PRAKASH KADAM AND ETC. ETC.versusRAMPRASAD VISHWANATH GUPTA AND ANR.

                         (2011] 6 S.C.R. 800


A               PRAKASH KADAM AND ETC. ETC.
                                   v.
          RAMPRASAD VISHWANATH GUPTA AND ANR.
            (Criminal Appeal Nos.1174-1178 of 2011)
                             MAY 13, 2011
B
     [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

         Code of Criminal procedure, 1973:

c       s. 439 - Bail - Allegation against accused-policemen that
  they functioned as contract killers and killed the victim-
  deceased in fake encounter- Bail granted by Sessions court
  - Cancellation of bail by High Court - On appeal, held: The
  version of accused that the deceased was shot in a police
  encounter was found to be false during investigation - The
0
  prosecution material collected during investigation prima
  facie indicated that the deceased was abducted by accused
  during the day time and was taken to the police station and
  from there he was taken to some unknown place where he was
E shot dead - This was a very serious case wherein prima facie
  some police officers and staff were engaged by some private
  persons to kill their opponent i.e. the deceased and the police
  officers and the staff acted as contract killers for them - If such
  police officers and staff can be engaged as contract killers to
  finish some person, there may be very strong apprehension
F in the mind of the witnesses about their own safety - This
  aspect was completely ignored by the Sessions Judge while
  granting bail to accused - High Court was perfectly justified
  in canceling the bail to the accused.
G      s.439 - Bail - Grant and cancellation - Considerations
  for - Held: It is not an absolute rule that the considerations
  for cancellation of bail is different from the consideration of
  grant of bail and it depends on the facts and circumstances
  of the case - In considering whether to cancel the bail, the
H                                800
PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 801
           VISHWANATH GUPTA
Court has to consider various factors such as the gravity and     A
nature of the offence, prima facie case against the accused,
the position and standing of the accused etc. - If there are
very serious a/legations against the accused his bail may be
cancelled even if he has not misused the bail granted to him
- The said principle applies when the same Court which            B
granted bail is approached for canceling the bail - It will not
apply when the order granting bail is appealed against before
an appe/latelrevisional Court.

     Police firing: Fake encounter - Fake 'encounters' are        C
nothing but cold blooded, brutal murder by persons who are
supposed to uphold the law - In cases where a fake encounter
is proved against policemen in a trial, they must be given
harsh punishment - Sentence/Sentencing.

    Rule of law: Collapse of - Effect - Held: When rule of        D
law collapses, it is replaced by law of jungle - Idea of
Matsyanyaya-state of affairs where the big fish devours the
smaller one as dwelt upon in ancient Indian works (such as
Mahabharata) and by ancient Indian thinkers (Kauti/ya) -
Discussed.                                                        E

     The accused-appellants were the policemen
accused of a contract killing case pending before the
Sessions Court. They were charge sheeted for offences
punishable under Sections 302/34, 120-B, 364134 IPC. The
prosecution case was that the victim-deceased and                 F
accused no.14 were in common busi"ness and were close
to each other. Some differences arose between them and
it was alleged that accused no.14 decided to eliminate the
deceased in a false police encounter. For the said
purpose, he hired the services of other accused and               G
abducted the deceased and his friend on 11.11.2006. The
deceased and his friend were taken to the police station
whereafter the deceased was killed and his dead body
was thrown near Nana Nani park. The dead body, after
sometime was collected from the said place by the police          H
    802    SUPREME COURT REPORTS             [2011) 6 S.C.R.

A to create a false case of encounter. A case was registered
  on the same day i.e. on 11.11.2006 against the deceased
  on the complaint of accused no.9. In the said FIR, it was
  shown that accused no.9 and other police officers had
  gone to Nana Nani Park on the basis of certain
B information and the daceased was asked to surrender
  before the police and instead of surrendering, the
  deceased attempted to kill the police and in retaliation he
  was shot by them. It was also alleged that the deceased's
  friend was in custody of police for about a month.
c      The complainant was the brother of the deceased
  and was a practicing advocate. When he came to know
  about the incident of abduction of his brother, he started
  searching for his brother and in the meantime also sent
  telegrams to Police Commissioners indicating
D apprehension that his brother might be eliminated in a
  false police encounter. On the same day it was flashed
  on T.V. channels that the deceased was killed in police
  encounter. The complainant filed a writ petition to get
  directions from the High Court to the police to register a
E case in respect of death of his brother.

