1 Cri-A-5283-10-&-Ors.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 5283 OF 2010 Ramprasad Vishwanath Gupta ... Petitioner Vs. 1. Prakash Ganpat Kadam 2. The State of Maharashtra ... Respondents CRIMINAL APPLICATION NO. 5284 OF 2010 Ramprasad Vishwanath Gupta ... Petitioner Vs. 1. Devidas Gangaram Sakpal 2. The State of Maharashtra. ... Respondents CRIMINAL APPLICATION NO.5285 OF 2010 Ramprasad Vishwanath Gupta ... Petitioner Vs. 1. Anand Balaji Patade 2. The State of Maharashtra ... Respondents CRIMINAL APPLICATION NO. 5303 OF 2010 Ramprasad Vishwanath Gupta ... Petitioner Vs. 1. Pandurang Ganpat Kokam 2. The State of Maharashtra ... Respondents CRIMINAL APPLICATION 5304 OF 2010 2 Cri-A-5283-10-&-Ors.sxw Ganesh Ankush Harpude, The State of Maharashtra ... Respondents Shri R.V.Gupta, applicant in person present in Court. Shri M.K.Kocharekar, i/b. Shri Rajiv Sawant, Advocates, for the respondent No.1 (except Appln. No.5285/2010). Shri H.H.Nagi, i/b. H.H.Nagi & Associates, Advocates for respondent No.1 (in Appl. No.5285/2010) Shri R.N.Misra, Spl. P.P. a/w Shri S.A. Shaikh, APP, for the Respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 21st January, 2011. P.C. 1. These five Applications are filed by the original complainant/first informant Ramprasad Vishwanath Gupta for cancellation of bail granted by the Sessions Court to accused No.13 Police Constable Devidas Sakpal, accused No. 16 - Head Constable Prakash Kadam, accused No.17 PSI Ganesh Harpude, accused No.18 - PSI Anand Patade and accused No.19 Constable Pandurang Kokam by orders passed on different dates in Sessions Case No.317/2010. 2. Prosecution case, in brief, is that deceased Ramnarayan Gupta was the brother of complainant Ramprasad Gupta. In the afternoon of 11.11.2006, Ramnarayan and his friend Anil Bheda were abducted by four or five well-built 3 Cri-A-5283-10-&-Ors.sxw persons, who appeared to be policemen, by forcibly loading him in a a silver coloured Qualis Car. The complainant sent telegram and fax messages to different authorities in the name of wife of Anil Bheda or himself complaining that Anil Bheda and Ramnarayan Gupta were abducted by some persons, who appeared to be policemen and there was danger to life of both of them. In the evening at about 8.15 p.m. a breaking news was flashed on T.V. that Ramnarayan Gupta was killed in an encounter with the police at Nana-Nani Park near Versova. Anil Bheda was illegally detained at different places for about 30 days. After he was released, it was revealed that Anil Bheda and Ramnarayan Gupta were initially taken to D.N.Nagar Police Station and at about 7 p.m. Anil Bheda was taken away from the police station by a vehicle by some policemen and was kept away from the police station for about 1-1/2 hour or 2 hours. In the evening at about 9 p.m., Anil Bheda was brought back to D.N.Nagar Police Station. At that time, he noticed that some police officers and staff were keeping their fire arms and blood stained clothes in a room. Later on, Anil Bheda was detained for about 30 days at different places including at Hotel Mid Town situated in Andheri. The complainant moved several authorities complaining that his brother was murdered, but no action was taken by the authorities concerned. He finally filed a Writ Petition, being W.P. No.2473/2006 under Article 226 of the Constitution of India and by an order dated 13.2.2008, the Division Bench of this Court directed 4 Cri-A-5283-10-&-Ors.sxw that enquiry be made by Metropolitan Magistrate as required under Section 176(1-A) of the Code of Criminal Procedure. The Metropolitan Magistrate, after holding the enquiry came to conclusion that Ramnarayan Gupta was shot dead by the police after he was abducted and when he was in police custody. He also held that the false FIR was lodged by accused No.9 Police Inspector Pradip Suryavanshi of D.N.Nagar Police Station to show that Ramnarayan Gupta was killed in an encounter with Police. when on being police asked to surrender, he fired against the police when he was in police custody, and that it was filed only to cover up the murder of Ramnarayan Gupta. After the enquiry report was submitted, the Division Bench of this Court by order dated 13.8.2009 in the aforesaid Writ petition constituted a special investigation team for investigation of this case. Mr. K.M.M.Prasanna, DCP, Mumbai City, was appointed as Investigating Officer and he was directed to record the statement of the complainant and to treat that statement as FIR. Accordingly, statement of the complainant was recorded on 20.8.2009 and investigation was carried out. 3. During investigation, it was revealed that accused No.1 Police Inspector Pradip Sharma, accused No.9 - PI Pradip Suryawanshi and accused No. 14 - Janardan Bhanage, had entered into conspiracy to eliminate Ramnarayan Gupta. It appears that accused No.14 Janardan Bhanage had some personal 5 Cri-A-5283-10-&-Ors.sxw 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. Accused No.11 API Nitin Satape and accused no.22 PSI Arvind Sarvankar claimed to have fire 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 are sought to be cancelled, are said 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. 