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2012 Supreme(All) 2506
ALLAHABAD HIGH COURT
S.C.Agarwal, J.
Dinesh Kumar Singh -Appellant
Versus
State of U.P. -Respondent
Criminal Misc. Bail Application No. 23635 of 2012
Decided On : 21-09-2012
Counsel for the Applicant : Manoj Kumar Singh, Santosh Kumar Rai.
Counsel for the Opp. Party : Sau-rabh Srivastava, A.G.A.
The main legal point established in the judgment is the consideration of bail in a case involving a police officer accused of a fake encounter, based on the circumstances and without expressing any opinion on the merits of the case.
Headnote:
fake encounter - Criminal Law - Indian Penal Code, 1860, Section 166, 167, 192, 218, 330, 342, 201, 302/34 - The court discussed the provisions of the Indian Penal Code related to the case, including sections 166, 167, 192, 218, 330, 342, 201, and 302/34. It highlighted the evidence regarding the alleged fake encounter, forensic reports, and statements of witnesses to determine the bail application.
Fact of the Case:
The applicant, a police officer, was involved in a case of a fake encounter where a person was allegedly killed. The bail application was opposed by the state and the complainant, citing evidence of a fake encounter and forged affidavits.
Finding of the Court:
The court found that, without expressing any opinion on the merits of the case, it was a fit case for bail considering the circumstances and the fact that other members of the police party had been granted bail.
Issues: The issues revolved around the authenticity of the encounter, the forensic evidence, and the statements of witnesses. The court also considered the possibility of the deceased committing suicide or being shot by the applicant.
Ratio Decidendi: The court's decision was based on the applicant's status as a police officer, the remote chances of fleeing from justice, and the circumstances of the case, without expressing any opinion on the merits of the case.
Final Decision: The applicant was granted bail with specific conditions.
Heard Shri Manoj Kumar Singh, learned counsel for the applicant, learned A.G.A. for the State and Shri Saurabh Srivastava, learned counsel for the complainant and perused the material available on record.
2. Learned counsel for the applicant submitted that the incident is alleged to have taken place on 6.1.2006 at about 10:00 a.m., whereas the FIR was lodged after more than 7 months on 19.8.2006 regarding a fake encounter by the applicant. On the date of incident, i.e. on 6.1.2006, applicant was posted as Station Officer Incharge, P.S. Katra, District Shahjahanpur. An information was received regarding a kidnapping on wireless set and the applicant along with constable 604 Kamlesh Kumar and constable 150 Suresh Chandra proceeded by jeep no.UP27D-2473 along with its driver Anjani Kumar Pandey towards Gadiya Rangeen road and started checking. At about 11 a.m., one motorcycle with three occupants was found coming from the side of Gadiya Rangeen. Seeing the police force, the motorcycle retreated and started back. The police party started chasing them. About one kilometer prior to Gulab Nagar, the motorcycle fell down in the canal and the occupants of the motorcycle started firing towards the police party. The nearby villagers were called by the police and miscreants were surrounded. The miscreants entered the arhar field of Moti Yadav. There was cross firing from both the sides. Two miscreants named Pankaj and Kamlesh Saxena surrendered and the dead body of the third person was found in the field with a firearm injury on the forehead and a country made pistol was in the hand of the dead body. The number plate of the motorcycle was hidden by a paper taped on it. The case was registered. Subsequently, on a complaint of it being a fake encounter, a Magisterial inquiry was held, which also exonerated the applicant.
3. Learned counsel for the applicant submits that according to the report of Forensic Science Laboratory, Lucknow dated 10.9.2007, the empty cartridges found in the country made pistol were not fired from the same pistol. The injury on the person of the deceased could have been caused by 9 mm pistol. Subsequently, CB-CID sought an expert opinion from State Medico Legal Expert, Lucknow, who submitted a report on 28.8.2008 stating therein that the injury of the deceased could have been caused by suicide and it was not possible to fix the bore of the weapon from the injury. It was, however, stated that the injury of the victim was not caused by a rifled barrel and injury was caused by contact or close contact fire.
4. It was further submitted that other members of the police party i.e. Kamlesh Kumar, Suresh Chandra and Anjani Kumar Pandey have been granted bail by another Bench of this Court vide orders dated 23.4.2012, 27.4.2012 and 14.5.2012 respectively in criminal misc. bail applications no.9840, 10506 and 11709 of 2012.
5. Learned A.G.A. as well as learned counsel for the complainant strongly opposed the prayer for bail and submitted that it is a case of fake encounter. The applicant was issued a 9 mm pistol and the death of the victim could have been caused by fire shot by aforesaid pistol. There was no occasion for the deceased to commit suicide. It was a cold blooded murder. Other members of the police party had rifles, but no rifle injury was found and the applicant had surrendered after a considerably long time.
6. It was further submitted that during the course of Magisterial inquiry, the applicant managed to get prepared forged affidavits of various villagers in support of the police case, but such villagers, during investigation by the CB-CID, disowned their affidavits.
7. Statements made by Pankaj and Kamlesh Saxena, who were apprehended at the time of incident by the police, were recorded during Magisterial inquiry and these statements are annexure-5 to the counter affidavit. Both these witnesses have admitted that they as well as the deceased were going on a motorcycle. The police was chasing them b
