Nearly five days after the murder of several farmers at Lakhimpur Kheri after a BJP leader's convoy ran over them (and further deaths in retaliatory violence) the Uttar Pradesh Police have claimed that they are finally sending a summons to the main accused in the FIR, Ashish Misra, son of Union Minister of State Ajay Misra Teni.
"Two people are being questioned. They've confirmed the role of three others who are dead. Technically, they have also been accounted for. These people are giving a lot of information. We are sending summon to the main accused (Ashish Misra) for questioning,"Lucknow Inspector General Laxmi Singh to ANI on Thursday, 7 October
Even though an FIR had been registered on the day of the incident (Sunday, 3 October), the police had not even issued a summons to any person (let alone arrested anyone) in connection with the case till Thursday, 7 October.
Criminal law experts tell The Quint that this belated decision to call in the accused for questioning is highly irregular, and raises serious questions about the investigation into the incident.
WHY WAS MISRA NOT SUMMONED FOR QUESTIONING TILL NOW?
Senior advocate Rebecca John, one of the country's best-known criminal law experts, is shocked that it has taken the police this long to get Misra involved.
"There is no justification for this delay in asking him to join the investigation," she says, noting that when the police are investigating a murder case, the police normally don't just question, but arrest someone who is named in the FIR and against whom there is eyewitness testimony.
"If there is unimpeachable evidence that he was not there, then there is obviously no need to arrest him," John explains. "But how do you not summon him to get his version or explanation, or indeed, confirm there is some unimpeachable evidence that puts him in the clear."
Senior advocate Sidharth Luthra, another veteran criminal law practitioner, notes that just because a person is named in an FIR doesn't mean they have to be arrested. "But at the same time, the fact that you're named is a clear indication that you should be questioned at least. Even if you have to show your innocence, you have to be questioned for that," he says.
The police have the power to summon any person – let alone just an accused – who "appears to be acquainted with the facts and circumstances" of a case they are investigating, according to Section 160 of the Code of Criminal Procedure. This is one of the most basic steps taken to investigate a criminal case.
While he did not go into the specifics of the case against Misra, Luthra posits that there are three situations in which the police will not call in a person against whom the FIR includes specific allegations:
If the person is not available.
If there is a doubt regarding the nature of the allegation.
If the police don't have material against the individual.
None of those situations appear to apply to the Lakhimpur Kheri case and Misra.
Misra was giving statements to the media the day after the incident, so it was not as though he was not available then. Despite his claims that he was not there at the scene, there is no incontrovertible proof currently available which shows that he was present elsewhere at the time of the incident when his car (the ownership of which he has not denied) ran over several peacefully protesting farmers.
And there is firm eyewitness testimony that he was in fact present at the scene, as recorded in the FIR itself, so there is no question of there not being material against him. Indeed, as Rebecca John points out:
"Eyewitness testimony isn't obviously perfect, but it is important, especially at this time of an investigation. Courts are very hesitant to disregard eyewitness testimony at this stage. Since that was there, it was absolutely essential to interrogate Misra, and based on that interrogation, proceed further."
It may well be that Misra is able to prove that he was not present at the scene, and that he had nothing to do with the tragic events of 3 October. However, by delaying the interrogation of any accused beyond the first 24 hours, not just Misra, the police have seriously compromised the investigation.
"The best material in a murder case is collected in the first 24 hours," John argues. "I don't think it is anyone's case, even that of the accused person, that people were not killed in this incident. With any delay beyond that, you are ensuring that your best material, which you could have collected in the first 24 hours, could be disappeared, compromised or corrupted."
The statements given by the other accused or witnesses now are all liable to be questioned, as there has been sufficient time for them to be threatened or induced to change their version of events, and material evidence could by now have been deleted from their phones.
SHOULD ASHISH MISRA BE ARRESTED NOW?
At this stage, there is still no mandatory requirement under the law to arrest Misra or indeed any of the other accused.
Whether or not a person – even someone named in an FIR – is to be arrested, is dependent on the following factors, Luthra explains:
The nature of the offence.
The nature of the allegation against a person.
The ability of the person to flee.
The ability of the person to tamper with justice, including by threatening witnesses.
"In cases involving death, the normal practice is to arrest those accused," he says. "But this is not a rule or a legal requirement."
However, if the police do not wish to arrest an accused in a case like this, they have to have some good reasons not to do so.
"The power to arrest does not ipso facto mean there's an arrest. But there are certain parameters for why you arrest. And the existence of those parameters determines whether an arrest does or does not take place. In this case, the police will have to explain what is it that has prompted them not to call the person in for questioning, let alone not arrest him."Senior advocate Sidharth Luthra
Rebecca John agrees that there is no absolute requirement to arrest Misra at this point, but does not see any reason for the police not to do so – going by the arguments used by state agencies in cases like this.
"Look at any number of bail applications, anticipatory bail applications and how they're contested," she suggests. "The standard argument of state agencies is that it is only post arrest and custodial interrogation that they can unearth the truth."
Section 41 of the Code of Criminal Procedure gives the police the power to arrest people without a warrant on the basis of a 'reasonable suspicion' that someone has been involved in the commission of a cognizable offence. They can exercise this power as long as they have a 'reasonable complaint' against a person or some 'credible information' against them.
Even if the police decide not to keep the person in custody, an arrest and a brief period of custodial interrogation is standard practice in murder cases. Indeed, if we look at the way the UP Police or indeed any other police forces function, arrests are routinely made for serious offences even where a person isn't named in an FIR.
John observes that there are certainly questions to be asked when we look at the UP Police's hesitancy to arrest the accused in this case, in light of the process that is normally followed (even if one doesn't want to insist on unnecessary jail time):
"There has to be some consistency. You can't follow one set of investigative protocols for ordinary citizens and another set for people in power.
Even the issue of the summons at this time is no guarantee that the investigation will be fair at this point. The summons was issued only after the Supreme Court asked for a status report on the investigation by Friday, 8 October, including who has been arrested so far.
It remains to be seen if the status report will include an explanation for the delay, and if the court or the UP government-appointed Commission of Enquiry, will take any action for these unjustifiable lapses.
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