New Delhi: On 10 February 2022, Ashish Mishra—son of union minister of state for home Ajay Mishra ‘Teni’ and prime accused in the violence that claimed eight lives on 3 October 2021 in the northwestern Uttar Pradesh (UP) district of Lakhimpur Kheri—was released on bail by the Lucknow bench of the Allahabad High Court.
Before Ashish Mishra’s release by the high court, lower courts had rejected two previous bail applications in the incident in which four farmers, a journalist, the driver and two Bharatiya Janata Party (BJP) workers died,.
The UP government of BJP chief minister Yogi Adityanath did not challenge the bail order before the Supreme Court, even though a police special investigation team (SIT) probing the incident found that the murder of the protestors, including four farmers, was a “pre-planned conspiracy” and not “negligence or callousness”.
The government move contrasts with a spate of cases where the state strongly opposed bail pleas (here, here and here) of activists, students, lawyers and journalists, even when there was little or no evidence against them, particularly in cases involving those protesting the Citizenship Amendment Act (CAA) 2019.
Our examination of Ashish Mishra’s case papers explains how: the Allahabad High Court granted bail even though conditions for it were not met; and why even though the case fit requirements to challenge bail—in particular, compared to other cases where bail was opposed—the UP government did not.
Investigation Aimed At Protecting ‘One Main Accused’: SC
The UP government’s selective inaction appeared to confirm the Supreme Court’s 8 November 2021 observations that the investigation into the Lakhimpur Kheri incident was aimed at protecting “one main accused”.
It was not the only time the Supreme Court cast doubts on the State’s impartiality and the lack of involvement in a trial that, by legal convention, required it.
On 17 November 2021, the apex court criticised the UP police for the “slow pace, manner and outcome of the investigation conducted so far”. The UP police claimed that they did not find time to investigate the violence of 3 October because they were busy cremating those who died that day.
The Supreme Court bench of Chief Justice N V Ramanna and Justices Surya Kant and Hima Kohli advised the UP government to "dispel the feeling that you are dragging your feet".
There is no evidence the State has addressed these concerns.
On 16 March 2022, the Supreme Court issued notice to Mishra and the UP government in a petition moved by the families of those who were killed by Ashish Mishra’s SUV, and directed the state, yet again, to “protect Lakhimpur witnesses”.
Prosecute Dissent, Ignore Bail For Murder Accused
When it came to activists Sadaf Jafar, Deepak Kabir and Rihai Manch founder Mohammed Shoaib, languishing for months in jail over their alleged involvement in the anti-CAA protests, the State made every effort to keep them in jail and moved applications seeking cancellation of their bail before the court.
The three activists were among 57 people whose photographs and addresses were put on hoardings across Lucknow in lieu of alleged vandalism and arson linked to December 2019 protests.
If the accused’s bail was not cancelled, they would “continue to participate in illegal protests and dharna and enkindle (sic) the protesters, which could lead to damage to public life”, the UP police claimed. Despite the absence of proof, the state government opposed the bail pleas of those arrested in connection with anti-CAA protests before various courts.
In one instance, a sessions court in Rampur granted bail to 15 anti-CAA protestors. In another, a Bijnor court granted bail to 48 out 84 people accused of rioting, arson and attempt to murder in connection with the anti-CAA protests.
Both courts rebuked the UP police for a shoddy investigation related to anti-CAA protests on 20 December 2019, noting that the police could produce no evidence to support their allegations. Yet, the bail applications of the accused were challenged by the prosecution.
Mishra’s bail application encountered no such resistance.
Bail To Meet Dying Mother: ‘Abuse Of Law’
In another case, the State even accused a journalist of lying about his mother's imminent death when he sought bail on humanitarian grounds.
When Siddique Kappan—a Kerala journalist who was arrested by the UP police on his way to Hathras to report the gang-rape of a Dalit woman— moved the Supreme Court seeking bail to meet his ailing mother, solicitor general Tushar Mehta, appearing for the UP government, said that his mother’s condition was “not as serious as was being projected”.
"The ground which is raised is tempting for even me to agree. Let me reply by tomorrow," Mehta said. “This is an emotional appeal and abuse of the process of law.”
"This is not a question of temptation... It is about seeing his mother for the last time... We are willing to commit the error... If she is going to die, what will you do? We are allowing this on humanitarian grounds," then chief justice S A Bobde remarked.
On another occasion, the UP government went to great lengths to oppose the bail plea of journalist Prashant Kanojia, arrested in June 2019 over a tweet and Facebook post against UP chief minister Yogi Adityanath.
The State claimed before the court that Kanojia’s Twitter feed had “inflammatory content” against God and religion. They argued Kanojia also tweeted about politicians and other public personalities. How this was a crime was not evident.
A Supreme Court bench of Justices Indira Banerjee and Ajay Rastogi asked the state government: "A citizen's right to liberty has been infringed. We have gone through the records. Opinions may vary. This sort of thing should not have been published. But why arrest?"
"Under what provision has he been arrested for this?" the court asked, granting immediate bail to Kanojia.
Justice Rastogi said: “He’s remanded for 11 days… Have you ever come across a 11-day remand?”
Justice Banerjee added: “Is this some murder charge?”
