Bulandshahr mob-lynching case: SC stays bail granted by Allahabad HC to prime accused Yogeshraj

Allahabad HC Image Courtesy:indianexpress.com

On Monday, January 3, the Supreme Court stayed the bail granted by the Allahabad High Court to Yogeshraj, the main accused of the Bulandshahr mob-violence case, and ordered him to surrender within seven days. The violence had led to the death of a student named Sumit and police inspector Subodh Kumar Singh, who incidentally was also the investigating officer in the Akhlaq lynching case.

Yogeshraj had filed an affidavit before the Court that no conditions of the bail had been flouted by him, in response to which the petitioner’s lawyer argued how after his release, another FIR was filed against Yogeshraj alleging he had tried to kill a family who had not cast votes in his favour in the Panchayat elections that he had won.

Staying his bail, the SC observed in its order, “The matter is quite serious where under the pretext of the cow slaughter, a police officer has been lynched. Prima facie, it is a case of people taking law into their own hand. We are of the view that Yogeshraj should be asked to surrender within a period of seven days from today and thus to that extent, the impugned orders granting him bail are stayed.”

Moreover, since charges had not been framed against the accused by the trial court despite the passage of three years since the incident, the SC asked for a report from the trial court as to how much time was needed to do the same, and ordered that the testimony of individual witnesses be recorded. The matter was adjourned for three weeks.

The complete SC order may be read here:

Brief background of the case

On December 3, 2018, bovine remains were found hung in a field in Bulandshahr’s Mahav village that is located around 40-45 kms away from where an Ijtema (Muslim spiritual conference) was being held. Following this, members of Hindutva groups such as Bajrang Dal, Hindu Yuva Vahini and Shiv Sena blocked the Bulandshahr-Garhmukteshwar State Highway to protest the alleged cow slaughter. This was incidentally the same highway that the Muslim devotees were going to take for their return.

The Hindutva groups then proceeded on tractors with the bovine carcasses to the nearest police chowki (sub-station) in Chingravathi village to report the alleged incident of cow slaughter. A larger crowd of approximately 100 men on tractors had gathered by 11 A.M, and police personnel from the main police station in nearby Shyana village arrived at the chowki to control the volatile situation.

As per Bulandshahr District Magistrate (DM) Anuj Jha, “Police officers from Syana station began questioning these people to file an FIR. During that process, certain anti-social elements created a ruckus and light force had to be used to contain them. Matters escalated and people began pelting stones.”

Inspector Subodh Kumar Singh, reportedly tried to control mob violence in the village, but was killed. His autopsy report confirmed that he was shot in the head. Sumit a 20-year-old student, who was reportedly a BJP activist, also lost his life in retaliatory firing by the police.

Measures taken by the Police thereafter

The UP police had denied any communal angle or link of the conclusion of the Ijtema to this incident. Two people were arrested and an FIR was filed under 17 sections including murder, rioting and assault against 27 named accused and 50-60 unnamed persons. A Special Investigation Team (SIT) was formed to look into the reason behind the violence and why the inspector was left alone.

Arrests with regards to cow-slaughter

On December 5, four Muslim men – Sarfuddin, Sijid Ali, Banne Khan and Asif – were arrested in connection with the alleged cow-slaughter on the basis of the complaint by Yogeshraj. But when no evidence was found against them, they were released after 17 days of custody. However, the wrongful arrests having pushed their families into debt as they had to borrow money from relatives and neighbours to pay for legal fees and frequent trips to the jail, court and police station. The SIT thereafter arrested three more Muslim men, not named in the original FIR and not having any relation with the mob-lynching incident.

Sensing a planned conspiracy

Here’s why Inspector Subodh Singh’s murder may have been planned as part of a wider conspiracy:

Many Hindutva outfits had been spreading hate against organizer of the Ijtema using social media.
The incident took place on last day of Tablighi Jamaat, which was reported to be a peaceful event.
The cow carcass was not there the previous day and it displayed in a peculiar manner. According to Tehsildar Rajkumar Bhaskar, the head and skin of the cow was hung like clothes on a hanger, in a sugarcane field and the same was visible from far away. According to him, if someone would have indulged cow slaughter, they would have not put it out for display, especially knowing the situation in the state.
It is also reported that BJP Yuva Morcha president of Sayana, Bulandshahr invited Hindutva volunteers to gather at 6:30 A.M at a RSS shakha at Indira Gandhi College in Sayana on Monday, the day the violence erupted.
The representatives of BJP and other Hindutva outfits had sent letter dated September 9, 2018, to Bulandshahr MLA Dr. Bhola Singh and SSP against Inspector Subodh Singh accusing him of creating hurdles in Hindu religious events and stating that people are angry.
Inspector Subodh Singh was probing the previous Akhlaq lynching case, which was also related to alleged cow-slaughter.
Rioters had come fully armed with iron rods, spears and wooden sticks and they specifically targeted Inspector Subodh Singh, as reported by the Daily Pioneer. The rioters also allegedly prevented the rescue team from taking the inspector to hospital, he died by the time he reached as he was shot in the head.

