Ravinder Pal Singh vs Santosh Kumar Jaiswal & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRIMINAL) NO.222 OF 2010

Ravindra Pal Singh ... Petitioner

VERSUS

Santosh Kumar Jaiswal & Ors. ...Respondents

J U D G E M E N T

SURINDER SINGH NIJJAR, J.

1. This transfer petition has been filed by the father of

Ranbir Singh (hereinafter referred to as `the deceased'),

who according to the prosecution, was killed by the

respondents in a fake encounter. On 2nd of July, 2009,

the deceased who was a MBA student had gone to

Dehradun in search of a job and stayed at Digambar Jain

Mandir, Dharmasala. On 3rd of July, 2009, he was

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arrested by the Police of Police Station Dalanwala at

around 1312 hrs. According to the prosecution, this can

be seen from the record of Global Positioning System

(GPS) log of the vehicle of SHO, Dalanwala. At around

1530 hrs on the same day, the deceased was killed in a

cold blooded manner by pumping 29 bullets into him by

the police officials. It is the case of the prosecution that

Santosh Kumar Jaiswal (A1) had fired 2 bullets from his

service revolver, Neeraj Kumar, SI (A4) fired 2 bullets

from his revolver; Chandra Mohan Singh Rawat (A6) fired

6 bullets from his pistol; Gopal Dutt Bhatt (A2) fired 7

bullets from his pistol; NItin Chouhan (A5) fired 6 bullets

from his pistol; Rajesh Bisht (A3) fired 7 bullets from his

pistol and Ajit Singh (A7) fired 2 bullets from AK-47. It is

also alleged that 5 bullets were fired by police officials

from the 9 mm Pistol, which was subsequently planted

by them on the deceased to camouflage the fake

encounter into a real encounter. The CFSL Report has

confirmed that 29 bullets were fired at the deceased.

Seventeen bullets hit him from a very close range as

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there was blackening surrounding the wounds. It was

also opined that atleast 9 bullets were fired at the

deceased from actual distance of 3 feet. The father of the

deceased was informed by media persons that his son

had been shot down by the police at Dehradun. He

reached Dehradun in the night itself. When he tried to

contact the police officials, he was threatened by one of

the police officers, namely, Ajay Singh C.O. Dalanwala

that if he tries to interfere in the matter, he would also be

eliminated like his son. On 4th July, 2009, the

complainant went to the hospital where he was again

threatened by another police officer, namely Mr. Tamta.

Thereafter, the complainant took the body of his son to

Meerut to perform his last rites. After performing the last

rites of his son, the complainant came back to Dehradun

and got registered FIR No.101 of 2009 dated 6th July,

2009. As the investigation was not progressing due to the

influence of the local police, the matter was entrusted to

the CBI for investigation. However, the police officials

continue to exert influence even on the investigation

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which was being conducted by the CBI.

2. In order to cover up the fake encounter, the deceased had

been made an accused in a case of theft and dacoity by

the police officials. It was alleged that Ranbir Singh and

his co-accused were planning to commit robbery in

the house of one Kavita Saxena situated at Madhuban

Enclave, Mohini Road, Dehradun. Ranbir Singh, the

deceased, was suspected to be in conspiracy with his

friend Shekhar Tyagi, Ram Kumar, Ashok Panwar and

Amit Bhatnagar. In order to commit the robbery, the

deceased and his friends had procured and were in

possession of lethal weapons. The deceased and his

companions were said to be in possession of one katta.

They had reached Dehradun on 2nd July, 2009. They had

planned to commit the robbery on 3rd July, 2009. It was

further the case of the respondents that the deceased

and his friends had stayed at Flat No.9 of Jain

Dharamshala, Gandhi Road, Dehradun on the night of

2nd July, 2009. On 3rd July, 2009, they left the Jain

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Dharamshala at about 1230 hrs. At that time, the

deceased and his friend were carrying a black bag

containing katta, ropes and "cello tape" etc. on a motor

cycle. They were being followed by Ram Kumar. Ashok

had been sent to see the lane in which the house of

Kavita Saxena was located. They were waiting for Ashok

to come back with the information at a place near

Gurudwara on Mohini road. At about 1245 hrs. they were

met by G.D. Bhatt, S.I. Incharge Araghar Chowki who

was on routine patrol checking. Whilst respondent No. 2

was checking the deceased and his friends, an altercation

broke out between them. In the altercation, the deceased

attacked respondent No. 2 and snatched his service

pistol. At that stage, a passerby, Anjum Parvej Khan

intervened and fired a shot in the air from his licenced

pistol. The deceased and his companion fled away on a

motor cycle along with service pistol which they had

stolen from S.I. G.D. Bhatt. According to the

respondents, the deceased was killed in an encounter

with the police personnel in cross firing. Consequently,

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an FIR was registered against the deceased and his

associates on 3rd July, 2009 under Section 394, IPC.

