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The Supreme Court Monday suggested that a former judge of a “different high court” should monitor the Uttar Pradesh SIT probe on day-to-day basis in the Lakhimpur Kheri violence case to infuse "independence, impartiality and fairness”, saying the investigation was not going the way it expected.
Red flagging some of the issues pertaining to the SIT probe conducted so far, the top court said, “prima facie it appears that one particular accused (in the farmers' mowing down case) is sought to be given benefit” by securing or procuring evidence from witnesses in the subsequent case related to the lynching of political activists by the farmers' mob.
It was also very critical of the Special Investigation Team (SIT) of state police has seized the mobile of Ashish Mishra, one of the arrested 13 accused, and rest of the phones belonged to the witnesses to the alleged mowing down of the farmers.
“We have seen the status report. There is nothing in the status report except to say that some more witnesses have been examined. We granted 10 days time. Laboratory reports have not come. No, no, no...it is not going the way we expected,” said the bench headed by Chief Justice N V Ramana.
Reiterating its earlier observation to rule out a CBI probe into the October 3 incident, the bench, also comprising justices Surya Kant and Hima Kohli, said it did not want to add any “political overtones” to the case and an independent retired judge should monitor the probe.
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It asked senior advocate Harish Salve, appearing for Uttar Pradesh, to appraise it of the stand of the state government by November 12 on the suggestion that the SIT probe be monitored by a former judge of a different high court.
Making clear that the probe into two separate FIRs related to the mowing down of the farmers and the subsequent lynching of political activists respectively should be carried out separately, the bench said it seemed that the evidence in the lynching case was being “procured or secured” to save the accused in the earlier case.
“One thing more we have in mind is that to ensure that the evidence in FIR no. 219 (pertaining to mowing down of farmers) is recorded independently and in FIR no. 220 (lynching of political activists) it is also recorded independently and there is no overlapping or inter-mixing in the two sets of evidence, we are inclined to appoint a former judge of a different high court to monitor the investigation on day-to-day basis and then see how the separate charge sheets are eventually prepared,” the bench said.
“We, somehow or the other, are not confident and we do want any judicial commission appointed by your state government to continue. We propose to appoint a person like say from Punjab and Haryana High Court, Justice Ranjit Singh, who has an expertise in criminal law and army background...let an independent judge like Justice Rakesh Kumar Jain, again from the same HC, monitor everything,” it said.
Salve sought time for seeking instructions and the bench listed the matter for hearing on November 12.
When another senior advocate insisted on the CBI probe into the killing of political activist Shyam Sunder, the bench said, “CBI is not the solution to every problem. We are very careful and we do not want to give it to CBI. We want to protect the evidence which are available... Wait for the next date, we are trying to infuse some independence, impartiality and fairness in the investigation process.” At the outset, the bench expressed dissatisfaction over the progress in the SIT probe and asked about the delay in forensic reports on electronic evidence and non-seizure of mobile phones of the accused other than Mishra.
Eight mobile phones have been taken away for the investigation and forensic reports have been promised by November 15, Salve said.
“Only Ashish Mishra's phone has been seized what about the other accused. Have you not recovered any electronic equipment from them. You have taken away the phone of one of the accused and rest are of witnesses,” the bench said.
Some of the accused said that they did not have cell phones but the Call Data Records obtained, Salve said, adding that CCTV footage and other evidence established the presence of vehicles at the spot.
The bench then referred to “overlapping” evidence collected in two FIRs relating to mowing down of farmers and the subsequent lynching of political activists, apprehending that evidence in one case may be used to save the accused in the first matter involving vehicles.
“We are sorry to say that the prima facie it appears that one particular accused is sought to be given benefit by the getting these statements recorded.... Now it is being said that there are two FIRs and the evidence collected in one FIR will be used in another. What will happen then? You can appreciate better than us what will be the fate of the case,” it said.
Salve said some witnesses of the lynching case came to police for recording statements and started giving accounts of first case by giving “exculpatory” statements favouring the persons accused of mowing down farmers.
“We have not said combined investigation...they have to be investigated separately," the bench said.
To this, Salve said separate probe was being conducted.
"Investigation is separate but on affidavit, you are saying that there are overlapping and evidence of FIR no. 220 (lynching) will be used in FIR no. 219 (mowing down of farmers). In 220, the entire evidence is meant and is being secured or procured to protect the particular suspect,” the bench observed.
There are also people in the crowd who wanted to come forward and protect the accused of the first case and because of the very nature of the incident, police have been very careful to ensure that is no “mix up”, Salve said.
The bench said there are “three sets of murders” and one pertained to killing of farmers, the other is of a journalist and the third one is of political workers.
“All the matters may be investigated and taken to logical conclusion. Having said that, in the death of the political workers, the accused persons themselves have died. Now, they are referring to witnesses who are allegedly deposing in favour of the main accused in the case number 219,” it said.
The bench said it expected from the SIT that statements of the witnesses, who were coming forward to depose in farmers' case and collection will be an independent exercise from the evidence gathering of the lynching matter.
“What appears to us is that this SIT, somehow or the other, is unable to maintain an investigative distance between the FIR nos 219, 220 and the third case and they are recording the statements of whosoever is coming forward whether he has any material information or not and it is not that they are bound to record the statements of every one and anyone,” it said.
The bench said that in the trial, the evidence in one case may be used in other matter.
Salve referred to the confusion in the case saying initially, it was thought that the journalist was killed by the farmers' mob and later it was found that he was mowed down by a vehicle.
“That is the reason also that we are saying instead of all the confusion, let some independent judge monitor and file the charge sheet. There ends the matter,” the bench said.
Earlier, the bench had directed the Uttar Pradesh government to provide protection to witnesses under the Witness Protection Scheme, 2018 and to record the statements of other witnesses before the judicial magistrate under section 164 of the Code of Criminal Procedure (CrPC) and expedite the examination of digital evidence by experts.
The police has so far arrested 13 accused, including Union Minister of State for Home Ajay Mishra's son Ashish Mishra, in connection with the case.
The apex court was hearing a matter about the October 3 violence in Lakhimpur Kheri in which eight persons including four farmers were killed during a farmers' protest.
Four farmers were mowed down by an SUV in the convoy at Lakhimpur Kheri when a group agitating against the Centre's three new farm laws was holding a demonstration against the visit of Uttar Pradesh Deputy Chief Minister Keshav Prasad Maurya on October 3.
Two BJP workers and a driver were beaten to death allegedly by the angry protesters, and a local journalist was killed in the violence.
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