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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1174-1178_OF 2011
[Arising out of SLP((Criminal) Nos. 3865-69 of 2011]
Prakash Kadam & etc. etc. .. Appellants
-versus-
Ramprasad Vishwanath Gupta & Anr. .. Respondents
J U D G M E N T
Markandey Katju, J.
A curse shall light upon the limbs of men;
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy;
Blood and destruction shall be so in use
And dreadful objects so familiar
That mothers shall but smile when they behold
Their infants quarter'd with the hands of war;
All pity choked with custom of fell deeds:
And Caesar's spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch's voice
Cry "Havoc!" and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion mean, groaning for burial.
-- (Shakespeare: Julius Caesar Act 3 Scene 1)
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1. Leave granted. Heard learned counsel for the appellants and perused
the record.
2. This case reveals to what grisly depths our society has descended.
3. This appeal has been filed against the impugned judgment and order
dated 21.1.2011 passed by the High Court of Judicaure at Bombay in
Criminal Application Nos. 5283-5285 and 5303-5304 of 2010 by which the
High Court has cancelled the bail granted to the appellants by the Sessions
Court.
4. The appellants are policemen accused of a contract killing in Sessions
Case No. 317/2010 which is pending before the Sessions Judge, Greater
Bombay. The appellants have been charge-sheeted for offences punishable
under Sections 302/34,120-B, 364/34 IPC and other minor offences. The
victim of the offence is deceased Ramnaryan Gupta @ Lakhanbhaiyya. The
prosecution case is that the appellants were engaged as contract killers by a
private person to eliminate the deceased.
5. The case of the prosecution in brief is that the deceased Ramnarayan
Gupta and the accused No. 14, Janardan Bhange were, once upon a time,
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very close to each other. Both of them had been working as estate agents
and, mainly their business was to purchase land from the farmers whose land
has been acquired by the Government under the Land Acquisition Act and to
whom 12 percent of the land was given by the Government. This 12 percent
of the land was being purchased at meager price by the deceased and
accused No. 14, Janardan Bhange and was being sold on premium at later
stage. During the course of that business, both of them had been exchanging
the files pending with them for disposal pertaining to the said land.
6. There were some differences between the deceased Ramnarayan
Gupta and accused No. 14, Janardan and hence it is alleged that the accused
Janardan decided to eliminate the deceased in a false police encounter.
Hence, he hired the services of the accused, and in pursuance of the said
conspiracy the deceased Ramnarayan Gupta and his friend Anil Bheda were
abducted on 11.11.2006 from near a shop named Trisha Collections at
Vashi, New Bombay by 4 or 5 well-built persons who appeared to be
policemen and were forcibly bundled into a Qualis car. The complainant,
brother of the deceased, sent telegrams and fax messages to different
authorities complaining that the said two persons had been abducted by
some persons who appeared to be policemen and were in danger of losing
their lives.
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7. It is alleged that at Bhandup Complex the deceased was shifted to an
Innova vehicle. The deceased and witness Anil Bheda were taken to D.N.
Nagar police station in two separate vehicles i.e. one Qualis and the other
Innova. It is alleged that the deceased was killed and his dead body was
thrown near Nana-Nani Park at Versova. The dead body, after some time,
was collected from the said place by the police to create a false case of
police encounter. A case vide C.R. No. 302/2006 was registered on
11.11.2006 at Versova Police Station against deceased Ramnarayan Gupta
on the complaint made by accused No. 9. In the said FIR it was shown that
accused No. 9 and other police officers had gone to Nana-Nani Park on the
basis of certain information and that the deceased was asked to surrender
before the police. Instead of surrendering before the police, the deceased
had attempted to kill the police and in retaliation he was shot by them.
8. It is also alleged that witness Anil Bheda was initially detained at
D.N. Nagar Police Station and thereafter he was taken to Kolhapur and he
was further detained at Mid Town Hotel at Andheri. As such the witness
Anil Bheda was in custody of the police for about one month from
11.11.2006. His wife had lodged a missing complaint at Vashi police station
on the same day, but she was compelled to withdraw that complaint.