4. On behalf of prosecution, it is pointed out that in the FIR lodged by 6 Cri-A-5283-10-&-Ors.sxw P.I. Pradip Suryavanshi showing the killing of Ramnarayan Gupta in encounter at Nana-Nani Park, he had given names of police officers and police staff, who were in that team. Names of accused Nos.13,16, 17, 18 and 19 are shown in the said FIR. On the basis of that entry was taken in the station diary, where also 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. 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 encounter. The learned Counsel also pointed out that there is sufficient material to show that these persons were involved in the commission of crime. 5. On the other hand, the learned Counsel for the accused persons vehemently contended that once the Sessions Court had granted bail by giving plausible reasons, the bail cannot be cancelled unless there are very strong circumstances and reasons. According to them, it was always the plea of the 7 Cri-A-5283-10-&-Ors.sxw police officers and staff that Ramnarayan Gupta, who was the hardened criminal with number of cases against him, was absconding and on that day P.I. Suryavanshi got information from some informant that said Ramnarayan Gupta was likely to visit Nana Nani Park and therefore he formed a group of the police officers and went there to arrest him. However, when Ramnarayan Gupta was asked to surrender, he fired against the police officers and therefore it became necessary for the police party to fire at him and therefore it was a genuine encounter and that he was not killed while in police custody. 6. In Bhagirathsinh s/o Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 SCC 284 and Dolat Ram and Ors. vs. State of Haryana (1995) 1 SCC 349 and Ramcharan vs. State of M.P. (2004) 13 SCC 617, the Supreme Court has from time to time held that the consideration of cancellation of bail is different from the consideration for grant of bail. It has been held that bail can be cancelled only on existence of cogent and overwhelming circumstances, but not on reappreciation of the facts of the case. It is also settled that cancellation of bail should not be by way of punishment even if prima facie case against the accused is established. On the other hand, the prosecution contended that while granting bail, the Court has to look into the nature and gravity of charges, the character, behaviour, means, position and standing of the accused and reasonable 8 Cri-A-5283-10-&-Ors.sxw apprehension of the witnesses being tampered with. For this, the learned Counsel for the prosecution relied upon Anil Kumar Tulsiyani vs. State of U.P. and Anr. (2006) 2 SCC (Cri) 565 wherein the Supreme Court observed thus in paras 10 and 11 :- "10. By now it is well-settled principle of law that one of the considerations in granting bail in non-bailable offences is the gravity and the nature of the offence. The High Court has not at all addressed to this issue while granting bail to the respondent. 11. This Court in state of U.P. v. Amarmani Tripathi in which one of us (Raveendran,J) was a member has considered various decisions of this Court and observed that the circumstances to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable 9 Cri-A-5283-10-&-Ors.sxw apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail" (SCC p.31, para 18)" In that case, bail was granted to the accused, who was an Advocate and that order was challenged before the Supreme Court. The Supreme Court held that the respondent i.e. accused being an advocate was in commanding position and had standing in the society. In this background, there was reasonable apprehension of the witnesses being tampered with, coerced, threatened or intimidated by using his influence. As these circumstances were not considered by the High Court while granting bail, the Supreme Court set aside that order and cancelled bail. 7. On behalf of the accused, it was argued that the deceased had criminal antecedents. However, the learned Counsel for the prosecution contended that even if it is assumed that he had criminal record, still after taking him in custody police had no authority to kill him and if the police officers and staff involved in unlawful elimination are granted bail, they, by virtue of their authority and power and most of them being members of encounter teams of the 10 Cri-A-5283-10-&-Ors.sxw police, may pressurise the witnesses and may cause danger to the life of the surviving witnesses. 