A three-judge Bench of CJI N.V. Ramana, Justice Suryakant, and Justice Hima Kohli has in the Lakhimpur Kheri incident set aside the bail granted to Ashish Mishra by the Allahabad High Court and remanded the matter back to the High Court for fresh consideration.

The Court also observed –

"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 of his legitimate right to seek enlargement on bail on relevant considerations."

The Bench while remanding the matter back to the High Court for fresh consideration held that the Apex Court is tasked with ensuring that neither the right of an accused to seek bail pending trial is expropriated, nor the victim or the State are denuded of their right to oppose such a prayer.

In this context, the Court held –

"In a situation like this, and with a view to balance the competing rights, this Court has been invariably remanding the matter(s) back to the High Court for a fresh consideration.13 We are also of the considered view that ends of justice would be adequately met by remitting this case to the High Court for a fresh adjudication of the bail application the Respondent­Accused, in a fair, impartial and dispassionate manner."

Senior Counsel Mr. Dushyant Dave appeared for the Appellants, Senior Counsel Mr. Ranjit Kumar appeared for Respondent No. 1 and Senior Counsel Mr. Mahesh Jethmalani appeared for Respondent No. 2 – The state of UP during the proceedings before the Supreme Court.

In this case, the Appellants had challenged the order of the Allahabad High Court which had enlarged Respondent No. 1 on bail. The Respondent was charged with the offences under Sections 147, 148, 149, 302, 307, 326 read with Sections 34 and 120­B of IPC as well as Sections, 3, 25, and 30 of the Arms Act.

In October 2021 violence broke out in the Lakhimpur Kheri district where four farmers were mowed down by an SUV when farmers were protesting against the farm laws, during Uttar Pradesh Deputy Chief Minister Keshav Prasad Maurya's visit to the area.

A PIL was also filed in the Supreme Court that had expressed serious concerns regarding the fairness of the investigation into incidents. The Apex Court on 17.11.2021 had reconstituted the SIT and new members were also inducted to carry out the investigation. Justice (Retd.) Rakesh Kumar Jain, a former Judge of the Punjab & Haryana High Court, was appointed to monitor the investigation.

A chargesheet was filed on 3.1.2022 by the reconstituted SIT, wherein the Respondent – Accused was found to be the main perpetrator of the events that took place.

Thereafter, the Respondent–Accused had moved an application for bail before the Allahabad High Court which was allowed, and bail was granted.

The relief was primarily on four grounds –

i) Firstly, the Court held that the primary allegation against the Respondent­Accused was of firing his weapon and causing gunshot injuries, but neither the inquest reports nor the injury reports revealed any firearm injury, therefore, the High Court opined that the present case was one of "accident by hitting with the vehicle".

ii) Secondly, the allegation that he provoked the driver of the car could not be sustained since the driver along with two others, who were in the vehicle, were killed by the protesters.

iii) Thirdly, it was noted that the Respondent­Accused had joined the investigation.

iv) Fourthly, the chargesheet had been filed.

Aggrieved, the Appellants – Victims approached the Supreme Court.

The three issues which were dealt with by the Court were –

  • Whether a 'victim' as defined under Section 2(wa) of the Code of CrPC is entitled to be heard at the stage of adjudication of bail application of an accused?
  • Whether the High Court overlooked the relevant considerations while passing the impugned order granting bail to the Respondent­Accused; and
  • If so, whether the High Court's order dated 10.02.2022 palpably illegal and warrants interference by this Court?

(A) Victim's right to be heard

The Court in this context held that until recently, criminal law was viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The victim – the de facto sufferer of crime who had no participation in the adjudicatory process was made to sit outside the Court as a mute spectator.

But with the recognition of criminal justice dispensation to prevent and punish crime had surreptitiously turned its back on the 'victim', the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve, the Court held.

Additionally, the Bench expressed its disappointment with the manner in which the High Court failed to acknowledge the rights of the victims.

The Court also noted that an application seeking a rehearing on the ground that the victims could not participate in the proceedings was also moved but it was not considered by the High Court while granting bail to the Respondent – Accused.

The Court held that the victims have been denied a fair and effective hearing at the time of granting bail to the Respondent – Accused.

(B) High Court overlooked relevant considerations

The Court in this context held that it was in complete agreement with the Senior Counsel for the Appellants that the High Court completely lost sight of relevant considerations while granting bail.

The Court observed –

"We find ourselves in agreement with the learned Senior Counsel for the Appellants that the High Court has completely lost sight of the principles enumerated above, which conventionally govern a Court's discretion when deciding the question whether or not to grant bail. 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."

The Court held that the High Court has taken into account several irrelevant considerations, while simultaneously ignoring judicial precedents and established parameters for the grant of bail.

"It has been ruled on numerous occasions that a F.I.R. cannot be treated as an encyclopaedia of events. While the allegations in the F.I.R., 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. Moreover, the observations on merits of a case when the trial has yet to commence, are likely to have an impact on the outcome of the trial proceedings," the Bench opined.

Thus, the Court held that the impugned order does not conform to the relevant considerations.

(C) Whether the interference is warranted by the Apex Court

The Court noted that as a result of the findings under questions (A) & (B), the impugned order of the High Court cannot be sustained and has to be set aside. Also, the bail bonds of the Respondent – Accused are canceled and the Court has directed the Respondent – Accused to surrender within a week.

The Court remanded the matter back to the High Court for fresh consideration of the Respondent's bail application to be decided on merits, in a fair, impartial, and dispassionate manner, and after giving an adequate opportunity of hearing to the victims as well.

In the light of these observations, the Court set aside the impugned order of the High Court granting bail to the Respondent – Accused and remitted the matter back to the High Court. The Respondent was directed to surrender within a week and be taken into custody and disposed of the appeal.

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