The Supreme Court on Wednesday came down hard on the Uttar Pradesh government for its ongoing probe into the sensational Lakhimpur Kheri case, saying it thought police are 'dragging feet' and they are required to 'dispel' that impression and ensure recording of statements of witnesses before magistrates and their protection.
“We think you are dragging your feet, please dispel that impression,” observed the top court, adding that the probe should not be an 'unending story' and red-flagged the issue of non-recording of statements of nearly 40 prosecution witnesses, of the total 44, before judicial magistrates under section 164 of the CrPC.
“Please ask them to immediately take steps to record section 164 statements. That is the most important thing...protection to the victims as well as the witnesses,” said the bench comprising Chief Justice N V Ramana and justices Surya Kant and Hima Kohli.
Statements under Section 164 of the Code of Criminal Procedure are recorded before a judicial magistrate and they have evidentiary value. The apex court, hearing a matter about the October 3 violence in Lakhimpur Kheri in which eight persons including four farmers were killed during a farmers' protest, was told by the state government that statements of four out of the 44 witnesses have been recorded by the judicial magistrate.
Ten people, including Union minister of state for home Ajay Mishra's son Ashish Mishra, have been arrested so far in connection with the case.
The bench raised the issue of filing of status report on the day of hearing with the CJI observing, “we waited till 1 am last night for any filing. But we received nothing.”
Senior advocate Harish Salve, who appeared along with advocate Garima Prasad for the state government, said the status report has been filed in a sealed cover on Wednesday because of the impression that it was for the perusal of the court only.
“No that was not required and we have just received it now...we never said anything about sealed covers,” the bench said while declining the request to hear the matter on Friday. It listed the next hearing on October 26.
It said, “Mr Salve, you said that you (police) have examined 44 witnesses and out of them, four witnesses' statements have been recorded under section 164 (before a judicial magistrate) of CrPC. Why have you not recorded the statements of other witnesses under 164.”
“It is going on. The process is going on my lordships,” Salve said, adding that earlier the concern was that it appeared that police were going “little soft on the accused and now they all have been arrested and now everybody is in jail.”
He said there were two crimes and in the first one, the accused drove into the farmers and in the second FIR, three of the accused, who drove into the farmers, were lynched.
In the lynching case, the probe is 'little difficult' as who did what is difficult to ascertain given the big crowd of farmers, he said.
The bench said it was asking questions about the first FIR and sought to know the number of accused and their status in the probe.
“Today, how many of them are in judicial custody and how many of them are in police custody... Because, until or unless they are interrogated you may not get any information,” the bench asked.
“Total 10 accused have been arrested and out of them, four are in police custody and the remaining six have been sent to jail in judicial custody,” the lawyer said.
What happened to the remaining six accused, the bench asked adding, “Did you apply to seek their police custody or they were straightway sent to judicial custody”.
“They were in police custody and as you did not seek their police remand so they were sent to judicial custody. What is the situation in this case? We just want the facts to be clarified. There are situations where the police demand the custody of the accused and the court declines and send the accused to judicial custody and there are cases in which police says that the accused is no longer required in police custody and therefore, the court has no choice but to send the accused to police custody. What is the situation in this case,” it said.
The state counsel said that the accused were interrogated in the police custody for three days before being sent to jail.
“I am given to understand that the statements have been recorded and a lot of videos have been received and they all have been sent to forensic labs and once they (reports) come, it will be pretty clear. They may not be needed for interrogation here,” Salve said.
“Mr Salve, this should not be the unending story,” the bench said and raised the issue of witness protection saying that the SIT is best suited 'to identify those who are the most vulnerable witnesses or who can be browbeaten tomorrow...influenced.'
On the recording of statements, Salve said they were being recorded and would begin as the courts have reopened after vacation.
“Criminal courts closed for Dussehra vacations,” the bench said.
On being told that police reconstructed the crime scene, it said, it was something different and the recording of statements under section 164 was different and such statements have the 'evidentiary value' unlike the statements given to police as they 'will not lead anywhere.'
“I have seen the areas of concern of my lords and please have it next week. Your lordship will see where we are,” Salve said, adding that the state will “make a proper witness protection programme in this case and present them before the court.”
