MP High Court Denies CBI Probe In 2007 Fake Encounter Case But Orders State To Pay Rs 1 Lakh Cost For Insensitivity Of Police Dept

Though the court refused CBI's intervention years after the closure report was filed by CID, Bhopal, the Division bench deemed it fit to impose a cost of Rs 1,00,000/- on the State Police Department.

Justices Vivek Rusia and Rajendra Kumar Vani expressed disapproval of the manner in which the Police Department handled the Missing/ Death case of her son.

“…it is nothing but insensitivity on the part of the Police department. There is no explanation given by the Police before the writ Court, as well as before this Court as to why no action was taken on the complaint made by the petitioner about the missing of her son. Therefore, the cost of Rs,20,000/- [in writ petition] deserves to be increased to Rs.1,00,000/- (Rupees one lac only)”, the judges observed.

The appellant woman is now deceased and she is represented through her legal heirs. According to the appellant, her son succumbed to death due to torture in police custody. To cover up the gruesome incident, a fake encounter story was given publicity by the police officials, according to the appellant. Many police personnel, including the then S.P M.K Mudgal, were named in the fake encounter controversy, which allegedly occurred in 2007.

The court inferred that the closure report has not been examined by the special court so far due to the absence of Investigating Officer, Virendra Kumar. After perusing the government's status report regarding his postings in Bhopal and Delhi from 2013-2024, the court noted that he is currently posted as SP in Datia itself.

“…Surprisingly, he could not get one or two days time to appear before the Court since 2012. Most of the time, he remained on deputation but did not care to appear before the Special Court so that the learned session Court could examine the closure report”, the court added that even the initial cost of Rs 20,000/- was not paid to the appellant who expired awaiting justice.

As further steps, the court has instructed the DGP to examine why the investigation officer caused a delay of 12 years to appear before the Special Court. The Special Court was unable to accept or reject the closure report due to the non-appearance of Virendra Mishra who was the investigating officer. Therefore, the court has also recommended suitable action against the erring police official.

Before the High Court, the appellant contended that the investigation carried out by the Crime Investigation Unit only covered offences under the Arms Act. No initiative has been taken by the investigation team to look into the primary aspect of the illegal arrest and death of her son. The team also filed a closure report under MP Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam (1981) in 2012, but the same has not been examined by Datia Sessions Court even after the lapse of 12 years, the appellant submitted.

According to the state, it was A police officer with the rank of Superintendent that led the investigation team of CID, Bhopal. The background of Khushali Ram was marred by his involvement in two criminal cases for offences under Sections 394 and 364 IPC [Sections 309(6) and 140 of BNS], the additional advocate general remarked. The state asserted that Khushali Ram was also known as Kalia alias Brijkishore, and he was indeed a dacoit.

“…In the CID investigation, police found that Khushaliram alias Kalia was also a member of a dacoit Amar Singh Jat gang, who died in the said encounter. The writ Court has rightly observed that it is not a case which deserves to be transferred to the CBI. Now after the lapse of so many years, it would not be fit to consider the matter for reinvestigation by the CBI”, the bench sitting at Gwalior opined after hearing both sides.

Background

According to the appellant, all her three sons were taken out of their house in the middle of the night by police officers of Dabra in April 2005. No criminal cases were registered against any of them, even after taking them into allegedly illegal custody. Two of her sons were subsequently released within 5 days as a result of representations made by the appellant to the higher authorities. Her third son, Khushali Ram, remained in wrongful confinement.

Later, a newspaper cutting dated 05.02.2007 showed the pictures of two dacoits who were supposedly killed by the police in an encounter, namely 1) Kalia alias Brij Kishore, and 2) Amar Singh Jat. Seeing the newspaper, the appellant/petitioner realized that it was her son Khushali Ram, who was shown as Brij Kishore in the newspaper. The police personnel involved in the encounter were even rewarded by the state government for the encounter.

Though the appellant apprehended the police regarding her third son, the police took the stance that it was indeed the dacoit named Brijkishore who was killed. She made a representation to higher officials for a fair investigation regarding the allegedly forged encounter. Later on, the appellant even came to know that Brijkishore was alive elsewhere and lodged in jail for another offence. Hence, the mother preferred a writ petition for an impartial investigation by the CBI.

The High Court ordered a magisterial enquiry firstly, and the magistrate furnished the enquiry report on 13.08.2007. Another report filed by Addtl. SP confirmed the death of dacoit Brijkishore. After analyzing the reply and reports, the single-judge bench entrusted the investigation of the encounter to the Crime Investigation Wing and denied the prayer for CBI intervention. The court directed an impartial investigation and ordered the state to pay Rs 20,000/- as cost for inaction with respect to the death of the petitioner's son.

Later, the petitioner filed the writ appeal, saying that the investigation so far had been unsatisfactory and CBI's entry was essential to investigate the allegations against the state's police officers.

Advocates for the Appellants: Advocates Jitendra Sharma And Sushil Goswami

For Respondents 1-4: Ankur Mody, Additional Advocate General

Case Title: Smt. Janka Kewat (Deleted) Through Lr Shri Balkishan v. Union Of India And Others

Case No: Writ Appeal No. 87 Of 2011

Citation: 2024 LiveLaw (MP) 141

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