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2014 Supreme(All) 3052
ALLAHABAD HIGH COURT
Arun Tandon, Shashi Kant, JJ.
Brajendra Kumar Gupta - Appellant
Versus
State of U. P. - Respondent
Criminal Misc. Writ Petition No. 6538 of 2014
Decided On : 27-05-2014
For the Appellant : Amit Kumar Srivastava
For the Respondents: Govt. Advt., Anurag Khanna
Headnote:
Criminal Conspiracy - Fake Encounter - Code of Criminal Procedure, Indian Penal Code - Section 156(3), 302, 201, 120-B, 307, 25 - The court discussed the application under Section 156(3) of the Code of Criminal Procedure, rejection by the Chief Judicial Magistrate, and subsequent orders for investigation. The High Court's decision to transfer the investigation to the CBI and the findings of the CBI were highlighted. The State Government's refusal to grant sanction for prosecution and the court's analysis of the CBI report and first information report were central to the decision.
Fact of the Case:
The petitioner, father of the deceased, sought investigation into a fake encounter involving police officers. The Chief Judicial Magistrate rejected the application, but the High Court directed reconsideration. The CBI found evidence of a fake encounter and submitted a charge-sheet. The State Government refused to grant sanction for prosecution, citing self-defense.
Finding of the Court:
The court found that the CBI's report and the first information report contradicted the State Government's decision. It concluded that the State Government failed to consider crucial evidence and quashed the impugned order. The State Government was directed to reconsider the issue of grant of sanction for prosecution.
Issues: The issues revolved around the rejection of the application under Section 156(3), the refusal of sanction for prosecution by the State Government, and the discrepancy between the CBI report and the State Government's decision.
Ratio Decidendi: The court emphasized that the State Government must consider all relevant facts, including the contents of the first information report and the CBI report, when deciding on sanction for prosecution. It highlighted the need for a fair investigation and the importance of re-examining crucial evidence.
Final Decision: The impugned order was quashed, and the State Government was directed to reconsider the issue of grant of sanction for prosecution. The writ petition was allowed with a cost of Rs. 50,000 to be paid by the State to the petitioner.
1. Heard Sri. Amit Kumar Srivastava, learned counsel for the petitioner, Sri. Gopal Chaturvedi, learned Senior Advocate, assisted by Sri. Azaz Ahmad, Advocate on behalf of respondent No. 4 and Sri. V.C. Mishra, learned Advocate General assisted by Sri. Ali Murtaza, learned Additional Government Advocate for the State-respondents. Petitioner, the father of the deceased, Mukul Gupta made an application under Section 156(3) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Bareilly stating therein that his son was a brilliant, educated man. He had no criminal antecedents. He was engaged in business of medicines. His son used to travel from Bareilly to other places for the purposes of his business. Respondent No. 4 J. Ravindra Gaur, Additional Superintendent of Police (Trainee), Bareilly wanted some certificate to please his senior police officers. He was eager to earn out of turn promotion. He hatched a conspiracy and set up a fake police encounter with the help of other police officers and informers (mukhbirs). It was stated that on 30th June, 2007 at 09: 00 a.m., the son of the informant namely, Mukul Gupta, while travelling on a Rikshaw, was intercepted by the Inspector, Kotwali and robbed of one Lac of rupees and mobile phone. Thereafter, he handed over Mukul Gupta to respondent No. 4, J. Ravindra Gaur. Respondent No. 4, who by setting up a false and frivolous encounter along with accompanying other officers, killed his son. In order to create a false case of encounter, J. Ravindra Gaur also lodged a first information report against Mukul Gupta under Section 307 of the Indian Penal Code and Section 25 of the Arms Act.
2. This application of the petitioner-informant under Section 156(3) of the Code of Criminal Procedure was rejected by the Chief Judicial Magistrate, Bareilly vide order dated 18th June, 2008. Not being satisfied, petitioner filed an application under Section 482 of the Code of Criminal Procedure before the High Court being Criminal Misc. Application No. 17364 of 2008. This application was granted by the High Court vide order dated 14th July, 2008. Order of the Chief Judicial Magistrate dated 18th June, 2008 was quashed. The magistrate was directed to reconsider the application filed by the petitioner.
3. The Chief Judicial Magistrate passed an order on 22nd August, 2008 for a first information being registered and offence being investigated.
4. In terms of the order of the Chief Judicial Magistrate, first information was registered amongst others against J. Ravindra Gaur being case Crime No. 571 of 2008 under Sections 302, 201 and 120-B of the Indian Penal Code, Police Station Fatehganj West, District Bareilly on 11th September, 2008.
5. It appears that local police, which initially investigated the offence, decided to submit final report in favour of the accused, however, on the insistence of the petitioner, investigation was transferred to SIS, Badaun vide order dated 10th August, 2008 passed by the Deputy Inspector General of Police, Bareilly Range, Bareilly. SIS, Badaun also intended to submit final report in favour of the accused.
6. At this stage, petitioner-informant filed Criminal Misc. Writ Petition No. 20275 of 2008 for transfer of the investigation of Case Crime No. 571 of 2008 to some other Investigating Agency. Writ petition was allowed by the High Court vide judgment and order dated 26th February, 2010 after hearing the learned counsel for the State. The High Court found it just and proper in the facts of the case to transfer the investigation to the Central Bureau of Investigation (hereafter referred to as the "CBI"). Order of the High Court is on record of the present writ petition as Annexure-4. Operative portion of the order of the High Court reads as follows:
"It is thus clear that even though the investigation is continuing, the conclusion has already been expressed in the said paragraph. The apprehension of the petitioner does not appear to be without any foundation
