The Supreme Court on Monday, 8 November, expressed disappointment over the way the probe in the Lakhimpur Kheri case was proceeding and said that it would appoint a judge from a different state's high court to monitor the investigation till a charge sheet is filed. The apex court also rejected a request for a Central Bureau of Investigation (CBI) probe into the incident, saying that the probe agency was not the solution to everything. The investigation is not going the way it expected, the bench of SC judges said, expressing dissatisfaction at the fact that the forensic lab reports regarding the video evidence had not yet arrived and that the phone of only one accused had been seized so far. The Supreme Court raised questions over the lab reports and asked why they have not come in despite 10 days adjournment. Senior advocate Harish Salve, appearing for Uttar Pradesh government, informed the court that lab reports will come by November 15. The top court asked why only Union minister Ajay Misra’s son Ashish Misra’s phone was seized in connection with the case. “You have only mentioned accused Ashish’s phone has been seized. What about the others?,” the Supreme Court asked the UP government, adding that “It appears as though one accused is being given benefit.” To this, Harish Salve replied, “All CDRs (Call Detail Record ) have been collected. Where they (the accused) were at that time is known.” Lakhimpur Kheri incident resulted in the registration of two FIRs — FIR number 219 and FIR number 220. While FIR 219 was filed in connection with the mowing of farmers, 220 was to investigate the lynching incident that resulted in the death of three persons named as accused in FIR 219. While placing the status report of both cases before the bench, Salve informed the court that the police were finding it difficult to proceed with the lynching incident for two reasons. One, it was a tedious task to ascertain the identity of those who lynched the accused in FIR 219 as they are locals of the area. “Public appeal has been issued to find them,” he said. Further, Salve added, witnesses who turned up to record their versions in FIR 220 were giving exculpatory statements for the accused in FIR 219. “The police realised that those who came forward in FIR 220 were actually trying to protect the accused in the other FIR, and therefore, they were turned away,” explained the senior counsel. Salve assured the two probes would be conducted separately, and evidence gathered in
one FIR would have no bearing on the other. However, Justice Surya Kant spoke for the bench and said: “From the status report, it appears the evidence in both cases will overlap. You say the investigation is separate, but your report indicates otherwise. Also, the entire evidence is being secured to protect a particular suspect.” The court further said the statements of 56 witnesses annexed to the report showed all deposed mainly in favour of the main accused in FIR 219. On this Salve contended the state was bound to record statements of whoever comes forward. But Justice Surya Kant was of the view that the police should make their own effort to identify those who indulged in the brutal killing of farmers. Moreover, the judge added, the court had expected the SIT to carry out an independent exercise as far as FIR number 219 is concerned.
“What appears to us is the SIT is unable to maintain an investigative distance between the cases. Whosoever is coming forward, his or her statement is being recorded. At the end it will be oral evidence in one case versus the other,” remarked the judge. After a brief discussion amongst themselves, the judges went on to suggest the setting up of an independent committee, headed by a retired judge of Punjab and Haryana HC. “This is to ensure the evidence does not overlap,” the bench told Salve. As the senior advocate sought some time to think over the court’s proposal, he did admit the mix-up that had happened between the events.