Brajendra Kumar Gupta vs State Of U.P. & 3 Others
2014 Latest Caselaw 2062 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6538 of 2014
 

 
Petitioner :- Brajendra Kumar Gupta
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Amit Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate,Anurag Khanna
 

 
Hon'ble Arun Tandon,J.

Hon'ble Shashi Kant,J.

Heard Sri Amit Kumar Srivastava, learned counsel for the petitioner, Sri Gopal Chaturvedi, learned Senior Advocate, assisted by Sri Azaz Ahmad, Advocate on behalf of respondent no.4 and Sri V.C. Mishra, learned Advocate General assisted by Sri Ali Murtaza, learned Additional Government Advocate for the State-respondents.

Petitioner, the father of the deceased, Mukul Gupta made an application under Section 156 (3) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Bareilly stating therein that his son was a brilliant, educated man. He had no criminal antecedents. He was engaged in business of medicines. His son used to travel from Bareilly to other places for the purposes of his business. Respondent no.4 J. Ravindra Gaur, Additional Superintendent of Police (Trainee), Bareilly wanted some certificate to please his senior police officers. He was eager to earn out of turn promotion. He hatched a conspiracy and set up a fake police encounter with the help of other police officers and informers (mukhbirs). It was stated that on 30th June, 2007 at 09:00 a.m., the son of the informant namely, Mukul Gupta, while travelling on a Rikshaw, was intercepted by the Inspector, Kotwali and robbed of one Lac of rupees and mobile phone. Thereafter, he handed over Mukul Gupta to respondent no.4, J. Ravindra Gaur. Respondent no.4, who by setting up a false and frivolous encounter along with accompanying other officers, killed his son. In order to create a false case of encounter, J. Ravindra Gaur also lodged a first information report against Mukul Gupta under Section 307 of the Indian Penal Code and Section 25 of the Arms Act.

This application of the petitioner-informant under Section 156 (3) of the Code of Criminal Procedure was rejected by the Chief Judicial Magistrate, Bareilly vide order dated 18th June, 2008. Not being satisfied, petitioner filed an application under Section 482 of the Code of Criminal Procedure before the High Court being Criminal Misc. Application No. 17364 of 2008. This application was granted by the High Court vide order dated 14th July, 2008. Order of the Chief Judicial Magistrate dated 18th June, 2008 was quashed. The magistrate was directed to reconsider the application filed by the petitioner.

The Chief Judicial Magistrate passed an order on 22nd August, 2008 for a first information being registered and offence being investigated.

In terms of the order of the Chief Judicial Magistrate, first information was registered amongst others against J. Ravindra Gaur being case Crime No. 571 of 2008 under Sections 302, 201 and 120-B of the Indian Penal Code, Police Station Fatehganj West, District Bareily on 11th September, 2008.

It appears that local police, which initially investigated the offence, decided to submit final report in favour of the accused, however, on the insistence of the petitioner, investigation was transferred to SIS, Badaun vide order dated 10th August, 2008 passed by the Deputy Inspector General of Police, Bareilly Range, Bareilly. SIS, Badaun also intended to submit final report in favour of the accused.

At this stage, petitioner-informant filed Criminal Misc. Writ Petition No. 20275 of 2008 for transfer of the investigation of Case Crime No. 571 of 2008 to some other Investigating Agency. Writ petition was allowed by the High Court vide judgement and order dated 26th February, 2010 after hearing the learned counsel for the State. The High Court found it just and proper in the facts of the case to transfer the investigation to the Central Bureau of Investigation (hereafter referred to as the "CBI"). Order of the High Court is on record of the present writ petition as Annexure-4. Operative portion of the order of the High Court reads as follows:

".........It is thus clear that even though the investigation is continuing, the conclusion has already been expressed in the said paragraph. The apprehension of the petitioner does not appear to be without any foundation. It is not only necessary that the investigation should be done, but a fair investigation should be ensured and, therefore, in these facts and circumstances, we are of the considered view that the investigation by the SIS, Budaun is also liable to be transferred to another independent agency.

