Thread by @barandbench

#SupremeCourt to continue hearing bail plea of Ashish Mishra, prime accused in the 2021 Lakhimpur Kheri violence in which 8 protestors were mowed down by a vehicle.

Matter before bench of Justices Surya Kant and JK Maheshwari.

#SupremeCourtofIndia #ashishmishra #law #bail

UP AAG Garima Parshad: So far as 220 FIRs, bail rejected of four accused by trial court and now pending before HC.

#SupremeCourtofIndia #ashishmishra #law #bail

UP AAG: 2 accused had died on the spot but named as accused

Justice Kant: so there are 8 accused including Ashish Mishra and all in custody. Other 4 are also in custody

Sr Adv Rohatgi: In the FIR under Section 219 we are in custody, there were cross FIRs

Sr Adv Mukul Rohatgi: My client has been in custody for more than a year, my bail refused and I am before you. there are about 208 witnesses against me and trial court said 5 years will be taken if no priority is given. In 220 fir which is a cross there are another 200 witnesses

Rohatgi: if 5 years is given approximate time for case

SC: In 219 FIR there are 200 witnesses and 220 FIR there are 198 witnesses

Rohatgi: 400 witnesses to be examined analogously... this could well become 7 to 8 years. Somebody can again challenge discharge etc

Rohatgi: on merits my case is very simple. Complainant Jasmeet Singh is not an eye witness and what he heard was hearsay. #SupremeCourtofIndia #ashishmishra #law #bail

Rohatgi: Jagjit Singh is the complainant and he is not an eye witness. I am surprised that when there are large number of people saying we ran over people mercilessly FIR registered on the version of a person who is not an eye witness? #SupremeCourtofIndia #ashishmishra

Rohagi: there were farmers protest for months and farmers were there to protest on the way to dangal site. Jagjit singh says 3 to 4 cars and in one of the cars, my client who is the son of union home minister is there and he ran over the car over farmers killing them

Rohatgi: In the mahindra thar vehicle there were 5 people and one of them was jaiswal who filed a cross fir and said that people used iron rods and pelted stones. driver was pulled out and killed. he says my client escaped from there

Justice Kant: there is a dispute with regard to the genuineness of the photos. this is a subject matter of trial

Rohatgi: prima facie it will show that car was attacked and my version is prima facie true and even jaiswal is there in the picture.

Rohatgi: call records show that ashish mishra was 4 kms way from the dangal site. this is not a case of murder but a case where crowd turned violent and the crowd killed some people. our people were killed and some farmers were killed. there are no gunshot wound and no fire

Rohatgi: My client got bail in the first instance. This is not a cock and bull story and there is truth in my story. I am not a criminal and there are no past records.

UP AAG: We are contesting the bail. we are opposing all the bails. in chargesheet 7 people say that they say ashish mishra running from the site

Justice Kant: then law will take its course. we are already in stage of bail. there are over 400 witnesses and both cases are to be tried together. WHich version is correct the trial court will decide. #ashishmishra

Justice Kant: State of UP has to show what is the opposition to grant bail at this stage

UP AAG: No photos has been shown to show that ashish mishra was indeed at dangal site

Justice Kant: we are taking prima facie view that he is involved and he is an accused and not innocent. Is it the State's case that he has attempted to destroy evidence etc?

UP AAG: That has not happened till now

SC: Then what is your opposition

UP AAG: it is a grave heinous crime which may impact the society adversely

SC: regarding grave and heinous there are two versions and we cannot comment on any of the versions

Justice Kant: Mr Dave please tell me and enlighten us

Sr Adv Dushyant Dave: it will send a terrible message if this person is granted bail. We dont know any other murder trial where trial is over before 5 years. Have a 5 judge bench and lay down that any accused in murder case be granted bail.

Dave: CJI Chandrachud also said that no bail in murder cases

SC: You cannot say Supreme Court is mute spectator and you cannot curtail powers of a constitutional court. You cannot SC has no power because something has not been done.

Dave: it was a cold blooded murder and there was a conspiracy, I can show that

Dave: if you run a car on the crowd and kill 5 people, will the crowd not react. it is not correct to say that FIR 220 and 219 is connected.. it is not

SC: but the event is the same.. we are not on natural or unnatural occurrence we are only on the genesis of the case

Dave: people were enraged that 5 were killed when a car ran over people in a 10 feet road. The minister threatened that he will do it

SC: Father is not an accused and he is still in power.

Dave: he should have been

Justice Kant: the principle laid down is correct that SC was not formed to hear bail matters. But if you were here in the court, we heard bail matters when HC cancelled regular bails where sentence is max 2 years, how can SC not entertain?

Dave: on reversal the conditions are different..

SC: we are giving an example. there were another woman yesterday

Dave: with respect these are not appropriate examples #ashishmishra

Justice JK Maheshwari: as you have been in practice, we also have been. bails in these cases were rejected by sessions court and then when it goes to the high court bails are rejected..

Dave: please refer it to 7 judges bench that and set aside constitution bench

Justice Maheshwari: this case is different

Dave: the only difference is that he is the son of a powerful man being represented by a powerful lawyer

Rohatgi; what is this? who is powerful? we are appearing everyday. can this be a condition to not grant me bail?