       The High Court directed the magistrate to make an
  inquiry under Section 176(1A), Cr.P.C. The magistrate
  after holding the inquiry submitted the report that the
F deceased was shot by the police in police custody. The
  report also stated that the death had not taken place at
  the spot alleged by police and that the deceased had not
  disappeared from the police custody before he was done
  to death, but the deceased was abducted by the police.
  The report also held that a false FIR was lodged by
G accused no.9 to show that the deceased was killed in a
  police encounter at Nana Nani Park and the FIR was filed
  to cover up the murder of the deceased. After the inquiry
  report was submitted by the magistrate, the High Court
  constituted a special investigating team. During
H
 PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 803
            VISHWANATH GUPTA
investigation, it was revealed that accused no.1 (who was       A
described as an 'encounter specialist), accused no.9 and
14 had entered into a conspiracy to eliminate the
deceased and other officers and some criminals were
involved in the execution of the said conspiracy.
Everywhere the accused had taken the plea that the              B
deceased 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 the alleged
encounter. The instant appeals were filed against the
judgment of the High Court by which the High Court              c
cancelled the bail granted to the appellants by the
sessions court.

    Dismissing the appeals, the Court

    . HELD: 1.1. It is not an absolute rule that the            D
considerations for cancellation of bail is different from the
consideration of grant of bail and it will depend on the
facts and circumstances of the case. In considering
whether to cancel the bail, the Court has also to consider
the gravity and nature of the offence, prima facie case         E
against the accused, the position and standing of the
accused, etc. If there are very serious allegations against
the accused his bail may be cancelled even if he has not
misused the bail granted to him. Moreover, the said
principle applies when the ~ Court which granted                F
bail is approached for canceling the bail. It will not apply
when the order granting bail is appealed against before
an appellate/revisional Court. [Paras 16, 17] [813-F-H; 814-
A-B]
    Bhagirathsinh slo Mahipat Singh Judeja vs. State of G
                           =
Gujarat (1984) 1 SCC 284 (1984) 1 SCR 839; Do/at Ram
                                                    =
and others vs. State of Haryana (1995) 1 SCC 349 (1994)
6 Suppl SCR 69; Ramcharan vs. State of M.P. (2004) 13
          =
sec 617 (2004) 13 sec 617 - relied on.
                                                        H
    804     SUPREME COURT REPORTS              (2011) 6 S.C.R.


A      1.2. There is no absolute rule that once bail is granted
  to the accused then it can only be cancelled if there is
  likelihood of misuse of the bail. That factor, though no
  doubt important, is not the only factor. There are several
  other factors also which may be seen while deciding to
B cancel the bail. [Para 18] [814-C]

       1.3. This was a very serious case and could not be
  treated like an ordinary case. The accused who were
  policemen were supposed to uphold the law, but the
  allegation against them was that they functioned as
C contract killers. Their version that the deceased was shot
  in a police encounter was found to be false during the
  investigation. [Para 19] [814-D-E]

         2.1. The examination of the material on record
D   showed that accused no. 11, 17 and 19 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 I ~o.33 was taken in the
E   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. showed that accused no.9, 11, 15,
    17, 18, 9 and 22 left the Police Station to go near Nana
    Nani Park to verify and to arrest a hardened criminal. The
F   3 police officers i.e. accused no.11, 17 and 19 were
    specially called from the Versova Police Station and they
    were in the team of the police officers and staff who
    accompanied accused no.9. This team left the police
    station at 18.55 hrs. as per the said entry and it appeared
G   that at about 8 to 8.15 p.m. the deceased was shot dead.
    At this stage, the defence of the accused is not required
    to be taken into consideration, because during the
    investigation, it was found that there was no encounter
    and the deceased was shot dead in a fake encounter.
H   This station diary No.25 of 18.55 hrs. would show that
PRAKASH KADAM AND ETC, ETC. v. RAMPRASAD 805
           VISHWANATH GUPTA·
accused No.17, 18 and 19 were the members of the team A
which killed the deceased. Not only that, as per the·
record of D.N.Nagar Police station, on 11.11 ;2006, at 6
p.m. accused no.9, 11 and 18 had collected weapons and
ammunition. Naturally, those weapons were collected by
the said officers to go to some pJace for a mission. e
According to them, they went to Nana Nani Park where
the deceased was killed. In view of this, the presence of
accused no.18 in the team which executed the said plan
and killed the decea,sed did not appear to be in doubt.
Merely because accused No.18 himself did not fire is not c
sufficient. Accused Nos. 17 and 19 were also members
of that team. These accused persons had consistently
taken a stand that they were present at the time of the said
encounter and this was clear from their stand taken
before the High Court as well as before the Supreme
                                                             0
Court in special leave petition filed by accused Nos. 13,
16, 19 and 21. In that SLP also they had stated that
accused Nos. 17 and 18 were also in the encounter team.
Therefore, there was a prima facie case against them.
[Para 20) [814-F-H; 815-A-H]
                                                             E
    2.2. As far as accused Nos. 16, 17, 18 and 19 were
concerned, there was sufficient material to prima facie
establish their role in this conspiracy and the alleged
execution of the deceased. Accused No.13 was allegedly
given duty of guarding the friend of the deceased at Hotel   F
Mid Town where he was detained illegally. Accused No.13
was one of the petitioners before the Supreme Court and
had claimed that he was a member of the encounter team
along with accused no.9 and others, and this admission
found corroboration from the contents of the FIR             G
registered by accused no.9 himself. In fact, the
prosecution material collected during the investigation
prima facie indicated that the deceased was abducted
during the day time and was taken to D.N.Nagar Police
Station and from there he was taken to some unknown          H
    806      SUPREME COURT REPORTS             [2011] 6 S.C.R.