In the facts and circumstances, we are of the view that the investigation in case crime no.571 of 2008 under Sections 302, 201, 120B I.P.C., Police Station Fatehganj West, District Bareilly should be carried out by an absolute independent agency and the only option which compels us to arrive at a conclusion that the investigation shall be carried out by the Central Bureau of Investigation. The State Government shall ensure that the necessary papers and documents shall be handed over to the Central Bureau of Investigation for making investigation and the Civil Police is hereby restrained from proceeding with the investigation of the case crime no.571 of 2008 under Sections 302, 201, 120B I.P.C., Police Station Fatehganj West, District Bareilly. The Central Bureau of Investigation is directed that it should ensure a fair investigation and as this matter has considerably been delayed, investigation should be completed as expeditiously as possible."

The CBI accordingly re-registered the case as Case Crime No. RC 0532010S0006, Police Station C.B.I./S.C.B., Lucknow, under Sections 302, 201 and 120-B of the Indian Penal Code on 17th June, 2010 against the accused persons. After investigation, the C.B.I. found that offence has been committed and therefore, submitted a charge-sheet against the accused before the designated Court.

Despite submission of the charge-sheet by the C.B.I., no further action was being taken, this resulted in filing of Criminal Misc. Writ Petition No. 5202 of 2013 for a mandamus directing the State Government to grant sanction for prosecution of the police officers.

During the pendency of the said writ petition, the respondent-Secretary (Home), U.P. Government at Lucknow passed the impugned order dated 24th September, 2013 refusing to grant sanction for prosecution of J.Ravindra Gaur and other police officers. Order of the State Government is enclosed as Annexure-1 to the present writ petition. Hence this petition.

The State Government, in the order impugned, has recorded that at the time of incident, J. Ravindra Gaur was not armed. He had only instructed the police officers to use the minimum force required. It has been mentioned that victim Mukul Gupta had expired because of police firing in self-defence and there is no reason to disbelieve what has been stated in the first information report lodged by J. Ravindra Gaur. Thereafter, with reference to the judgement of the Apex Court in the case of Sri Raghunath Anant Govilkar vs. State of Maharashtra & Others, reported in (2008) 11 SCC 289, the State Government has decided to refuse sanction.

Learned counsel for the petitioner vehementally contended that the State Government has failed to take into consideration that the C.B.I. in its report, had categorically recorded that in fact there was no firing by the victims, it was a case of fake encounter. In the first information report lodged by J. Ravindra Gaur himself being case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014, Police Station Fatehganj West, District Bareilly enclosed as Annexure-6 to the present writ petition, he had stated that accused were travelling in a car and had fired upon the police party. Only in order to save their life, his gunner, Gauri Shanker, fired 9 rounds from A.K.-47 rifle. When the cross firing stopped, they reached Tata Sumo Car and found that one of the culprit, who had been hit by a bullet was lying injured on the back seat of Tata Sumo Car along with 315 Bore Country-made Pistol between his thigh and and left hand. Illegal arms and ammunitions are stated to have been recovered from him. The injured disclosed his name as Pankaj alias Karan and further stated that he and his friend, Mukul Gupta, the deceased and one other had planned to rob a Bank. Thereafter they could see another person lying near the seat of the driver. On close examination, it was found that person was dead and was identified as Mukul Gupta by the injured accused, namely, Pankaj. From the deceased, Mukul Gupta also illegal arms and ammunitions were stated to have been recovered.

This version of the first information report lodged by J. Ravindra Gaur was found to be false by the C.B.I. after investigation and it had categorically been recorded that no firing from the side of the accused in fact took place. The C.B.I. had reported after investigation that it was a case of fake encounter.

Learned counsel for the petitioner also points out that from the post-mortem report of the deceased, it was established that he had been shot from a close range, as blackening was found in the ante-mortem injuries sustained by the deceased Mukul Gupta. He submits that the State Government has failed to apply its mind to all the aforesaid facts, while refusing to grant sanction.

Sri V.C. Mishra, learned Advocate General on behalf of the State submits that the Court cannot look into the sufficiency of the material which was available with the State Government in the matter of refusal to grant permission for prosecution of the police officers as the Court does not sit in an appeal over the order of the State Government. Sri V.C. Mishra, has placed reliance upon the judgements of the Apex Court in the case of State of Maharashtra Through Central Bureau of Investigation vs. Mahesh G. Jain reported in (2013) 8 SCC 119 and Raghunath Anant Govilkar vs. State of Maharashtra & Others reported in (2008) 11 SCC 289.