Absconding accused plead innocence via videos released on social media

Yogeshraj and co-accused Shikhar Agarwal had absconded following the violence, and while on the run from authorities, they had released videos pleading their innocence and changing their statements given to the police and on social media. The main accused, Yogeshraj, a member of VHP and district convenor of the Bajrang Dal, according to the News18 report, claimed that he was not present at the site of violence and he had nothing to do with the protests. He also alleged that the UP police were trying to portray him in a bad light. However, there have been varied inconsistencies in his claims in the video and in the statement given to the Bulandshahr police.

In the video released by Shikhar Agrawal, he blamed officer Subodh Kumar Singh for the violence, further stating that they were stopped by the officer from taking cow carcasses to the police post in order to file a complaint about the alleged slaughter. He also alleged that the officer threatened to kill him and others, which he says was later conveyed to Chandra Maurya, a senior police officer.Agarwal also accused Singh of being corrupt and “siding with the Muslim community” in order to perpetuate cow slaughter.

Blaming the victim

Describing work of Yogeshraj as noble and eye-opening Bulandshahr BJP MP, Bholaram reportedly said that expressing support for stricter cow slaughter laws is not a crime. Meanwhile, Meerut BJP MP Rajendra Agrawal and former RSS pracharak insisted that the probe team also check whether Inspector Subodh Singh was targeted, as the station under his charge allegedly failed to check cow slaughter and cattle smuggling.

Cow-slaughter as top priority

Shedding light on the course of investigations in the case, Bulandshahr superintendent of police Rayees Akhtar told The Wire that the police were following government priorities and the main concern was to find out who killed the cows. He further said, “After all, it was the killing of the cows that led to the protest, which resulted in inspector Subodh Kumar Singh’s murder. Our belief is that once we solve that case, it will throw light on how the murder occurred. The cow-killers are our top priority. The murder and rioting case is on the backburner for now.”

Even when CM Adityanath highlighted the increasing incidents of cow slaughter and need for curbs.

This deflection of focus from the actual investigation into the violence to finding the people who allegedly slaughtered cows prompted a group of 82 retired civil servants from the All India and Central Services, to write an open letter highlighting the constitutional morality, values and condemning the killing of the officer, also terming it as a more serious offence than any other crime. In the letter they:

Demanded the resignation of CM Adityanath for his failure to abide by the Constitution.
Reminded the Chief Secretary, the Director General of Police, the Home Secretary, and all other members of the higher civil services concerned, of their constitutional duty to fearlessly implement the Rule of Law rather than the perverse dictates of their political masters.
Requested the High Court at Allahabad to take suo motu cognisance of this incident and order a judicial enquiry supervised by them to uncover the true facts, expose the political collusion, fix responsibility and recommend action.

Arrests in the mob-lynching case

Prashant Nutt, by whose bullet inspector Subodh Singh was allegedly killed, was arrested on December 28, 2018.
Kalua, who was accused of attacking inspector Subodh Singh with an axe, was arrested on January 1, 2019. A cell phone video was used to identify Kalua and Johnny (who snatched the officer’s revolver).
Yogeshraj, was arrested on January 3, 2019.
Shikhar Agrawal was arrested on January 10, 2019.

Other Developments

Yogeshraj sent Sankranti and Republic Day wishes and appeared in Bajrang Dal posters in January 2019. The Bajrang Dal defended it saying it was not wrong to put his posters as he was the local convener, and is just an accused, not found guilty yet.
Seven people accused with the killing of officer Subodh Singh were granted bail. The accused along with Shikhar Agarwal given a hero’s welcome with slogans of “Jai Shree Ram” and “Vande Mataram” as seen in videos that surfaced on Facebook.
The widow of officer Singh being upset after accused got bail, she said the government should kill her if it could not punish the criminals.
The National Convention Against State Complicity in Hate Crimes organised by the Democratic Youth Federation of India (DYFI), adopted a resolution against hate crimes and demanded special-law on mob-lynching.

Accused won Panchayat Elections

Yogeshraj stood for the Panchayat elections in UP from ward number 5 for the post of district panchayat member. He receiving 10,352 of the total 27,763 votes, and defeated his closest competitor, an independent candidate Nirdosh Chaudhary by 2,150 votes to win the election.