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9. The complainant is the brother of the deceased and is a practicing
advocate. He came to know within a few minutes of the incident of
abduction of his brother. He, therefore, along with advocate Mr. Ganesh
Ayyer, started searching for his brother and in the meantime he had also sent
telegrams to Police Commissioner of Thane, Mumbai and New Bombay of
the alleged abduction of his brother and indicated apprehension that his
brother would be eliminated in a false police encounter. On the same day it
was flashed on T.V. channels that the deceased had been killed in a police
encounter. The complainant, therefore, approached the High Court on
15.11.2006 by filing a writ petition (WP 2473/2006) to get directions from
the High Court to the police to register a case in respect of death of his
brother.
10. On the aforesaid writ petition the High Court on 13.2.2008 passed an
order that the offence of murder be registered against the accused. During
the investigation the statement of Anil Bheda and other witnesses were
recorded. So far, the police have charge-sheeted 19 accused.
11. After the High Court by its order dated 13.2.2008 had directed the
Metropolitan Magistrate, Railway Mobile Court, Andheri to make an inquiry
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under Section 176(1A) Cr.P.C., the Metropolitan Magistrate after holding
the inquiry submitted a report dated 11.8.2008 that Ramnarayan Gupta was
shot by the police when he was in police custody. The report also stated that
the death had not taken place at the spot alleged by the police, and that the
deceased had not disappeared from the police custody before he was done to
death, but that the deceased was abducted by the police. The report also
held that a false FIR was lodged by accused No. 9 Police Inspector Pradip
Suryavanshi of D.N. Nagar Police Sttion to show that Ramnarayan Gupta
was killed in a police encounter at Nana-Nani Park, and this FIR was filed to
cover up the murder of the deceased Ramnarayan Gupta.
12. After the inquiry report was submitted by the Metropolitan
Magistrate, the Division Bench of the Bombay High Court by its order dated
13.8.2009 in the aforesaid criminal writ petition constituted a Special
Investigation Team for investigation of this case. Mr. K.M.M. Prasanna,
DCP, Mumbai City, was appointed as head of the investigation team, and he
was directed to record the statement of the complainant and to treat that
statement as the FIR. Copy of the order of the Bombay High Court dated
13.8.2009 is Annexure P-3 to this appeal. Accordingly, the statement of the
complainant was recorded on 20.8.2009 which was treated as the FIR
(Annexure P4 to this appeal) and investigation was carried out. The
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statement and supplementary statement of Anil Bheda, which corroborates
the prosecution case, is Annexure P5 to this appeal.
13. During investigation, it was revealed that accused No.1 Police
Inspector Pradip Sharma (who is described as an `encounter specialist'),
accused No.9 - PI Pradip Suryawanshi and accused No. 14 - Janardan
Bhanage, had entered into a conspiracy to eliminate Ramnarayan Gupta. It
appears that accused No.14 Janardan Bhanage had some personal enmity
with Ramnarayan Gupta. Thereafter other officers and some criminals were
involved in the execution of the said conspiracy. Accused No.4 - Shailendra
Pande , accused No.5 - Hitesh Solanki, accused N0.6 - Akil Khan, accused
No.8 - Manoj Mohan Raj, accused No.12 - Mohd. Moiddin and accused
No.21 - Suresh Shetty and accused No.7 police constable Vinayak Shinde
had abducted Ramnarayan Gupta and Anil Bheda from Vashi, on
11.11.2006. Accused No.1 PI Pradip Sharma, accused No.2 Police
Constable Tanaji Desai, accused No.9 P.I. Pradip Suryavanshi, accused
No.15 API - Dilip Palande were the persons who actually fired and shot
dead the deceased. Accused No.11 API Nitin Satape and accused no.22 PSI
Arvind Sarvankar claimed to have fired during the encounter, though the
bullets fired from their fire arms were not recovered. Accused Nos. 13,16,
17, 18 and 19, whose bail orders were cancelled by the High Court, are said
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to be the members of the team which shot him dead. Accused No.13
Devidas Sakpal had allegedly guarded Anil Bheda at Hotel Mid Town on
certain occasions and accused No.16 Head Constable Prakash Kadam had
joined the abductors at about 4.30 p.m. and since then he was with Anil
Bheda. He was also with Anil Bheda when he was taken out from
D.N.Nagar Police Station in the evening and also later on at Hotel Mid
Town from time to time.