Sri Gopal Chaturvedi, learned Senior Advocate on behalf of respondent no.4 has reiterated the same submission made by Sri V.C. Mishra and has placed reliance upon the judgement of the Apex Court in the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat reported in 1997 (7) SCC 622. He submitted that the entire material is not before the High Court, therefore, the High Court cannot direct the State Government to reconsider the matter of sanction of prosecution, inasmuch as it will amount to a direction to grant sanction. He submits that the Court cannot be permitted to do indirectly, what it can do directly. He therefore, submits that in the facts of the case the Court need not interfere.

We have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.

From the facts as borne out from the records of the present writ petition as well as from the report submitted by the C.B.I., it is apparently clear that the story as set up in the first information report lodged by J. Ravindra Gaur himself being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014, Police Station Fatehganj West, District Bareilly enclosed as Annexure-6 to the present writ petition, has been found to be false after investigation by the C.B.I. In its report, C.B.I. has categorically recorded finding that there had been no firing from the side of the victims and that it was a case of fake encounter. The State Government has failed to appreciate that the firing by the police party upon the deceased had admittedly been opened on the asking of the respondent no.4 J. Ravindra Gaur, as was stated in the order impugned and in the first information report lodged by him. Further the recovery of illicit arms etc. near the dead body of the Mukul Gupta has also been found to be false. Thus, the fact disclosed in the first information report lodged by J. Ravindra Gaur, was a false story.

The State Government has failed to take note of the contents of the first information report lodged by J. Ravindra Gaur and the facts as per the report submitted by the C.B.I. in the matter of it being a case of fake encounter.

We may record that the human life has been lost as per the report of the C.B.I. due to fake encounter. In our opinion there is little or no reason for the details as disclosed in the report of the C.B.I. being ignored, while passing the order impugned.

The State Government has also failed to consider that if there was no firing from the side of the victims, where was the occasion for firing by the police party in alleged self-defence under orders of J. Ravindra Gaur.

We are of the considered opinion that the matter needs to be re-visited by the State Government in light of the contents of the first information report lodged by J. Ravindra Gaur being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014 and the facts as disclosed in the report of the C.B.I. implicating J. Ravindra Gaur and other police officers in a case of fake encounter.

We may record that the law down by the Apex Court in the cases of State of Maharashtra Through Central Bureau of Investigation as well as in the case of Mansukhlal Vithaldas Chauhan (Supras) with regard to the sufficient material being not gone into by the High Court and further that there cannot be a direction to grant sanction for prosecution by the Court are well settled principles of law. But in the facts of the present case, we find that the State Government has not applied its mind to the relevant facts specifically the contents of the first information report lodged by J. Ravindra Gaur and the facts reported by the C.B.I. after investigation, which clearly implicates the police officers in a case of fake encounter.

Accordingly, the impugned order passed by the Secretary (Home), U.P. Government at Lucknow dated 24th September, 2013 cannot be legally sustained and hereby is quashed.

Writ petition is allowed with a cost of Rs. 50,000/- to be paid by the State to the petitioner for generating uncalled for litigation and for passing such illegal orders.

The State Government is directed to reconsider the issue of grant of sanction for prosecution in the facts of the present case after re-examining the report submitted by the C.B.I. in detail along with the contents of the first information reported lodged by J. Ravindra Gaur being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014.

Let the necessary exercise may be completed within four weeks from the date a certified copy of this order is filed before respondent no.1.

(Shashi Kant, J.)                                          (Arun Tandon, J.)
 
Order Date :- 27.5.2014
 
Sushil/-
 

 

 

 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6538 of 2014
 

 
Petitioner :- Brajendra Kumar Gupta
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Amit Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate,Anurag Khanna
 

 
Hon'ble Arun Tandon,J.
 
Hon'ble Shashi Kant,J.
 
Allowed.
 
For orders, see order of date passed on the separate sheets.
 

 

 
(Shashi Kant, J.)                                          (Arun Tandon, J.)
 
Order Date :- 27.5.2014
 
Sushil/-