Anupam Aysha·
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Victims’ ‘right to be heard’ reaffirmed: Lakhimpur Kheri violence case

This article is written by Anna Mariam Ramacha Thykkadavil 1 st Year student of 3- year unitary LLB at Government Law College, Thiruvananthapuram.

She is also an Editor at ljrfvoice.com.

“If a victim who is the de facto sufferer of the crime is not represented fairly during the adjudication, then the ethos of jurisprudence to prevent and punish crime would turn back on the victim.”

According to the NCRB report for 2020, heinous crimes like rape and murder have a very low conviction rate of 39% and 41% respectively1. Uttar Pradesh was the state with the largest number of murder cases in India.  This was the same state with the highest crime rate per capita, i.e. 7.4 and with the highest hate killings in India. This is a serious issue to be dealt with since Uttar Pradesh is also the most populous state in India with its size if a country would have been the world’s fifth-largest one according to Quartz India. 

When  FIR registration and trials take place, the injured and the victim is always subjugated by power and money. When the victim is not heard during bail, their side is left out. This is a detailed study on hearing the victim in the light of the Lakhimpur Kheri case.

Brief Facts and Procedures

  1. On 29th September 2020, several farmers gathered at the Khairaittya Village in Lakhimpur Kheri District of Uttar Pradesh. This was to celebrate the birth anniversary of Sardar Bhagat Singh and also to protest against the Farm laws legislated in 2020 by the Parliament. Many farmers wanted to protest against the comments made by Ajay Mishra who was the State Home Affairs Minister then. Thus they decided to conduct a protest at Ajay Mishra’s native village on 3rd October 2020. 
  2. On that date, an annual Dangal competition was to be conducted by Ashish Mishra who is Ajay Mishra’s son. For the chief guest of the programme, Mr Keshav Prasad Maurya who was the Deputy Chief Minister of the state of Uttar Pradesh, a helipad was arranged in the playground of Maharaja Agrasen College Tikona. The farmers obstructed, crowding at the place. 
  3. Thus Ashish Mishra conspired with his aides and confidants. They reached on Mahindra Thar SUV, a Fortuner vehicle and a Scorpio vehicle and drove towards the farmers’ protest site. Meanwhile, the farmers were returning home after the protest. The respondent and his associates drove without stopping and hit them with the intention to kill them. Ashish Mishra and his accomplice Sumit Jaiswal then escaped from the Thar and hid in the nearby sugarcane field defending themselves by firing their weapons. As a result, 4 farmers, 1 journalist, the driver of the Thar named Hariom and 2 others got killed. Almost 10 farmers were injured. 
  4. A PIL was filed at the Supreme Court of India.
  5. On 4th October 2021, based on the complaint of Jagjeet Singh, an FIR was registered at Tikonia Police Station against Ashish Mishra and 1520 unknown persons for causing the death of 4 farmers, as FIR No. 219 of 2021. 
  6. On November 17th 2021, the SIT was reconstituted and new members were added to carry out the investigation. Retd. Justice Rakesh Kumar Jain, a former Judge of the Punjab-Haryana High Court was appointed to monitor the same. On 1st January 2022, the new SIT filed a charge sheet with Ashish Mishra as the main perpetrator of the incidents that happened on 3rd October 2021. 
  7. Thus, he filed an application before the honourable High Court of Judicature at Allahabad, Lucknow Bench for his bail. Thus the High Court granted regular bail to the respondent by order dated 10th February 2022 which was later corrected on 14th February 2022. 
  8. The Allahabad High Court2 was of the view that as per the evidence put forward at the court there were no firearm injuries found either on the body of any deceased or on the body of any injured person. The fact that the driver and 2 others were also killed by the protesters also gave an edge to the accused to fake that he was innocent.
  9. The victims had filed an application to rehear the bail application of the accused since the victims could not participate in the proceedings. But it was not considered by the High Court while granting bail to the accused. 
  10. Dissatisfied with that order, the victims appealed before the Supreme Court of India by Criminal Appeal No.632 of 2022. The apex court bench with Chief Justice N. V. Ramana, Justice Surya Kant and Justice Hima Kohli, by judgment dated 18th April 2022, dismissed the appeal and set aside the Allahabad High Court Bench’s order dated 10th February 2022 granting bail to the respondent. The Supreme Court wanted Respondent No.1 to surrender and be taken into custody. The Supreme Court empowered the High Court to address all questions of law in this case and take decisions, considering the application afresh expeditiously, within a period of 3 months, preferably.
  11. Thus Allahabad High Court, Lucknow Bench looked afresh on the case on 9th May 2022 rejecting any kind of relief to the accused and asked the State to adequately represent the victim on 25th May 2022.

ISSUES

  1. Whether a ‘victim’ as defined under Section 2(a) of the Code of Criminal Procedure, 1973 is entitled to be heard at the stage of adjudication of bail application of the accused in the case? 
  2. Whether the High Court overlooked the relevant considerations while passing the impugned order granting bail to the Respondent Accused?
  3. If so, whether the High Court’s order dated 10th February 2022 palpably illegal and warrant interference by the Supreme Court of India?

