On Lakhimpur Kheri deaths, SC tells UP: unsure of your probe, let ex-judge of another HC monitor

The bench headed by Chief Justice of India N V Ramana expressed dissatisfaction over “intermixing” of evidence by UP investigators probing the cases involving the death of farmers allegedly overrun by a convoy of three vehicles, including one owned by Minister of State for Home Ajay Mishra, and the other deaths including that of a driver and two BJP workers in the violence that followed on October 3.

“What appears to us is that this SIT (Special Investigation Team), somehow or the other, is unable to maintain an investigative distance between the cases,” he said. “If this kind of process continues, it will be a case of weighing the oral evidence in one case against the other. To ensure that evidence… are recorded independently and there is no overlapping and there is no intermixing of the evidence, we are trying to appoint a retired judge from a different High Court to monitor the investigation on a day-to-day basis… We are not confident… We don’t want the judicial commission appointed by your state to continue,” Justice Surya Kant, one of the three judges on the bench, said.

People take a look at the overturned SUV which destroyed in violence during farmers’ protest, at Tikonia area of Lakhimpur Kheri district. (PTI Photo)

The bench, also comprising Justice Hima Kohli, suggested the names of Justice Ranjit Singh and Justice Rakesh Kumar Jain, retired judges of the Punjab and Haryana High Court, and said “let a former judge monitor everything till the chargesheets are prepared and filed”.

The bench’s suggestion came after it said that evidence of some of the witnesses in the case relating to the death of the driver and the two BJP workers were overlapping with the case related to the death of four farmers. It raised doubts whether this was being done to benefit a “particular accused”.

“It appears that one particular accused is seeking to be given benefit by overlapping the two FIRs,” Justice Surya Kant said without taking names.

Appearing for the UP government, Senior Advocate Harish Salve said he will take instructions on the suggestion. “That will be done, my lord. I can take instructions. Government can appoint,” Salve told the bench.

Uttar Pradesh had appointed a retired judge of the Allahabad High Court, Justice Pradeep Kumar Srivastava, as a one-man judicial commission to probe the October 3 incidents.

On October 3, a convoy of three vehicles, including one owned by Union Minister of State for Home Ajay Mishra, ploughed into a group of protesting farmers. In the violence that followed, two BJP workers and the driver of one of the vehicles were killed. A journalist was also among those killed. In the two cases, UP police arrested 17 persons, including the minister’s son Ashish Mishra.

Maintaining that the two investigations are separate, Salve said the mix-up may have happened because some of the witnesses who had come forward to give statements in the case of death of the driver and BJP workers were also making statements about the case involving the death of the farmers. He said when witnesses come forward saying they want their testimony to be recorded, police cannot say no.

He said the confusion may have occurred also because it was initially suspected that the journalist had died in the violence that followed the crash, but it later emerged that he too was allegedly crushed by the vehicles. Therefore, the investigation into his death, Salve said, “had moved to the FIR registered in connection with the death of the farmers”.

The bench said that’s why it wanted an independent judge to monitor till the filing of the chargesheet.

Justice Surya Kant said the cause of death of the journalist was “entirely different… impression sought to be given was this journalist was beaten to death”.

“They were all crushed by the car,” Salve said, adding “the trouble is” there were thousands of people at the scene, and there are political overtones for whatever is happening.

“We don’t want to have any political overtones,” the CJI said, justifying the bench suggestion for a retired High Court judge to monitor the probe. “Find out from your government,” he told Salve.

At the outset, the CJI told the senior counsel that there is “nothing in the status report except saying some more witnesses examined” and that the “lab reports (have) not come yet”.

Salve said it is “beyond our control… They have said they will give by November 15”.

The bench then questioned him on the seizure of phones of the accused and wondered why only the phone of key accused Ashish Mishra had been seized. “What about the mobile phones of other accused,” Justice Kohli asked.

“Some of the accused have said they don’t have a cell phone. But their call data records have all been obtained,” Salve said.

Justice Kohli asked if he was trying to say that none of the other accused had phones on them. Salve said they had thrown away their phones and claimed that they didn’t have any, but the police obtained the CDRs. He said CCTV visuals of the incident were awaiting certification.

Justice Surya Kant said the collection of evidence in the FIR related to the death of farmers has to be an “independent exercise”.

Senior Advocate Arun Bharadwaj, appearing for Ruby Devi, wife of slain BJP worker Shyam Sunder, expressed lack of confidence in the probe and urged that his case be handed over to CBI. Salve said the man “came out (of the vehicle). Farmers hit him. Police tried to protect him. Police were trying to save these people who were thrashed by the farmers”.

The bench told Bharadwaj “CBI is not the solution of everything” and he can submit his evidence before the judge proposed to be appointed to monitor the probe.