Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr

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.

4 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.

5 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.

9 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.

11 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.

13 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.

14 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).

15 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.

16 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.

17 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.

18 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