Lakhimpur case:SC cancels bail granted to Ashish Mishra, sets aside Allahabad HC order

PTI, Apr 18, 2022, 5:41 PM IST

New Delhi: The Supreme Court Monday cancelled the bail granted to Ashish Mishra, son of Union minister Ajay Mishra, in the Lakhimpur Kheri violence case and asked him to surrender in a week, saying the ‘victims’ were denied “a fair and effective hearing” in the Allahabad High Court which adopted a “myopic view of the evidence.” The apex court held that the high court took into account irrelevant considerations and gave extra weightage to the contents of the FIR.

It remanded the bail application for fresh adjudication ”in a fair, impartial and dispassionate manner, and keeping in view the settled parameters” within three months after taking note of relevant facts and the fact that the victims were not granted a complete opportunity of being heard.

The top court dealt in detail with the rights of victims in criminal cases and said they are “totally independent, incomparable, and are not accessory or auxiliary to those of the state” under the Code of Criminal Procedure. “We are, thus, of the view that this court on account of the factors like (i) irrelevant considerations having impacted the impugned order granting bail; (ii) the High Court exceeding its jurisdiction by touching upon the merits of the case; (iii) denial of victims’ right to participate in the proceedings; and (iv) the tearing hurry shown by the High Court in entertaining or granting bail to the respondent/accused; can rightfully cancel the bail, without depriving the Respondent-Accused (Mishra) of his legitimate right to seek enlargement on bail on relevant considerations,” said a bench comprising Chief Justice N V Ramana and justices Surya Kant and Hima Kohli.

Writing the 24-page order for the bench, Justice Surya Kant took note of submissions of victims that they were not heard in the high court as the video connection of their lawyer was lost and said, “we are constrained to express our disappointment with the manner in which the high court failed to acknowledge the right of the victims.” The verdict considered questions including whether a ‘victim’, as defined by CrPC, is entitled to be heard at the stage of adjudication of the bail plea of an accused.

It also dealt with the issue of whether the high court overlooked relevant considerations while granting bail and if so, should the apex court interfere.

It said until recently, criminal law had been viewed on a dimensional plane in which courts were required to adjudicate between the accused and the state, and the ‘victim’ had no participation in the adjudicatory process and ”was made to sit outside the Court as a mute spectator.” The verdict said, ”a victim’s within the meaning of CrPC. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings.” ”The victim has a legally vested right to be heard at every step post the occurrence of an offence,” it said, adding, ”such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.” On the first issue, it answered in the affirmative and held that in the present case, the ‘victims’ have been denied a fair and effective hearing at the time of granting bail to the accused.

”It cannot be gainsaid that the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights. The victim’s right, therefore, cannot be termed or construed restrictively like a brutum fulmen,” it said, adding such rights are ”totally independent” of the State.

The verdict said while deciding the bail plea, a court ”should refrain from evaluating or undertaking a detailed assessment of evidence, as the same is not a relevant consideration at the threshold stage.” A court may examine prima facie issues, including any reasonable grounds whether the accused committed an offence or the severity of the offence itself, an extensive consideration of merits which has the potential to prejudice either the case of the prosecution or the defence, is undesirable, it said.

”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,” it said.

”The High Court has taken into account several irrelevant considerations, whilst simultaneously ignoring judicial precedents and established parameters for grant of bail. It has been ruled on numerous occasions that an FIR cannot be treated as an encyclopaedia of events,” it said.

While 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, it said, adding observations of high court may have bearings on the trial.

”Keeping all these factors cumulatively in mind, we have no difficulty in answering the question (B) also in the affirmative. It is held that the order under challenge does not conform to the relevant considerations,” it said referring to the high court order that had discussed the merits of the case.

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