SC suggests monitoring of probe by ex-High Court judge

New Delhi: The Supreme Court on Monday suggested that a former judge of a different high court should monitor the Uttar Pradesh SIT probe on day-to-day basis in the Lakhimpur Kheri violence case to infuse independence, impartiality and fairness, saying the investigation was not going the way it expected.

Red flagging some of the issues pertaining to the SIT probe conducted so far, the top court said, prima facie it appears that one particular accused (in the farmers' mowing down case) is sought to be given benefit by securing or procuring evidence from witnesses in the subsequent case related to the lynching of political activists by the farmers' mob.

It was also very critical of the Special Investigation Team (SIT) of state police that seized the mobile of Ashish Mishra, one of the arrested 13 accused, and the rest of the phones belonged to the witnesses to the alleged mowing down of the farmers.

"We have seen the status report. There is nothing in the status report except to say that some more witnesses have been examined. We granted 10 days time. Laboratory reports have not come. No, no, no...it is not going the way we expected," said the Bench headed by Chief Justice N V Ramana.

Reiterating its earlier observation to rule out a CBI probe into the October 3 incident, the Bench, also comprising Justices Surya Kant and Hima Kohli, said it did not want to add any political overtones to the case and an independent retired judge should monitor the probe.

It asked senior advocate Harish Salve, appearing for Uttar Pradesh, to appraise it of the stand of the state government by November 12 on the suggestion that the SIT probe be monitored by a former judge of a different high court.

Making clear that the probe into two separate FIRs related to the mowing down of the farmers and the subsequent lynching of political activists respectively should be carried out separately, the Bench said it seemed that the evidence in the lynching case was being procured or secured to save the accused in the earlier case.

"One thing more we have in mind is that to ensure that the evidence in FIR no. 219 (pertaining to mowing down of farmers) is recorded independently and in FIR no. 220 (lynching of political activists) it is also recorded independently and there is no overlapping or inter-mixing in the two sets of evidence, we are inclined to appoint a former judge of a different high court to monitor the investigation on day-to-day basis and then see how the separate charge sheets are eventually prepared," the Bench added.

"We, somehow or the other, are not confident and we do not want any judicial commission appointed by your state government to continue. We propose to appoint a person like say from Punjab and Haryana High Court, Justice Ranjit Singh, who has expertise in criminal law and army background... let an independent judge like Justice Rakesh Kumar Jain, again from the same HC, monitor everything," it said.

Salve sought time for seeking instructions and the bench listed the matter for hearing on November 12.

"When another senior advocate insisted on the CBI probe into the killing of political activist Shyam Sunder, the bench said, CBI is not the solution to every problem. We are very careful and we do not want to give it to CBI. We want to protect the evidence which are available... Wait for the next date, we are trying to infuse some independence, impartiality and fairness in the investigation process."

At the outset, the Bench expressed dissatisfaction over the progress in the SIT probe and asked about the delay in forensic reports on electronic evidence and non-seizure of mobile phones of the accused other than Mishra. Eight mobile phones have been taken away for the investigation and forensic reports have been promised by November 15, Salve said.

Only Ashish Mishra's phone has been seized what about the other accused. Have you not recovered any electronic equipment from them. You have taken away the phone of one of the accused and rest are of witnesses, the Bench said.

Some of the accused said that they did not have cell phones but the Call Data Records obtained, Salve said, adding that CCTV footage and other evidence established the presence of vehicles at the spot.

The Bench then referred to overlapping evidence collected in two FIRs relating to mowing down of farmers and the subsequent lynching of political activists, apprehending that evidence in one case may be used to save the accused in the first matter involving vehicles.

"We are sorry to say that the prima facie it appears that one particular accused is sought to be given benefit by the getting these statements recorded.... Now it is being said that there are two FIRs and the evidence collected in one FIR will be used in another. What will happen then? You can appreciate better than us what will be the fate of the case," it said.

Salve said some witnesses of the lynching case came to police for recording statements and started giving accounts of first case by giving exculpatory statements favouring the persons accused of mowing down farmers.

"We have not said combined investigation... they have to be investigated separately," the Bench said.

To this, Salve said separate probe was being conducted.

"Investigation is separate but on affidavit, you are saying that there are overlapping and evidence of FIR no. 220 (lynching) will be used in FIR no. 219 (mowing down of farmers). In 220, the entire evidence is meant and is being secured or procured to protect the particular suspect," the Bench observed.

There are also people in the crowd who wanted to come forward and protect the accused of the first case and because of the very nature of the incident, police have been very careful to ensure that is no mix up , Salve said. The Bench said there are three sets of murders and one pertained to killing of farmers, the other is of a journalist and the third one is of political workers. All the matters may be investigated and taken to logical conclusion. Having said that, in the death of the political workers, the accused persons themselves have died. Now, they are referring to witnesses who are allegedly deposing in favour of the main accused in the case number 219, it said.

The Bench said it expected from the SIT that statements of the witnesses, who were coming forward to depose in farmers' case and collection will be an independent exercise from the evidence gathering of the lynching matter.