Role in PM Welfare fund

Shikhar Agarwal, was conferred upon the role of Mahamantri or person in charge of publishing PM’s welfare scheme campaign in Bulandshahr.

Allahabad HC grants bail to Yogeshraj

Vide an order of the Allahabad High Court dated September 25, 2019, Yogeshraj charged under sections 124- A, IPC (Sedition) was granted bail as his application was held to be pari-passu to that of Ashish Kumar, a co-accused earlier granted bail by the Court. In the latter’s case, he being indicted under various offences and being granted bail, section 124-A was also added to the chargesheet.

Application of Rule of Parity:

Even earlier, the Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli) & Anr. (Crl.A.No 422 of 2021) has corrected a bail given by Gujarat HC, whereby the latter had failed to take into account the seriousness and gravity of the offense. In this case, the Supreme Court further elaborated that for application of parity principle, it needs to be focused on the role of the accused and their position with respects to the incident and victims. Even the Orissa HC in Harishankar Dewangaon v. State of Odisha (BLAPL No. 2439 of 2021) has held that parity cannot solely be the grounds for bail.

While the accused’s lawyer submitted that Yogeshraj had only been involved in the protest against cow-slaughter and no allegations of lynching were present, the Supreme Court, in its recent order, taking note of the counter-affidavit filed by the UP Government elucidated that the case was of mob-lynching.

While the AGA opposed the grant of bail to Yogeshraj, he did not oppose the grounds of parity. A similar trend has been observed in the Dadri lynching case bail applications of six key accused. As reported by The Economic times, the parity was not contested by the government while bail was opposed and the Allahabad High Court ruling on the basis of the principle granted bail to Rana, the prime accused. The similarity in both the cases goes to the extent that, most of the accused and especially the primary ones received bail, there has been delay in filing of charges, etc.

The complete HC orders in the matters of both the accused may be read here:

Granting of bail in case charged with severe offence

As held by the Apex Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40:

The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case.

As held in Govind Prasad, it being a judicial rather than a ministerial act, this discretion is not to be used arbitrarily.

The Allahabad High Court without going further into the merits of the case, basing its decision on article 21 and the precedent set in Dataram Singh v. The State of Uttar Pradesh (2018) 3 SCC 22 had granted bail to Ashish Kumar. However, in the latter case itself, though giving due regards to article 21 and the social facts about overcrowding in prisons and elucidating after examining previous precedents that the general rule is granting bail and refusal is the exception, the Court also highlighted that bail should not be granted in every case and this unfettered discretion is conferred on the judge who should use it judiciously and in humane manner so that such provisions become illusory.

This judicious behaviour and non-routine approach by the Court has also been focused in Kalyan Chandra Sarkar v. Rajesh Ranjan Pappu Yadav and Anr. (2004 (7) SCC 528). Though merits of the case are not to be examined, reason for prima facie giving bail to a person charged with a serious offence is necessary.

In the case of Amarmani Tripathi, the Court has listed the matters to be considered in application of bail as:

If there is prima facie or reasonable ground to believe that accused had committed the offence
Nature and gravity of charge
Severity of Punishment if convicted
Danger of accused absconding or fleeing if released on bail
Character, behaviour, means, position and standing of the accused
Likelihood of the offence being repeated
reasonable apprehension of the witnesses being tampered with
danger, of course, of justice being thwarted by grant of bail

Further in the Rao Harnairain Singh v. The State (AIR 1958 P H 123), the Supreme Court has again highlighted into taking into account factors such as enormity of charge, nature of accusation, severity of punishment on conviction, possibility of accused absconding if released on bail, the danger of witnesses being tampered with, health, age and sex of accused etc. while granting bail and that restrictions under S. 437(1) of CrPC applied to such cases.

The Supreme Court rightly identifying this seriousness has stated:

The matter is quite serious where under the pretext of cow slaughter, a police officer has been lynched. Prima facie, it is a case of taking law into their own hands.

Substantiating the severity of the issue

As per a report in The Print, cow related violence is so prevalent in Uttar Pradesh, that it tops the list of such cases in the country since 2012 with 11 deaths resulting from 20 instances. With the ever-increasing mob-lynching cases in the state and especially after the Bulandshahr incident, the UP-Law Commission taking suo moto action submitted a 128-page report on mob-lynching to CM Adityanath including the draft UP Combating of Mob Lynching Bill. Times of India reported that the bill recommends life imprisonment for the accused if the victims die of mob-violence. The bill is with the home department which is looking into the recommendations with speculations that penalties and clauses may be added or changed.