Counsel for the victims came to the Supreme Court with allegations he said would shock its conscience, that the officer now trying the Lakhimpur Kheri case had issued a non-bailable warrant against an eyewitness who was ill and had sought exemption, that witnesses were later given up by the prosecutor on the returnable date, and that a site plan had gone missing from the record. The Bench listened, but also cautioned that a trial court under pressure to expedite may take firm steps, and that superintendence over the judicial officer lay with the High Court, not with it. It sought a report in a sealed cover, asked for a senior prosecutor, and sent the plea to the Allahabad High Court Chief Justice. The allegations remain untested.
New Delhi: The Supreme Court, which is monitoring the trial in the Lakhimpur Kheri case, has sought a report in a sealed cover on allegations raised by the victims about the conduct of the judicial officer presiding over the trial, and has directed the State of Uttar Pradesh to assign a senior and experienced public prosecutor to the case.
A Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana heard an application moved by the victims, for whom Senior Advocate Prashant Bhushan appeared.
The allegations
Bhushan submitted that some very disturbing developments had taken place in the trial. He alleged that the officer who took over the case in April this year had, among his first steps, issued a non-bailable warrant against an eyewitness who could not appear because he was unwell and had submitted a medical slip and a doctor’s certificate seeking exemption. He alleged that the police thereafter approached and intimidated the witness’s family, and that the witness ultimately sought to be excused from appearing.
Bhushan further alleged that, on the returnable date, the newly appointed public prosecutor gave up a set of witnesses, and that a site plan had gone missing from the court record, with the prescribed procedure for such a situation not followed. Placing the officer’s conduct in other matters before the Court “for context”, he alleged that the officer had withdrawn a number of NDPS and SC/ST Act cases, meant for designated Special Judges, to his own court and granted bail, and that other cases at the fag end of trial had been withdrawn to his court and ended in acquittals. He submitted that an administrative inquiry had, as he understood it, been initiated against the officer by the High Court.
These are the allegations of the victims’ counsel. They have not been tested or established, and the judicial officer, who is not named in these proceedings, has not been heard on them.
The Court’s caution
The Bench did not accept the submissions at face value, and cautioned against reading the issuance of a warrant as, by itself, misconduct. The CJI observed that the Court had itself directed the trial to be expedited, and that where witnesses were not available a judicial officer might sometimes take such steps; he pointed to the pressure on an officer who knew the Supreme Court was monitoring the case.
“It becomes very difficult for a judicial officer to function if we start collecting instances where, in some case or another, he has granted bail. Let us see what has happened in this particular case.”
At the same time, the CJI recognised the counter-point that a prosecutor must be able to justify a witness’s absence. He observed that if a witness could not appear for a genuine reason such as illness, the public prosecutor would still have to explain the absence and inspire confidence that it was for a valid reason beyond the witness’s control, to which Bhushan responded that this was exactly what had been done, an application with an illness slip and a doctor’s certificate having been filed.
Justice Bagchi drew a distinction between the two limbs of the grievance. Issuing a warrant against an absent witness, he indicated, might be one thing; what appeared unusual was that, on the returnable date, the prosecutor came and gave up those witnesses. On the wider allegations about the officer’s conduct in other cases, however, the Bench was clear about the limits of its jurisdiction.
“We do not exercise superintendence over that judicial officer. That power lies with the concerned High Court,” Justice Bagchi observed, the CJI adding, “Take that issue before the High Court.”
A senior prosecutor, and a sealed-cover report
Bhushan submitted that the experienced public prosecutor earlier handling the case had been replaced by one with barely a few months’ experience, and urged that an experienced prosecutor be appointed, recalling that the Court had constituted a Special Investigation Team to ensure complete justice and was monitoring the matter for that reason. The CJI asked whether Uttar Pradesh had a regular cadre of public prosecutors and, on being told it did, directed that the senior-most public prosecutor in the district be assigned responsibility for the case.
Bhushan pressed that the judicial officer be changed, submitting that the incident had occurred in broad daylight, with farmers allegedly run over by a vehicle, and expressing apprehension, with reference to the missing site plan, that crucial evidence might ultimately be found wanting; if the officer continued, he submitted, there would be a gross miscarriage of justice.
The Court directed the State Government to take instructions and file an affidavit within two weeks indicating which senior and experienced public prosecutor could be assigned to the case. It directed that a copy of the application be placed before the Chief Justice of the Allahabad High Court for consideration, and that a report on the allegations raised in the application be submitted to the Supreme Court in a sealed cover before the next date of hearing.
Why it matters
The hearing captures the tension at the heart of a court-monitored trial. The Supreme Court has, in this very case, pressed for the trial to be expedited and for witnesses to be produced, and it was alive to the risk of second-guessing every firm step a trial judge takes under that pressure, hence its caution against treating a warrant, or a grant of bail in some other case, as proof of misconduct. Against that, the victims’ concern is that expedition should not come at the cost of a fair trial, that an ill witness with a medical certificate should not be met with a non-bailable warrant, and that witnesses should not be quietly given up on the returnable date.
The Court’s handling reflects a careful division of labour. Complaints about a judicial officer’s general conduct, the alleged withdrawal of NDPS and SC/ST Act cases to his court and consequent bail or acquittals, fall within the administrative superintendence of the High Court under the Constitution, not the monitoring jurisdiction the Supreme Court exercises over this particular trial, which is why the Bench routed those allegations to the Allahabad High Court’s Chief Justice. What the Supreme Court retained for itself, ensuring an experienced prosecutor and calling for a sealed-cover report, is directed at the integrity of the trial it is monitoring, without pronouncing on the officer, who is entitled to be heard before any adverse view is formed.
Nothing has been decided. The allegations against the judicial officer are untested and are now to be examined administratively and through the sealed-cover report; the accused in the underlying case, including Ashish Mishra, remain entitled to the presumption of innocence in a trial that is yet to conclude; and the Court’s immediate orders are procedural, a senior prosecutor, an affidavit within two weeks, a report before the next hearing, aimed at steadying a monitored trial rather than resolving the grave charges either side has made.
Case: Application in the Supreme Court’s monitoring of the Lakhimpur Kheri trial, arising from the October 2021 violence in which eight persons died
Bench: Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana, Supreme Court of India
Appearing: Senior Advocate Prashant Bhushan for the victims
Status: State to file an affidavit within two weeks naming a senior public prosecutor; application to be placed before the Chief Justice of the Allahabad High Court; report on the allegations sought in a sealed cover before the next hearing. Allegations untested; accused entitled to the presumption of innocence.