Another FIR was also registered under Section 307 IPC

against the deceased and his associates. The motor cycle

was also recovered from the place where the deceased

was killed in the encounter. According to the

respondents, even the motor cycle had earlier been stolen

by the deceased and his associates. Subsequently,

chargesheet had been filed against the deceased and his

associates under Sections 120B, 392, 333 and 411 IPC.

3. It is the case of the respondents that the transfer petition

is wholly misconceived. The investigation has been

transferred to the CBI. The CBI has submitted a closure

report in the case registered against the deceased and his

companion. Clearly, therefore, the police officers cannot

be said to be exerting any influence on the proceedings in

court. Once the investigation has been entrusted to the

CBI, the local police has no further role to play. Further

more, answering respondents are no longer posted at

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Dehradun. Even otherwise the respondents are not high

officials and cannot exert any influence on the State. One

of the respondents is an Inspector. Five respondents are

Sub-Inspectors and the rest are in the rank of

Constables. The impartiality of the State is also apparent

that all the respondents have been transferred out of

Dehradun.

4. The justification given by the respondents is, however,

controverted by the complainant illustrating the influence

wielded by the respondents. It is highlighted that even

the transfer of the case to the CBI has made no

difference. In fact, none of the police officers were even

suspended. All the accused had managed to create such

circumstances which led to the High Court granting bail

to the respondents. The complainant apprehends that

the prosecuting agency at Dehradun will not properly

conduct the case. It will not be able to resist the

influence of the accused. The influence of the accused is

such that the complainant was not able to even engage

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an advocate to file application for cancellation of bail in

the High Court against the respondents. Even the CBI

counsel was deliberately absent when the application for

bail was heard by the High court only to help the

respondents.

5. We have heard the learned counsel for the parties at

length. We are of the considered opinion that the

apprehensions expressed by the complainant, father of

the deceased, cannot be said to be unfounded. Mr. Sushil

Kumar, learned counsel appearing for the respondents

submitted that the deceased and his friends were in

possession of lethal weapons at a very crucial and

sensitive time. According to the learned counsel, on that

very day the President of India was due to visit

Dehradun, therefore, there was very intensive checking.

At the relevant time, when the deceased and his friends

were stopped for checking they became nervous. There

was a scuffle between the deceased and the police and in

the process, the deceased snatched the service revolver

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from the Inspector G.D. Bhatt. As a consequence, there

was a genuine encounter in which unfortunately the son

of the complainant was hit by some bullets in the cross

fire. Learned counsel further submitted that merely

because the accused in the case are police officials would

not lead to a presumption that there would not be a fair

trial in the State of U.P. He submitted that all the

concerned police officials have been transferred out of

Dehradun. They have in fact been put on non active

duties. In the event, the case is transferred out of State of

U.P. it would cause injustice to respondents. According to

the learned counsel the respondents are low ranking

police officials who would not be able to bear the

expenses in defending themselves at a court which is

situated a long distance away.

6. In our opinion, given the peculiar facts and

circumstances of this case, it is necessary to ensure that

there is no possibility of any undue influence being

exerted by the respondents on the prosecution. The

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complainant has made a serious grievance about the

manner in which the prosecution has been conducted.

We would refrain from recording any firm opinion on the

issue, at this stage. However, at the same time it must be

ensured that the prosecution witnesses are able to

depose without any fear of repercussions. This can only

be ensured by transferring the criminal case out of the

area in which no allegations could be made of undue

influence, against the prosecution.

7. The prayer made by the petitioner was for transfer of this

case to the CBI Court at Ghaziabad/Lucknow. However,

the accused had expressed similar apprehension about

undue influence being exerted by the petitioner, if the

case is transferred to the Court at Ghaziabad/Lucknow.

Therefore, purely in the interest of justice, we deem it

appropriate to transfer the case to Delhi. Case Crime No.

3 of 2010 titled State through CBI vs. S.K. Jaiswal is

transferred from the Court of Special Judicial Magistrate,

CBI, Dehradun to the Court of Special Judge, CBI,

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Delhi, for trial or its assignment to an appropriate court,

as the Special Judge may consider it fit and proper.

...................................J.

[B.Sudershan Reddy]

...................................J.

[Surinder Singh Nijjar]

New Delhi

March 17, 2011