been seized. What about others? Have you not seized? Are you saying none of the other accused had their phones on them?”
Countering Salve, who said that some of the accused have thrown away their phones, but their locations were traced from their CDRs, Justice Kohli questioned: “Where have you said in the status report that the accused have thrown away their phones and their CDRs have been traced?”
On October 26, the apex court had asked the UP to provide security to the witnesses. On October 8, the same Bench had questioned the UP government for not arresting the other accused, and had directed preservation of evidence, according to The Indian Express. “The law must take its course against all [the] accused and the government has to take all remedial steps in this regard to inspire confidence in the investigation of [the] brutal murder of eight persons,” the Bench had observed.