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TMI Blog2011 (5) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was compelled to withdraw that complaint. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shi, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie case against them. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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