Lakhimpur Kheri: Does Allahabad HC Bail Order for Ashish Mishra Stand Scrutiny?

Here's why the court granted him bail – and some of the questions that could be raised on appeal.

In a significant order on 10 February, the Allahabad High Court granted bail to the chief accused in the Lakhimpur Kheri case, Ashish Mishra.

The son of Bharatiya Janata Party (BJP) leader and Union Minister of State for Home Ajay Teni Mishra had been in jail since 10 October 2021. His release was ordered by Justice Rajeev Singh with fairly standard bail conditions, ahead of the trial in the case for the deaths of four farmers who were run over by Mishra's car on 3 October last year.

Justice Singh had heard arguments for bail from Mishra's counsel, senior advocate Gopal Chaturvedi, as well as the arguments opposing bail from the additional advocate general VK Shahi a month ago, and reserved his decision on 18 January.

But why did the high court agree to grant Mishra bail, after it had been rejected by a lower court and the police had claimed in their 5,000-page charge sheet that there had been a pre-planned conspiracy to attack the farmers?

Here are the circumstances that led to the judge granting him bail – and the questions that might arise on a possible appeal.

Reason 1: Lack of Gunshot Injuries on Deceased or Injured Persons

According to the First Information Report (FIR) filed in the case on 3 October 2021 itself, Mishra was in the Thar SUV owned by him which arrived at the spot in Lakhimpur Kheri where farmers and labourers had gathered to protest against Ajay Mishra Teni who had threatened those protesting the Centre's controversial farm laws, as well as Uttar Pradesh (UP) Deputy Chief Minister Keshav Prasad Maurya.

At around 3 pm, Ashish Mishra was supposed to have arrived along with others in three-four cars. Seated on the left of the Thar, he is supposed to have fired at the crowd of protesters, and his vehicle, moving at high speed, mowed down four farmers.

The FIR alleges that one of the people who died at the scene, Gurvinder Singh, died due to a firearm injury. Mishra is also alleged to have escaped the scene after the vehicle overturned after firing his gun.

There are statements by witnesses to the police under Section 161 of the Code of Criminal Procedure (CrPC) and to a magistrate under Section 164 of the CrPC, which make similar claims about firing.

Mishra claimed he had never been present at the scene of the incident and that he had remained at the nearby venue for a 'dangal' (wrestling competition), which Maurya and his father were also supposed to attend.

To back up his claim of being falsely implicated, he pointed out that the post-mortem reports of the deceased farmers show no firearm injuries, despite the allegations in the FIR. No bullet injuries were found on anyone else at the scene, despite the claim that Maurya used the cover of gunfire to escape the scene.

Justice Rajeev Singh eventually notes, after looking into the statements by the doctors, that:

"Considering the facts and circumstances of the case in toto, it is evident that as per the F.I.R., role of firing was assigned to the applicant for killing the protesters, but during the course of investigation, no such firearm injuries were found either on the body of any of the deceased or on the body of any injured person."

Questions?

While the lack of bullet injuries does indicate that the claim in the original FIR, that one of the protesters died due to firing, was incorrect, it is not clear why this proved relevant at this stage, where a charge sheet has been filed which does not repeat that specific claim.

Instead, the police have now relied on the report from the forensic laboratory to prove that firearms belonging to the accused persons (including Mishra) had been used.

While this does not definitively show that Mishra was on the scene and fired the gun, there is no impact on the prima facie case of the prosecution. Mishra could well have fired his gun threateningly to escape, without hitting any protesters – this no doubt still needs to be proved at the trial, but the lack of firearm injuries is not some get-out-of-jail-free card in the circumstances.

Reason 2: The Other FIR & the Alternate Version of Events

Leaving aside the issue of firing of a gun, Mishra is alleged to have been seated in the Thar vehicle at all points of the police investigation, and in their charge sheet, the police claim that he provoked the driver of the vehicle, Hariom Mishra, to run over the protesters.

However, the high court judge says that the court can't ignore the other FIR relating to the events of that day, when Hariom Mishra and two others were pulled out of the vehicles which overturned after ploughing through the protesters, and then beaten to death.

"While considering the overall facts of the case, this Court cannot shut its eyes to the killing of three persons sitting in the Thar vehicle, including the driver, who were killed by the protesters. The photograph available in the case diary clearly reveals the brutality of the protesters, those were beating the said three persons, namely, Hariom Mishra, Shubham Mishra and Shyam Sunder."