OBSERVATIONS OF THE COURT3

  1. The honourable Supreme Court analysed the recent developments in the victims’ rights and its jurisprudence. 

UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 adopted vide United Nations General Assembly Resolution 40/34 has defined a victim as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the ’victim’. The Criminal Procedure Code, 1873 was amended in 2003 to insert the definition of the victim along the lines of this definition. Several other countries like the U.S.A, Australia, Canada and other European countries have addressed this issue by legislating in favour of the victims. 154th Law Commission of India Report had recommended a compensatory justice to a

victim under a compensation scheme. Committee on Criminal Justice Reforms, in its Report in 2003, wanted victims to have the right to be represented by an advocate of his/her choice and if not in a position to afford it, then State has to provide the same at its expense; and that the victim has the right to participate in the criminal trial, right to know the status investigation, right to be heard at every crucial stage of the criminal proceedings including at the time of grant or cancellation of bail.  In Mallikarjun Kodagali (Dead) v. State of Karnataka & Ors., (2019) 2 SCC 752, the Supreme Court of India had itself emphasized the victim’s right to appeal against the acquittal of the accused.

The Supreme Court felt that if the victim who is the de facto sufferer of the crime was not represented fairly during the adjudication, then the ethos of jurisprudence to prevent and punish crime would turn back on the victim.

2. The decision of the High Court was analysed by the honourable Supreme Court of India in the light of the Criminal Procedure Code, 1873 and judicial precedents.

According to Section 439 of the Criminal Procedure Code, 1873 High Court or Sessions Court must grant bail after application of a judicial mind, following well-established principles and not in a cryptic or mechanical manner. The honourable Supreme Court referred to Narendra K Amin(Dr) v. The State of Gujarat and Anr., (2008) 13 SCC 584 and Kanwar Singh Meena v. State of Rajasthan (2012) 12 SCC 180, Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr., (2010) 14 SCC 496, Neeru Yadav v. State of U.P and Anr., (2014) 16 SCC 508, Anil Kumar Yadav v. State of (NCT of Delhi) and Anr. (2018) 12 SCC 129, Mahipal v. Rajesh Kumar and Anr., (2020) 2 SCC 118, and reaffirmed that if it is found that an order of the High Court was illegal/ perverse/ on found on irrelevant materials adding vulnerability to order granting bail, an appellate Court will be within its ambit in setting aside the same and cancelling the bail. Also, elaborate analysis of evidence and reasons touching on the merit of the case which may prejudice the accused should be avoided. Prima facie issues are only to be considered. The Court have to state reasons for granting bail, especially, if the accused is charged with a serious offence.
In this context, Supreme Court said that the High Court took a myopic view of the evidence of record and proceeded to decide the case on merits and that an FIR cannot be treated as an encyclopaedia of events. High Court’s order under challenge doesn’t conform to relevant considerations. Therefore the order cannot sustain and needs to be set aside. But this does not deprive the right to bail of the accused till the end of the trial. The Court wanted to direct a fresh fair, impartial and dispassionate consideration of the bail application. And if it is found that the incidents happened as per the allegations, then the State Authorities need to reinforce adequate protection for life, liberty and properties of the eye/ injured witnesses as well as for families of the deceased.

Inexcusable Actions

Ajay Mishra, the Union Minister of State for Home Affairs and BJP leader the accused’s father was also charged in a case associated with the murder of Prabhat Gupta and the case is still sub-judice in the Allahabad High Court. This same man had said that he would teach the farmers a lesson and that he warned the government to mend their ways to control the farmers or otherwise he would do it in two minutes. His angry words humiliated the protesting farmers being a public servant is inexcusable.

The High Court exhorting political people holding high positions to conduct themselves in a manner befitting their status and dignity of their office and not to make irresponsible statements4 is to be cautiously read. Now the issues turn around on the judiciary itself; whether the court itself is been influenced by the political space enjoyed by an accused or have they taken adequate consideration in the view of the evidence brought forward. 

The real concern is why the onus is always on the Supreme Court to correct and direct the High courts. Even the lower courts can righteously decide on how not to deny the side of the victim. When every hope to live is lost, the judiciary is the only light for them. When the victims suffer and the accused (most probably the criminals) who had received bail from influential people to make fake evidence or prominent lawyers to find loopholes, it is the duty of our honourable judiciary to grant justice to the victims without delay or denial. Advocacy and litigation stand always for law and justice. A proper judgment comes only after adequate Court learning. The significant fact is that the prosecution part also must be strong enough to emphasize their points. Hearing the victims during the grant of bail to the accused is a side to take for the Judiciary as a consideration of human rights, a consolation to their dignified life. How many victims would have been under pressure seeing their assaulters receiving bail or proceedings going too long?  Besides criticisms from the Supreme Court, this is an urgent matter that the lower Courts need to give more attention to. At least, let this incident be a turning point in the ever progressive path of victim-centric jurisprudence in Indian Courts.When the Allahabad High Court look into the prosecution by 25th May 2022, we should be waiting to see what time has to offer and whether the accused be punished?

REFERRENCE

  1. NCRB: At 39% and 41%  rape  & murder see poor conviction rate Times of India, 16 Sept 2021

Available online: https://timesofindia.indiatimes.com/india/ncrb-at-39-and-41-rape-murder-see-poor-conviction-rate/articleshow/86249857.cms 

  1. Ashish Mishra v. State of Uttar Pradesh, Allahabad High Court
  2. Lakhimpur-Kheri violence case- High Court rejects prime accused- Ashish Mishra  Available online: https://www.news18.com/news/india/lakhimpur-kheri-violence-allahabad-hc-rejects-prime-accused-ashish-mishras-bail-plea-5139235.html 
  3. Jagjeet Singh and Ors. v. Ashish Mishra and Anr, 2022, Criminal Appeal No.632 of 2022
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