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Does Supreme Court Grant Bail To Every Murder Accused After One Year Custody? Dushyant Dave Asks In Lakhimpur Kheri Case

Will the Supreme Court establish a general principle that any suspect charged with murder will be released after a year in prison? Senior lawyer Dushyant Dave asked this question when the Court considered whether to release Ashish Mishra, son of union minister Ajay Mishra, on bail in the Lakhimpur Kheri case, given that he has been in detention for more than a year.

“If your lordship can lay down a general principle that in all 302 cases the accused will be released after a year, then I bow. But do not make an exception in this case,” Dave said before a court of justices Surya Kant and Krishna Murari. He argued that the Supreme Court will not normally intervene if bail has been simultaneously denied by the court and the Supreme Court in a serious crime such as murder.

The senior lawyer represents the relatives of the victims of the October 2021 Lakhimpur Kheri crime, in which five persons were killed after vehicles belonging to Mishra’s convoy allegedly hit a group of farmers protesting against the agricultural laws.

Dave argued that Ashish Mishra’s father, union minister Ajay Mishra, had made previous statements threatening the protesting farmers and that the crime was “premeditated”. Despite the changed route, the petitioner went to the protest location. “What did this boy need to cover that route with his friends while driving at over 100 kilometers?” he wondered. He urged the court not to ignore the seriousness of the crime, which took place in broad daylight.

“It’s a very serious incident that shocked the whole nation. If someone can be killed just for being seditious, then no one is safe in a democracy,” said Dave. He also pointed out that two witnesses have already been attacked. When the bank pointed out that it had issued witness protection orders, Dave said: “These are powerful people”.

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The senior counsel stressed that Mishra was only arrested because of the intervention of the Supreme Court and that the state supported him until then. Uttar Pradesh Additional Solicitor General Garima Prashad objected to this statement by Dave saying “it is very unfair”.

Senior lawyer Mukul Rohatgi, who appeared before Mishra, made a plea for an alibi by stating that he was in a different location when the crime took place. He claimed that Mishra was attending a wrestling meeting about four kilometers away and that there are photos and cell tower location data to back this up. Rohatgi claimed that another person was in the passenger seat of the Thar vehicle involved in the incident.

Dave countered these arguments by saying that the alibi case is based on falsified evidence. He said that there are testimonials about Mishra’s presence at the site.

However, the bank said it is not addressing that factual controversy at the current stage as it only deals with the issue of bail.

“In cases of bail, we take into account the seriousness of the crime, the length of time the trial will take and also the time the suspect has spent. How long should he be in jail? Can he be held indefinitely? How should he be balanced? The suspect also has rights as a victim,” the bank noted.

“We are broadly on one point. Under the supervision of this court, we have entered the indictment phase. Also the eyewitnesses have been given protection. Also, 200 eyewitnesses have to be heard. Now we are at a stage where the trial is about to start and all witnesses must be heard, but the court cannot be asked to rest on other matters and deal with only this one case.”said Judge Kant.

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“If your gentlemen lay down a general principle that in all 302 cases the defendant is released after a year, I bow down. But don’t make an exception,” replied Dave.

“In this country, in a case as horrific as this, he should not be released. This happened in broad daylight. And two witnesses have already been attacked. They should not be released,” said Dave.

“But for how long?” Judge Kant wondered.

After a brief discussion, the court asked the state how long the process will take and ordered the clerk to get the information from the court.

The court ordered the Registrar (judicial) to find out from the Chief Judge of the Additional Sessions in Lakhimpur Kheri how much time the normal case trial is likely to take to complete without compromising with other pending or prioritized cases. The state has also been ordered to inform the court of the status of the investigation in the counter-suit regarding the lynching of three persons, including the driver of Mishra’s car, in the incident.

The case will be heard again in January.

Initially, the Allahabad High Court had released Mishra on bail on February 10, but that was the case overruled by the Supreme Court’s trial court consisting of the then CJI NV Ramana, Judge Surya Kant and Judge Hima Kohli in April 2022 after noting that the Supreme Court considered irrelevant considerations and ignored relevant factors. The bail application was subsequently referred back to the Supreme Court. The Supreme Court order was appealed by the relatives of the farmers who died in the crime.

On July 26, the Supreme Court rejected the bail application after rehearing the case following the High Court’s back-order. Recently, the court filed charges against Mishra and rejected his application for resignation.


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