14. On behalf of the prosecution, it is pointed out that in the FIR lodged
by P.I. Pradip Suryavanshi showing the killing of Ramnarayan Gupta in an
encounter at Nana-Nani Park, he had given names of police officers and
police staff, who were in that team. The names of accused Nos.13,16, 17, 18
and 19 are shown in the said FIR. On that basis an entry was made in the
station diary, where also the names of these persons were shown. It is also
pointed out that in the magisterial enquiry, which was initially directed by
the Police Commissioner, these persons had claimed to be members of the
encounter team. When the complainant filed the Writ Petition against the
State for taking action against the culprits, some of these persons had
appeared to contest the writ petition. After the writ petition was allowed and
this Court directed investigation, accused Nos. 13, 16, 19 and 20 filed
Special Leave Petition challenging that order, which was dismissed.
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Everywhere they had taken the plea that Ramnarayan Gupta was shot dead
in an encounter and that they were members of the Police team involved in
that encounter and were also present at the time of the alleged encounter.
The learned Counsel also pointed out that there is sufficient material to show
that these persons were involved in the commission of the crime.
15. The Sessions Court granted bail to the appellants but that has been
cancelled by the High Court by the impugned judgment.
16. It was contended by learned counsel for the appellants before us, and
it was also contended before the High Court, that the considerations for
cancellation of bail is different from the consideration of grant of bail vide
Bhagirathsinh s/o Mahipat Singh Judeja vs. State of Gujarat (1984) 1
SCC 284, Dolat Ram and others vs. State of Haryana (1995) 1 SCC 349
and Ramcharan vs. Sta
te of M.P. (2004) 13 SCC 617.
17. However, we are of the opinion that that is not an absolute rule, and it
will depend on the facts and circumstances of the case. In considering
whether to cancel the bail the Court has also to consider the gravity and
nature of the offence, prima facie case against the accused, the position and
standing of the accused, etc. If there are very serious allegations against the
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accused his bail may be cancelled even if he has not misused the bail granted
to him. Moreover, the above principle applies when the same Court which
granted bail is approached for canceling the bail. It will not apply when the
order granting bail is appealed against before an appellate/revisional Court.
18. In our opinion, there is no absolute rule that once bail is granted to the
accused then it can only be cancelled if there is likelihood of misuse of the
bail. That factor, though no doubt important, is not the only factor. There
are several other factors also which may be seen while deciding to cancel the
bail.
19. This is a very serious case and cannot be treated like an ordinary case.
The accused who are policemen are supposed to uphold the law, but the
allegation against them is that they functioned as contract killers. Their
version that Ramnarayan Gupta was shot in a police encounter has been
found to be false during the investigation. It is true that we are not deciding
the case finally as that will be done by the trial court where the case is
pending, but we can certainly examine the material on record in deciding
whether there is a prima facie case against the accused which disentitles
them to bail.
