Bombay HC Sets Aside State Govt's Order U/S 432 To Release 11 Cops After Conviction In Fake Encounter Case [Read Judgment]

The said order dated December 2, 2015, was passed by the Deputy Secretary, Home Department. It was challenged by the deceased's brother, Advocate Ramprasad Gupta in the present writ petition and the matter came up before the bench of Justice SC Dharmadhikari and Justice Revati Mohite Dere.

Case Background

The deceased was said to be a member of the Chhota Rajan gang. According to the prosecution, he was abducted along with one Anil Jethalal Bheda by the police belonging to the DN Nagar Police Station and Versova Police Station on November 11, 2006. Thereafter, Gupta was murdered by being shot at close range, whereas Anil Bheda was released after a month.

The police attempted to portray that Ramnarayan's death took place in an encounter, near Nana Nani Park, 7 Bungalow, Versova, Andheri, Mumbai, and accordingly, an FIR was registered with the Versova Police Station against the deceased himself under Section 307 of the Indian Penal Code.

Within a week of the alleged encounter, the petitioner filed a writ and prayed for directions to the police to register an FIR against the officers and also sought transfer of the investigation to the CBI, as it was a fake encounter.

The National Human Rights Commission (NHRC) had taken cognizance of the petitioner's complaint alleging fake encounter of his brother, hence the court adjourned the hearing of the petition, requesting the NHRC to complete its inquiry at the earliest. However, the high court was not satisfied by the magistrate's report.

Consequently, the court directed the Chief Metropolitan Magistrate to conduct an inquiry under Section 176(1A) of the CrPC. In his report, the CMM concluded that the encounter was indeed fake and that there was strong circumstantial evidence against the police officers.

Later, all the accused were convicted and sentenced to life, except Pradip Sharma, the original accused in the case, who was acquitted. The convicted cops then filed their appeals against the judgment.

Submissions

Dr. Yug Mohit Chaudhary appeared on behalf of the petitioner and argued that the said order to release the convicts was bad in law. He submitted that the state government had no such power to release/suspend the convicts under Section 432 CrPC till the expiry of 14 years. And even if such a power exists, it could not be exercised since the appeals were pending before the high court and the court is seized of the said appeals, Chaudhary said.

He then relied on a judgment of the Supreme Court in the case of KM Nanavati v. The State of Bombay, wherein it was held that the object of introducing Section 433A would be defeated if the State Government is permitted to release prisoners, as is sought to be done in the present case under Section 432 CrPC.

Senior Counsel MP Rao appeared on behalf of the State and Senior Counsel Amit Desai appeared on behalf of the 11 convicted police officials. While Rao defended the State government's order and submitted that the order was in consonance with Section 432 of CrPC, Desai submitted that the executive was well within its powers to invoke Section 432 since no application for suspension of sentences, was pending in any court at the time. He further submitted that suspension is an abeyance of sentence and is not equivalent to remission/commutation.

Judgment

The court noted that the state government had relied on the opinions/recommendations of the Special Judge, CBI, the Commissioner of Police, the Additional Director General of Police, Inspector General of Prisons, Maharashtra State and the report of the NHRC.

The bench further observed that the state was supposed to seek the opinion of the presiding judge VB Jadhavar under Section 432 instead the Special CBI judge's opinion was sought: "It is the State Government which ought to have approached the Presiding Judge, as contemplated under Section 432(2) and sought his opinion on suspension of the respondent Nos. 4 to 14's sentences. Instead, it is the jail authorities who approached the Sessions Court and sought an opinion, contrary to the mandate of Section 432(2) CrPC.

The opinion was not given by the successor of judge VB Jadhavar, but by the learned Special Judge, CBI MB Gosavi, and as such, the same was clearly in contravention of Section 432(2) CrPC."

The court concluded: "It appears that all agencies of the Government had submitted reports to facilitate the release of respondent Nos. 4 to 14, by submitting biased reports. In fact, even the impugned order does not reflect the subjective satisfaction of the Government to invoke its extraordinary powers under Section 432 CrPC, to suspend the sentences of respondents. The order only refers to the application made by respondent Nos. 4 to 14 and the reports obtained by different authorities. The impugned order shows not only non-application of mind, but also consideration of irrelevant factors and non-consideration of relevant factors.

In the aforesaid circumstances, judicial review of administrative action is warranted to uphold the rule of law, lest, it results in failure of justice. Courts cannot be expected to be silent spectators to such decisions, which are blatantly perverse and unsustainable in law."

Read the Judgment Here