Justice Rajeev Singh's order at para 24

The judge also says that even according to the prosecution version, there were thousands of protesters gathered at the site of the incident, and, echoing the claim of Mishra's counsel "there might be a possibility that the driver tried to speed up the vehicle to save himself, on account of which, the incident had taken place."

Questions?

Once again, it is difficult to see how these observations are relevant to the granting of bail. Remember again that the case has reached a stage where the charge sheet has already been filed in the case, so the police investigation has been refined from the FIR.

The judge even criticises the police for not referring to the retaliatory killings in the FIR regarding the death of the farmers – even though the latter was registered first (FIR 219) and a subsequent FIR was registered regarding the deaths of the driver of the Thar vehicle and two others (FIR 220).

As regards the alternate version of events, even assuming that there had been some sort of attack on the Thar and other vehicles as claimed by Mishra's counsel (based on the statement of the informant in FIR 220), that does not necessarily justify the killing of the four farmers.

Video footage of the incident clearly shows that the Thar drove into the backs of peacefully marching farmers who were certainly not attacking the car, something which can easily be verified by seeing where the injuries on the deceased and injured persons were as per the medical reports.

Therefore, these observations by the judge also fail to impact the prima facie case of the prosecution.

Reason 3: Ashish Mishra's Cooperation

The next key circumstance pointed to by Justice Singh is that Mishra has cooperated with the investigation. "It is further evident that during the course of investigation, notice was issued to the applicant and he appeared before the Investigating Officer," the order says.

Questions?

However, it is strange that this has been brought up given that Mishra was not even summoned for questioning by the police till days after the incident even though he had been named in the FIR on day one.

His arrest was also only affected after the intervention of the Supreme Court, which noted that the conduct of the investigation was not in line with general practice.

Mishra's cooperation with the investigation was hardly some show of good faith in the circumstances, as the apex court had put the spotlight on the matter. Moreover, cooperation with the investigating authorities has rarely been enough to ensure bail in cases involving serious crimes, unless other circumstances for grant of bail are made out.

This is not to try and argue that bail should not be granted to an accused in the case – indeed, bail is supposed to be the rule, and jail the exception.

However, according to Section 437 of the CrPC, when a person is accused of a crime punishable with life imprisonment (as is the case here, with charges of attempt to murder against Mishra), they are not to be released if there are "reasonable grounds for believing that" he is guilty of that offence.

As pointed out above, the judge has hardly pointed out any reasons to dispute the prosecution case, so the bar under Section 437 should still apply.

The order also fails to consider other relevant issues for grant of bail, including the risk of threats to witnesses or tampering with evidence. The judge has no doubt imposed these as conditions for grant of bail, but there is no analysis of the risk that Mishra, given his father's continuing status as a Union minister and the family's local influence, could actually pose.

The court could well have by the end held that he did not actually pose any such threat, but when there is no analysis of the risk whatsoever, which is standard practice in matters such as this, it raises questions about the order.

Addendum: The Strange Obsession With the Protests

Another strange thing with the Allahabad High Court order is that the judge decides to get into the legality of the protests at Lakhimpur Kheri on the day of the incident, which he says violated the Section 144 prohibitory orders in force at the time in the area.

"However, before parting with the judgment, it is noteworthy to mention here that there was serious lackness of the District Administration, as some persons, for their political benefits, call innocent persons, without due permission under law. In the present case, though the order under Section 144 Cr.P.C. was operating, thousands of persons from different districts, even from other States gathered at one place, which was very well within the knowledge of the District Administration, as is evident from the statement of its officials, but neither any preventive action was taken nor any action against the organisers had been taken."

The judge goes on to issue a direction to the Chief Secretary of Uttar Pradesh to issue necessary directions and guidelines for regulating such assemblies and processions "to avoid inconvenience caused to the citizens on account of such types of assemblies."

This is nothing short of baffling as this was absolutely not the case before the judge. The legality of the protests has nothing to do with the issue of bail for Mishra.

The judge was not dealing with a writ petition regarding the 'inconvenience' caused by the protests, which might have merited such a direction (and even then would not exactly be within the court's power to order).

Instead, the shoehorning of this into a bail order only raises further questions about what exactly the judge was trying to do here.

Though admittedly this may not necessarily be grounds to appeal the order, it will not help when it comes to public perception about a case where there are already reservations about whether justice will actually be done.