8. In Dinesh M.N. (S.P.) vs. State of Gujarat 2008 Cri.L.J.3008, a police officer was granted bail in the case of fake encounter of Sohrabuddin, who had allegedly shady reputation and criminal antecedents. The High Court, after consideration of the material on record, cancelled the bail and that order was challenged before the Supreme Court. The Supreme Court dismissed the appeal and observed thus in para 14 :- "14.... In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered." The Supreme Court also observed in para 12 that even though reappreciation of evidence as done by the Court granting bail is to be avoided, the Court dealing with application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. The relevant material, if not taken into 11 Cri-A-5283-10-&-Ors.sxw consideration, can also be looked into by the Court dealing with application for cancellation of bail. 9. The learned Sessions Judge, while granting bail to the accused persons, who are respondents in these applications, generally observed that the FIR was lodged by accused No.9 PI Pradip Suryavanshi and accordingly entry was taken in the station diary. According to to the learned Sessions Judge, none of these accused persons had any control over lodging of that FIR by PI Suryavanshi or on taking entries in the station diary and none of them had personally taken any entry in the station diary about their presence. In para 17 of the order dated 22.11.2010 granting bail to accused No. 16 Prakash Kadam, the learned Sessions Judge observed thus :- "17. It may be noted here that this material may be sufficient to frame a charge u/s 120B of IPC against the applicant. However, it is also possible that this evidence may not be sufficient to prove the case against the applicant beyond all reasonable doubts. This being the nature of the evidence, I do not see any reason to keep the applicant as an undertrial prisoner......" 12 Cri-A-5283-10-&-Ors.sxw Even though these observations are not repeated in the orders granting bail to other accused persons, the learned Sessions Judge appears to have dealt with the bail applications with the above view in his mind. While considering the application for bail, the Court has to consider the material only to find out whether any prima facie case is made out or not. Similarly, at the time of framing charge also the Court has to consider the material just to find out whether prima facie case is made out or not for framing the charge. At the time of considering the application for bail, the Court is not expected to consider the prosecution evidence minutely and particularly the defence of the accused, to come to conclusion whether the material is sufficient to prove guilt of the accused beyond reasonable doubt. From the above referred observations, it appears that the Court came to conclusion that the material may be sufficient to frame a charge of conspiracy under Section 120B of IPC. In this case, charge is about murder of Ramnarayan Gupta as per conspiracy for that purpose. Therefore, the prosecutin is for the offence under Section 302 read with Section 120B IPC. Having come to conclusion that the material may be sufficient to frame the charge, it was not only inappropriate but absolutely wrong on the part of the trial Court to say that evidence may not be sufficient to 13 Cri-A-5283-10-&-Ors.sxw prove the case against the accused beyond all reasonable doubt. That was not the stage to consider the material from the angle as to whether the accused could be convicted after applying the standard of proof required in the criminal case. 10. The learned Sessions Court observed that as far as accused No.16 - Prakash Kadm is concerned, only role attributed to him is that he had guarded the witness Anil Bheda in the vehicle for some time. The learned Sessions Judge appears to have ignored the fact that according to the prosecution, Head Constable Prakash Kadam had joined the abductors at about 4.30 p.m. and from that time he was guarding Anil Bheda in the vehicle. He had come to the police station and he was also with him when he was