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20. Accused No. 11 API Nitin Sartape, accused No.17 PSI Ganesh
Harpude, and accused No.19 PSI Pandurang Kokam, who were attached to
Versova Police Station, as per the station diary entry 33 of Versova Police
Station left Versova Police Station to go to D.N.Nagar Police Station on a
special assignment. That entry No.33 was taken in the station diary of
Versova Police Station at 18.05 hours. Entry No.25 in the station diary of
D.N.Nagar Police Station at 18.55 hrs. shows that Police Inspector
Suryavanshi, API Dilip Palande (accused No.15), PSI Arvind Sarvankar
(accused No.22), PSI Patade (accused No.18) and API Sartape (accused
No.11), PSI Harpude (accused No.17) and Police Constable Batch No.26645
i.e. Pandurang Kokam (accused No.19) left the Police Station to go near
Nani Nani Park to verify and to arrest a hardened criminal. It appears that 3
police officers i.e. AP Sartape, PSI Harpude and Constable Pandurang
Kokam were specially called from the Versova Police Station and they were
in the team of the police officers and staff who accompanied PI Suryavanshi.
This team left the police station at 18.55 hrs. as per the said entry and it
appears that at about 8 to 8.15 p.m. Ramnarayan was shot dead. At this
stage, the defence of the accused need not be taken into consideration,
because during the investigation, it has been found that there was no
encounter and Ramnarayan Gupta was shot dead in a fake encounter. This
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station diary No.25 of 18.55 hrs. goes to show that accused No.17 PSI
Hapude, accused No.18 PSI Patade and accused No.19 Constable Pandurang
Kokam were the members of the team which killed Ramnarayan. Not only
this, as per the record of D.N.Nagar Police station, on 11.11.2006, at 6 p.m.
Police Inspector Suryavanshi, API Sartape and PSI Anand Patade had
collected weapons and ammunition. Naturally, those weapons were collected
by the said officers to go to some place for a mission. According to them,
they went to at Nana Nani Park where Ramnarayan Gupta was killed. In
view of this, the presence of PSI Patade in the team which executed the said
plan and killed Ramnarayan does not appear to be in doubt. Merely because
accused No.18 PSI Patade himself did not fire is not sufficient. Accused
Nos. 17 Ganesh Harpude and accused No.19 Pandurang Kokam, as pointed
out above, were also members of that team. It is also material to note that
these accused persons had consistently taken a stand that they were present
at the time of the said encounter and this is clear from their stand taken
before the High Court as well as before the Supreme Court in Special Leave
Petition filed by the accused Nos. 13, 16, 19 and 21. In that SLP also they
had stated that accused Nos. 17 and 18 were also in the encounter team.
Hence there is a prima facie case against them.
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21. As far as accused Nos. 16, 17, 18 and 19 are concerned, there is
sufficient material to prima facie establish their role in this conspiracy and
the alleged execution of Ramnarayan Gupta. Accused No.13 was allegedly
given duty of guarding Anil Bheda at Hotel Mid Town where he was being
detained illegally. It is contended by the learned Counsel for the accused that
if any duty of guarding or surveillance is given to a Police Constable by his
superiors, he is bound to discharge that duty and merely because he was
given the guarding duty, it cannot be said that he was party to the
conspiracy. However, it cannot be forgotten that accused No.13 was one of
the petitioners before the Supreme Court and had claimed that he was a
member of the encounter team along with PI Suryavanshi and others, and
this admission finds corroboration from the contents of the FIR registered by
PI Suryavanshi himself.
22. In fact, the prosecution material collected during the investigation
prima facie indicates that Ramnarayan Gupta was abducted during the day
time and was taken to D.N.Nagar Police Station and from there he was taken
to some unknown place where he was shot dead. At 9 p.m. some police
officers came back to the police station and deposited their weapons and
kept their blood stained clothes.
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23. In our opinion this is a very serious case wherein prima facie some
police officers and staff were engaged by some private persons to kill their
opponent i.e. Ramnarayan Gupta and the police officers and the staff acted
as contract killers for them. If such police officers and staff can be engaged
as contract killers to finish some person, there may be very strong
apprehension in the mind of the witnesses about their own safety. If the
police officers and staff could kill a person at the behest of a third person, it
cannot be ruled out that they may kill the important witnesses or their
relatives or give threats to them at the time of trial of the case to save
themselves. This aspect has been completely ignored by the learned Sessions
Judge while granting bail to the accused persons.