Selective Inaction Not Unique To UP
This selective inaction is not unique to UP of course.
In June 2021, the Delhi police filed a special leave petition before the Supreme Court to contest a Delhi High Court order granting bail to three student activists in connection with the 2020 riots in northeast Delhi.
It has been over six months since Umar Khalid filed his bail application before a Delhi court, but the hearings have continued as the Delhi police strongly oppose his release.
In activist Sudha Bhardwaj’s case, the National Investigation Agency sought cancellation of her bail, but the Supreme Court junked their appeal after she spent three years in prison. Stan Swamy, 84, died in custody waiting for bail.
Speaking of Mishra’s case, Yogi Adityanath had said, "No action will be taken under pressure.. We will not arrest anyone on allegations”. Yet in many cases, his government proceeded to make arrests based on mere conjectures.
Mishra was arrested, however, on 9 October 2021, five days after the FIR was registered against him.
Fundamental Pre-requisites of Bail Overlooked
It is the mandate of section 437(1)(i) of the Code of Criminal Procedure (CrPC), 1973, that in cases where a person is accused of a crime punishable with life imprisonment, “such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life”.
Section 437(4) further states that “an officer or a Court releasing any person on bail under sub-section (1).. shall record in writing his or its reasons or special seasons for doing so”.
It is also settled law (here, here and here) that at the stage of consideration of bail, a court is required to consider the nature and severity of offences, nature of the evidence collected, the character and behaviour of the accused, chances of the accused absconding and being available during trial, possibility of the accused tampering with evidence and witnesses, and the larger interest of the people and the state. On February 10, 2022, the Allahabad High Court found that Mishra satisfied all these conditions of bail and ordered his release. The state conceded. Our analysis finds five reasons why this should not have been so.
5 Reasons Why Mishra Should Not Have Made Bail
One: It is a cardinal principle of criminal jurisprudence that a court has to evaluate the seriousness of an alleged offence while granting bail to an accused. In this case, Mishra is accused of mowing down farmers while riding in his car and allegedly escaping the scene while firing at protestors.
The nature and magnitude of the offences in this case, however, were overlooked.
Two: In noting that “no firearm injury has been found on the body of the deceased or any other person”, the Allahabad high court overlooked the fact that the police found two empty cartridges at the scene of violence, indicating that someone had indeed opened fire.
A November 2021 forensic report also confirmed that the bullets were fired from the licensed guns of Ashish Mishra and his aide Ankit Das, also present, although forensic specialists could not specifically say if these guns were fired on 3 October (the day of the Lakhimpur Kheri violence).
Mishra has not been able to prove that he was not at the crime scene even despite his mobile tower location placing him closer to the spot and claims that he was at a dangal (wrestling) event where nearly 2,000-3,000 people were present.
Three: Although criminal antecedents of the accused were not the sole and decisive factor to be considered while deciding a bail application, they ought to be considered as per the legislative mandate of the CrPC as well as Allahabad High Court’s own order of 14 December, 2020 in Uday Pratap @ Dau vs. State of Uttar Pradesh.
Though the prosecution claimed there were two criminal cases against Mishra, the bail order has no analysis of his alleged criminal antecedents, only noting a submission by Mishra’s counsel, Gopal Chaturvedi, that Mishra was acquitted in one previous criminal case and another he had “no knowledge” of.
Four: On 8 October 2021, when the police first asked Ashish Mishra to appear for questioning, he did not. Several accounts (here and here) claimed Mishra was absconding, with several UP police teams looking for him.
In stating that “during the course of investigation, notice was issued to the applicant and he appeared before the Investigating Officer”, the order overlooked an undisputed fact—that Ashish Mishra failed to appear before the police when first summoned and did not cooperate with the police during investigation.
Five: On 26 October 2021, the apex court specifically directed the UP government to grant protection to the witnesses in the Lakhimpur Kheri incident.
On 10 March 2022, unknown attackers beat one of the prime witnesses and reportedly said, “now that BJP has won the election”, they would “take care of him”. The Supreme Court on March 16, 2022, directed the state, yet again, to “see that witnesses are protected”.
The bail order fails to acknowledge that Mishra’s father, Teni, wields significant power over the UP police and state officials, ignoring the risk of tampering with evidence and influencing witnesses.
Dubious Standards & Leniencies Accorded by the State
In a 1965 case called Thakur Ram vs State of Bihar, the Supreme Court held that “barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book”.
In Mishra’s case, the UP government has conceded to the high court’s verdict, even as basic conditions of bail remained unsatisfied.
That bail is the rule and jail an exception is a well-settled principle of criminal law, but the state chooses to apply a differential standard based on who it is prosecuting.
The farmers have now been left alone to fight their battles before the Supreme Court.
Two petitions—one filed by lawyers C S Panda and Shiv Kumar Tripathi, and the other filed on behalf of the families of those who were killed on 3 October 2021 through lawyer Prashant Bhushan—have been moved before the Supreme Court against the order of the Allahabad High Court.
In February 2022, the bail pleas of all four farmers implicated in a counter FIR were rejected by the trial court. Mishra continues to be out on bail.
(Mani Chander is a lawyer based in New Delhi.)