[2011) 3 S.C.R. 970

RAVINDRA PAL SINGH

SANTOSH KUMAR JAISWAL & ORS.

(TRANSFER PETITION (CRIMINAL) NO. 222 OF 2010)

MARCH 17, 2011

[B. SUDERSHAN REDDY AND SURINDER SINGH

NIJJAR, JJ.]

CODE OF CRIMINAL PROCEDURE, 1973:

s. 406 - Tranfer petition - Complaint against police officials for killing a man in an alleged fake encounter in Dehradun - Investigation entrusted to CBI - Father of deceased seeking transfer of case to Ghaziabad!Lucknow -

0 Held : It is necessary to ensure that there is no possibility of any undue influence being exerted by the respondents on the prosecution - The complainant has made a serious grievance about the manner in which the prosecution has been conducted - Prayer for transfer of the case to Ghaziabad/ Lucknow has been resisted by the respondent expressing E similar apprehension about undue influence being exerted by the petitioner - Case is, therefore, transferred from the Court of Special Judicial Magistrate, CBI, Dehradun to the Court of Special Judge, CBI, Delhi.

F The son of the transfer petitioner was stated to have been killed in a fake encounter by the police in Dehradun.

The petitioner got registered an FIR against the respondents-police officials, but as there was no progress, the investigation was entrusted to CBI.

G However, the police officials were stated to have continued to exert influence on investigation. It was alleged by the petitioner that he was threatened by the local police and he could not even engage an advocate to file an application for cancellation of bail of the H respondents. 970

RAVINDRA PAL SINGH v. SANTOSH KUMAR

JAISWAL & ORS.

Disposing of the petition, the Court

HELD:

In the peculiar facts and circumstances of the case,

it is necessary to ensure that there is no possibility of any undue influence being exerted by the respondents on the B prosecution. The complainant has made a serious grievance about the manner in which the prosecution has been conducted. The Court 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 C 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. The prayer made by the petitioner was for o transfer of the case to the CBI Court at Ghaziabad/ Lucknow. However, the accused have also 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 E interest of justice it is deemed appropriate to transfer the case to Delhi. Case 1; rime No. 3 of 2010 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, Delhi, for trial or its assignment to an F appropriate court, as the Special Judge may consider it flt and proper. [para 6-7) [976-B-F]

CRIMINAL' ORIGINAL JURISDICTION : Transfer Petition (Criminal) No .. 222 of 2010.

Petition Under Section 46 Code of Criminal Procedure.

A.T. Raom and A. Subba Rao for the Petitioner.

Gopal Subramanium, S.G. P.P. Malhotra, ASG, Sushi!

A Kumar, Brijender Chahar, Rajat Khattry, Vinay Arora, Aditya Kumar, Vivek Kochar, S.S. Rawat, Sanjay Jain, Shweta Verma, Aman Ahluwalia, Subramonium Prasad and Arvind Kumar Sharma for the Respondents.

B The Judgment of the Court was delivered by

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, C 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 arrested by the Police of Police Station Dalanwala at around 1312 hrs.

According to the prosecution, this can be seen from the record o 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 Sar.tosh Kumar Jaiswal (A 1) had fired 2 bullets from his service E 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; Nltin 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 F 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 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, A namely, Ajay Singh C.O. Dalanwala that if he tries to interfere in the matter, he would also be eliminated iike 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 B to perform his last rites. After performing the last rites of his son, the complainant came back to DBhradun 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 c investigation. However, the police officials continue to exert irifluence even on the investigation 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 D the police officils. It was alleged that Ranbir Singh and his coaccused 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 conspirc:cy with his friend Shekhar Tyc:gi, Ram Kumar, Ashok E 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 wem said to be in possession of on~ katta. They had reached Dehradun on 2nd Ju:y, 2009. They had planned F to comm; t t!le robary on 3rd Ju:y, 2009. It was further tha case of the respc:iC:e:-!l-> t!lat the deceased and his friends had stayed at FIJt No.9 of Jain Dharamshala, Gandhi Road, Oehmdu:i on the night of 2nd tul}', 2009. On 3rd July, 2009,

they--~~ th~ Jain 0:1aramshala at about 1230 hrs. At that time, G the dece.~$cd nnd hl:; friend were carrying a black bag containir.g '.:::: ..... , ropes and "cello tape" etG. on a motcr cycle.

They w2re being fol:.:>wed by R:am f<:umar. As:1ok had been sent to see the lane in \'ihich the house of Kavita Saxena was located. Th3y were waitir.g for Ashok to c:>rne batk with the H

A information at a place near Gurudwara on Mohini road. At about 1245 hrs. they were met by G.D. Bhatt, S.I. lncharge 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 B 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. c According to the respondents, the deceased was killed in an encounter with the police personnel in cross firing.

Consequently, an FIR was registered against the decec::"'ed and his associates on 3rd July, 2009 under Section 394, in~.

Another FIR was also registered under Section 307 IPC

0 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, E 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 F 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 G posted at 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 H have been transferred out of Dehradun.

4. The justification given by the respondents is, however, A 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 8 Court granting bail to the respondents. The complainant apprehends that thfl 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 an advocate c t, o 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 D 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. Sushi! Kumar, learned counsel appearing for the respondents submitted that the deceased and his friends were in possession of lethal E 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 F between the deceased and the police and in the process, the deceased snatched the service revolver 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

c..ullets in the cross fire. Learned counsel further submitted that G mert.:'y because the accused in the case are police officials would nv, 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 H

A 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 complainant has made a serious grievance about the manner in which the prosecution C 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 b~ ensured by transferring the criminal case out of the arc~. in D which no allegations could he 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, E 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 F 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, Delhi, for trial or its assignment to an appropriate court, as the Special Judge may consider it fit and proper.

R.P.

Transfer Petition disposed of.·