The Supreme Court on Monday set aside the bail granted to Lakhimpur Kheri accused and Union minister’s son Ashis Mishra, saying Allahabad High Court had given the relief in a “tearing hurry”, on “irrelevant considerations” and with a “myopic” view of the evidence.

The apex court cancelled Ashis’s bail bonds, directed him to surrender within a week and asked the high court to consider his bail plea afresh, preferably within three months and “on relevant considerations” and “in a fair, impartial and dispassionate manner and keeping in view the settled parameters”.

Ashis is accused of being in a Thar jeep belonging to his father, junior home minister Ajay Mishra Teni, that had mowed down four farmers and a journalist in Lakhimpur Kheri, Uttar Pradesh, on October 3 last year.

Eyewitnesses have said Ashis got off the car after the carnage, fired gunshots and escaped while angry farmers lynched the driver and two associates of Teni who were in the SUV.

The bench of Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli said it was cancelling the bail, granted on February 10, on the following grounds:

⚫ Irrelevant considerations having influenced the grant of bail;

⚫ The high court exceeding its jurisdiction by touching upon the merits of the case;

⚫ Denial of the victims’ (dead farmers’ families) right to participate in the proceedings;

⚫ The tearing hurry shown by the high court in entertaining and granting the bail plea.

In this context, the apex court said that victims and their families have an “unbridled” right to be heard at every step from “the stage of investigation till the culmination of the proceedings in an appeal or revision”.

Fresh hearing

The apex court said that considerations of the unsatisfactory way the bail was granted can “rightfully cancel the bail, without depriving the (accused) of his legitimate right to seek enlargement on bail on relevant considerations”.

“We have not expressed any opinion either on facts or merits, and all questions of law are left open for the high court to consider and decide,” Justice Kant, who authored the judgment, said.

The bench said it agreed with Ashis’s counsel Ranjit Kumar that cancellation of the bail by the apex court was likely to be construed as an indefinite foreclosure of his client’s right to seek bail, and was therefore asking the high court to consider his plea afresh.

The apex court was hearing an appeal from the families of some of the dead farmers against the bail granted to Ashis.

It, however, turned down a plea from senior advocate Dushyant Dave, representing one of the farmer families, that the bail application be assigned to another high court bench and not the one that had granted bail.

Farmers’ families

The apex court expressed disappointment at the high court’s failure to acknowledge the right of the dead farmers’ families to be heard.

“…That the counsel for the ‘victims’ had got disconnected from the online proceedings and could not make effective submissions before the high court has not been controverted by the respondents (Uttar Pradesh government and Ashis),” the apex court said.

“Thereafter, an application seeking a rehearing on the ground that the ‘victims’ could not participate in the proceedings was also moved but it appears that the same was not considered by the high court….”

The top court said the fresh hearing of the bail plea “shall be decided on merits and after giving adequate opportunity of hearing to the victims as well”.

“If the victims are unable to engage the services of a private counsel, it shall be obligatory upon the high court to provide them a legal aid counsel with adequate experience in criminal law, at the State’s expense,” the apex court added.

Wrong parameters

The apex court said a court, while granting bail, might examine prima facie issues such as any reasonable grounds whether the accused had committed an offence and the severity of the offence. But an extensive consideration of merits, which has the potential to prejudice the case, is undesirable.

It said the high court had taken into account several irrelevant considerations while ignoring judicial precedents and established parameters for the grant of bail.

The high court had held that the primary allegation against Ashis was that he had fired his weapon and caused gunshot injuries, but the post-mortem and injury reports revealed no firearm injury. Therefore, the high court said, the case was one of “accident by hitting with the vehicle”.

Second, the high court had said, the allegation that Ashis had provoked the car’s driver could not be sustained since the driver and two others who were in the vehicle were killed by the protesting farmers. Third, the high court noted, the accused had joined the investigation. Fourth, the chargesheet had been filed.

“While the allegations in the FIR that the accused used his firearm and the subsequent post-mortem and injury reports may have some limited bearing, there was no legal necessity to give undue weightage to the same,” the apex court said.

“Moreover, the observations on merits of a case when the trial has yet to commence, are likely to have an impact on the outcome of the trial proceedings.

“Instead of looking into aspects such as the nature and gravity of the offence, severity of the 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 the society at large; the high court has adopted a myopic view of the evidence on the record and proceeded to decide the case on merits.”

Victims’ rights

The apex court stressed that victims and their families had a certain right to be heard in criminal matters.

“A ‘victim’ within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/ her right to participate in the proceedings. He/ she has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision,” it said.

So, “where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing” to avoid any possible “grave miscarriage of justice”.

“Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses,” Justice Kant observed.