2011 (5) TMI 1065 - SC - Indian Laws

Challenging the order of H.C for cancelling bail order passes by Session Court - Fake Police Encounter or not - HELD THAT - 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 deceased 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. 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. 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. 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. In the Shanti Parva of Mahabharat Vol. 1 it is stated - Raja chen-na bhavellokey prithivyaam dandadharakah Shuley matsyanivapakshyan durbalaan balvattaraah - 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.

Summary

Issues Involved:
1. Cancellation of bail granted by the Sessions Court.
2. Allegations of a fake police encounter.
3. Prima facie case against the accused.
4. Considerations for granting and canceling bail.
5. Role of police officers in the alleged conspiracy.
6. Implications of lawlessness and the concept of Matsyanyaya.

Detailed Analysis:

1. Cancellation of Bail Granted by the Sessions Court:
The appeal was filed against the High Court's decision to cancel the bail granted by the Sessions Court to the appellants, who are policemen accused of a contract killing. The High Court's order dated 21.1.2011 in Criminal Application Nos. 5283-5285 and 5303-5304 of 2010 was in question.

2. Allegations of a Fake Police Encounter:
The appellants, who are policemen, were accused of killing Ramnarayan Gupta in a staged police encounter. The prosecution alleged that the deceased was abducted and subsequently killed, and a false FIR was lodged to cover up the murder. The Metropolitan Magistrate's inquiry report confirmed that the deceased was shot while in police custody and not during an encounter as claimed by the police.

3. Prima Facie Case Against the Accused:
The investigation revealed a conspiracy involving several police officers and private individuals. The accused were charged with offenses under Sections 302/34, 120-B, 364/34 IPC, among others. The High Court found sufficient material indicating the involvement of the accused in the conspiracy and the execution of the alleged fake encounter.

4. Considerations for Granting and Canceling Bail:
The court noted that the considerations for canceling bail differ from those for granting bail. While misuse of bail is a significant factor, it is not the only one. The gravity and nature of the offense, prima facie case, and the position of the accused must also be considered. The court emphasized that serious allegations against the accused could justify canceling bail even without evidence of bail misuse.

5. Role of Police Officers in the Alleged Conspiracy:
The accused, including police officers, were alleged to have acted as contract killers. The investigation indicated that they were involved in the abduction and killing of the deceased. The court highlighted that the accused had consistently claimed to be part of the encounter team, which was contradicted by the investigation findings.

6. Implications of Lawlessness and the Concept of Matsyanyaya:
The judgment underscored the severe implications of lawlessness, drawing parallels to the concept of Matsyanyaya, where the strong prey on the weak in the absence of law and order. The court warned that policemen involved in fake encounters must face harsh punishment, including the death penalty, as their actions are a betrayal of their duty to uphold the law.

Conclusion:
The Supreme Court dismissed the appeals, upholding the High Court's decision to cancel the bail. The court emphasized the seriousness of the allegations and the need for stringent punishment for policemen involved in fake encounters. The trial court was instructed to decide the case uninfluenced by the observations made in this judgment.