Justice Kant: Mr Dave, yesterday in a bail matter Mr Rohatgi could not appear and we said for us matter does not depend on the lawyer. a young new lawyer appeared and we granted bail. this was our first reaction ! #ashishmishra

SC: We are not saying that he does not face serious charges

Dave: it is cold blooded murder of 5 innocent citizens. they had a right to protest. the father of the accused kept saying that the protesters should be thrown off from the place. this is not a simple but extraordinary

SC: impact of rejecting bail by this court is that HC or sessions court will never grant bail.

Dave: rightly so!

SC: so till trial is completed we have serious apprehensions that they will not be granted bail.

Dave: Milord when journalists went from kerala to UP to cover the hathras case they are in custody since 3.5 years and even when bail granted by this court.

Justice Kant: if you say this then you will know that I made my views very clear in Najeeb's case

Dave: if 5 people are slaughtered consciously and with full planning, not rash and negligent driving though SC also held that such driving is also murder under 302. but this is not just a murder but a heinous crime. #ashishmishra

Dave: with my 44 years at the bar, I can assure the court that if Ashish Mishra is granted bail, this trial will never see the light of the day and we know how powerful people influence the trial

SC: It also depends on how order is made and what conditions are put

Senior Adv Dave reads Mahipal vs Rajesh judgment

#AshishMishra #lakhimpurkheri #supremecourt

Dave: the appellant lost two of his sons due to this incident. the heinousness and seriousness shows that just because accused spent some months in jail, the accused is granted bail. When HC has rejected bail, this court should not grant bail to ashish mishra
#lakhimpurkheri

Sr Adv Dave reads a judgment
Sr Adv Rohatgi cites an earlier para

Dave: why dont you submit in rejoinder
Rohatgi: to save time
Dave: cite it if its favourable to you
Rohatgi: no need to cite anything in bail plea
Dave: you are confident but we are not

#AshishMishra

Dave: FIR is no longer relevant. State was lukewarm in proceeding initially and this court ordered the SIT and it has found enough evidence to show that he is involved in this heinous crime and that is why cannot be granted bail.
#AshishMishra #lakhimpurkheri #supremecourt

Dave: the father of the accused had made statements such as the farmers should be thrown off from the site and this was before some days of lakhimpur incident. Mishra was also aspirant of a BJP ticket #AshishMishra #lakhimpurkheri #supremecourt

Sr Adv Dave reading judgments to show why Supreme Court should be slow in granting bail to someone whose bail plea was rejected by lower courts #AshishMishra #lakhimpurkheri #supremecourt

Dave: even today the father of the accused is not been arraigned as a co conspirator. can the accused be granted bail just because he spent a year in jail?

SC: it is about balancing rights of parties. there should not be indefinite incarceration

Dave: indefinite? it is 1 year

SC: This is a case which requires further monitoring by this court and we will do it. Then we will keep this case pending till the witnesses are examined. It will be unfair to order day to day trial also.

Dave: it is also said bail not at this stage and move court after few yrs

Dave: two courts have refused bail. this court has ruled no bail in heinous crimes

Justice Kant: in last 19 years, i always do not see the victims but also victims who cannot come to court. there are farmers also languishing in jail and how will they get relief if ashish mishra is also in jail! #ashishmishra #supremecourt #bail

Dave: i am dissapointed at this comparison by your lordships. these are all excuses.

Dave: Ashish mishra did not only want to kill but also run away after killing. there are eye witnesses. he has been stated as the main accused. 4 farmers and journalist was killed.

Justice Kant: you are correct to say that these are not cross FIRs and there are two cases

Dave: indeed. bail hearing cannot be conducted as a mini trial but after crpc amendment, the rights of victims on higher pedestal. #ashishmishra

Sr Adv Rohatgi in rejoinder: Please see the HC order. Completely wrong approach and it will show it was not a cold blooded murder and there was no pre-planning. It is a case at best for section 304 IPC. where is the intention? #ashishmishra

Rohatgi: the entire argument is an argument of revenge and that he is the accused and thus should be taught a lesson..

Justice Kant: question is evidence can be tampered because of the power..

Rohatgi: so bail will not be granted since my father is a minister?

Rohatgi: this has happened in the heat of moment and it will be decided. this is not some diabolical murder case. two chargesheets have been filed and 8 to 10 years will be taken to complete trial and which court will grant bail after this court rejects bail #ashishmishra

Dave: let there be a consistent law then. Delhi riots accused are languishing in jail still now milord

Rohatgi: I am not on other cases. you can do something for them then

#ashishmishra

Rohatgi: speedy trial is today a part of Article 21. this man is not a danger to the society. where is the reason today to say that i should be denied bail if conditions are violated then bail can be canceled.

#ashishmishra

as on March 31, 2021, there are 13,000 undertrial prisoners in murder cases in UP and Ashish Mishra is not an exception. release all of them: Sr Adv Dave

Rohatgi: this is an argument? then release all of them.

Dave: grateful milord. nothing else to argue.

Justice Kant: we reserve orders. We will pass the order. #ashishmishra #lakhimpurkheri #supremecourt