24. In our opinion, the High Court was perfectly justified in canceling the
bail to the accused-appellants. The accused/appellants are police personnel
and it was their duty to uphold the law, but far from performing their duty,
they appear to have operated as criminals. Thus, the protectors have become
the predators. As the Bible says "If the salt has lost its flavour, wherewith
shall it be salted?", or as the ancient Romans used to say,"Who will guard
the Praetorian guards?" (see in this connection the judgment of this Court in
CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on
25.10.2010).
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25. We are of the view that in cases where a fake encounter is proved
against policemen in a trial, they must be given death sentence, treating it as
the rarest of rare cases. Fake `encounters' are nothing but cold blooded,
brutal murder by persons who are supposed to uphold the law. In our
opinion if crimes are committed by ordinary people, ordinary punishment
should be given, but if the offence is committed by policemen much harsher
punishment should be given to them because they do an act totally contrary
to their duties.
26. We warn policemen that they will not be excused for committing
murder in the name of `encounter' on the pretext that they were carrying out
the orders of their superior officers or politicians, however high. In the
Nuremburg trials the Nazi war criminals took the plea that `orders are
orders', nevertheless they were hanged. If a policeman is given an illegal
order by any superior to do a fake `encounter', it is his duty to refuse to carry
out such illegal order, otherwise he will be charged for murder, and if found
guilty sentenced to death. The `encounter' philosophy is a criminal
philosophy, and all policemen must know this. Trigger happy policemen
who think they can kill people in the name of `encounter' and get away with
it should know that the gallows await them.
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27. For the above reasons, these appeals are dismissed.
28. Before parting with this case, it is imperative in our opinion to
mention that our ancient thinkers were of the view that the worst state of
affairs possible in society is a state of lawlessness. When the rule of law
collapses it is replaced by Matsyanyaya, which means the law of the jungle.
In Sanskrit the word `Matsya' means fish, and Matsyanyaya means a state of
affairs where the big fish devours the smaller one. All our ancient thinkers
have condemned Matsyanyaya vide `History of Dharmashastra' by P.V.
Kane Vol. III p. 21. A glimpse of the situation which will prevail if
matsyanyaya comes into existence is provided by Mark Antony's speech in
Shakespeare's `Julius Caesar' quoted at the beginning of this judgment.
29. This idea of matsyanyaya (the maxim of the larger fish devouring the
smaller ones or the strong despoiling the weak) is frequently dwelt upon by
Kautilya, the Mahabharata and other works. It can be traced back to the
Shatapatha Brahmana XI 1.6.24 where it is said "whenever there is drought,
then the stronger seizes upon the weaker, for the waters are the law," which
means that when there is no rain the reign of law comes to an end and
matsyanyaya beings to operate.
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30. Kautilya says, `if danda be not employed, it gives rise to the condition
of matsyanyaya, since in the absence of a chastiser the strong devour the
weak'. That in the absence of a king (arajaka) or when there is no fear of
punishment, the condition of matsyanyaya follows is declared by several
works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30
and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II.
20.1295 etc.
31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:-
"Raja chen-na bhavellokey prithivyaam dandadharakah
Shuley matsyanivapakshyan durbalaan balvattaraah"
32. This shloka means that when the King carrying the rod of punishment
does not protect the earth then the strong persons destroy the weaker ones,
just like in water the big fish eat the small fish. In the Shantiparva of
Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse
in the world than lawlessness, for in a state of Matsyayaya, nobody, not even
the evil doers are safe, because even the evil doers will sooner or later be
swallowed up by other evil doers.
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33. We have referred to this because behind the growing lawlessness in
the country this Court can see the looming danger of matsyanyaya.
34. The appeals are dismissed, but it is made clear that the trial court will
decide the criminal case against the appellants uninfluenced by any
observations made in this judgment, or in the impugned judgment of the
High Court.
.................................J.
(Markandey Katju)
.................................J.
(Gyan Sudha Misra)
New Delhi;
13th May, 2011