taken away from the police station, during the time from 7 p.m. to about 9 p.m., during which the police team appeared to have taken away Ramnarayan Gupta from the police station to some unknown place, where he was shot dead. Not only this, Prakash Kadam was also guarding Anil Bheda when he was confined at different place, including at Hotel Mid Town, for a period of about 30 days. Anil Bheda was illegally detained during that period by the police only because he was the eye-witness of abduction himself 14 Cri-A-5283-10-&-Ors.sxw and Ramnarayan Gupta from Vashi and this evidence of Anil Bheda would be very important for the prosecution, as according to prosecution, Ramnarayan Gupta was killed in a fake encounter while in police custody and not in a genuine encounter at Nani Nani Park as claimed in the FIR lodged by PI Suryavanshi. The accused No.16 Prakash Kadam must be a confidant of the officers who had hatched the conspiracy of murder and had executed. That is why he was given a very responsible duty of guarding Anil Bheda in keeping away from the police station when Ramnarayan Gupta was to be taken away for the purpose of elimination. 11. 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 15 Cri-A-5283-10-&-Ors.sxw 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 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 16 Cri-A-5283-10-&-Ors.sxw Ramnarayan Gupta was killed. In view of this, presence of PSI Patade in the team which executed the said plan and killed Ramnarayan cannot 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 encounter team. 12. The learned Counsel for the accused contended that these accused persons were not present at the time when Ramnarayan Gupta was shot dead. According to him, because the superior officer PI Suryavanshi had filed the FIR in a particular way, these officers and staff were obliged to take same stand in their various applications and petitions before the different Courts and the Supreme Court. I am unable to accept this contention. If these persons were not involved and were not present in the alleged encounter, they could have taken a plea 17 Cri-A-5283-10-&-Ors.sxw that they were not present at the time of alleged encounter. The accused cannot claim to have taken false plea before the High Court or the Supreme Court at least at this stage. However, a the same time, it is to be noted that the story of encounter was prima facie, cooked to cover the murder and to defend the police officers and staff and the FIR was lodged by PI Suryavanshi, who himself was one of the police officers who had fired. In my opinion, though the story of encounter appears to be false, the FIR may be looked into after circumstance which may provide corroboration to prosecution story, while granting or refusing bail. 13. I have pointed out that as far as accused Nos. 16, 17, 18 and 19 are concerned, there is sufficient material to 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 he conspiracy. However, it 18 Cri-A-5283-10-&-Ors.sxw cannot be forgotten that he was one of the petitioners before the Supreme Court who 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. 14. Learned Counsel for accused No.18 - PSI Patade produced a statement about the calls from his mobile. According to him, he was given different duties on 11.11.2006 and he was located at different places as can be seen from the said record. He points out that he was at ESIC Nagar from 6.55 till 7.28 p.m. and at 9.03 p.m. he was near Nana Nani Park. According to him, this shows that PSI Patade was not present at the scene of offence at Nana Nani park between 7 p.m. to 8.15 p.m. when Ramnarayan Gupta was shot dead. The learned Counsel presums that Ramnarayan Gupta was killed at Nana Nani Park. In fact, that is the story created by PI Suryavanshi that Ramnarayan Gupta was shot dead in an encounter at Nana Nani Park. In fact, the prosecution material collected during the investigation shows 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 19 Cri-A-5283-10-&-Ors.sxw some unknown place. At 9 p.m. some police officers came back to the police station and deposited their weapons and kept their blood stained clothes. Prosecution is not in a position to establish whee actually Ramnarayan Gupta was killed. As pointed out earlier, at 6 p.m. PSI Patade had collected weapon and ammunition at D.N.Nagar Police Station and as per Station Diary entry they left the police station at 18.55 hrs. During the period from 6.55 p.m. to 7.28 p.m. he was located in ESIC Nagar. It is important to note that there is no record of any call