A place where he was shot dead. At 9 p.m. some police
  officers came back to the police station and deposited
  their weapons and kept their blood stained clothes.
  [Paras 21, 22] [816-A-E]

       3. This was a very serious case wherein prima facie
8
  some police officers and staff were engaged by some
  private persons to kill their opponent i.e. the deceased
  and the police officers and the staff acted as contract
  killers for them. If such police officers and staff can be
  engaged as contract killers to finish some person, there
C may be very strong apprehension in the mind of the
  witnesses about their own safety. If the police officers
  and staff could kill a person at the behest of a third
  person, it cannot be ruled out that they may kill the
  important witnesses or their relatives or give threats to
D them at the time of trial of the case to save themselves.
  This aspect was completely ignored by the Sessions
  Judge while granting bail to the accused persons. The
  High Court was perfectly justified in canceling the bail to
  the accused-appellants. The accused/appellants were
E police personnel and it was their duty to uphold the law,
  but far from performing their duty, they appeared to have
  operated as criminals. Thus, the protectors have become
  the predators. [Paras 23, 24] [816-F-H; 817-A-B]

F         CBI vs. Kishore Singh 2010 (14) SCR 95 - relied on.

       4. In cases where a fake encounter is proved against
  policemen in a trial, they must be given death sentence,
  treating it as the rarest of rare cases. Fake 'encounters'
  are nothing but cold blooded, brutal murder by persons
G who are supposed to uphold the law. If crimes are
  committed by ordinary people, ordinary punishment
  should be given, but if the offence is committed by
  policemen much harsher punishment should be given to
  them because they do an act totally contrary to their
H
 PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 807
            VISHWANATH GUPTA
duties. It is imperative to mention that our ancient A
thinkers were of the view that the worst state of affairs
possible in society is a state of lawlessness. When the
rule of law collapses it is replaced by Matsyanyaya,
which means the law of the jungle. In Sanskrit the word
'Matsya' means fish, and Matsyanyaya means a state of B
affairs where the big fish devours the smaller one. All our
ancient thinkers have condemned Matsyanyaya vide
'History of Dharmashastra' by P.V. Kane Vol. Ill p. 21. A
glimpse of the situation which will prevail if matsyanyaya
comes into existence is provided by Mark Antony's c
speech in Shakespeare's 'Julius Caesar' quoted at the
beginning of this judgment. This idea of matsyanyaya
(the maxim of the larger fish devouring the smaller ones
or the strong despoiling the weak) is frequently dwelt
upon by Kautilya, the Mahabharata and other works. It 0
can be traced back to the Shatapatha Brahmana XI 1.6.24
where it is said "whenever there is drought, then the
stronger seizes upon the weaker, for the waters are the
law," which means that when there is no rain the reign
of law comes to an end and matsyanyaya begins to
                                                            E
operate. [Paras 25, 28, 29] [817-C-D-H; 818-A-D]

     Shanti Parva of Mahabharat Vo. 1 - referred to.Vo. 1;
'History of Dharmashastra' by P.V. Kane Vol. Ill p. 21 -
referred to.
                                                             F
                   Case Law Reference:
    (1984) 1 SCR 839        relied on           Para 16
    (1994) 6 Suppl SCR 69 relied on             Para 16
    (2004) 13 sec 617       relied on           Para 16      G
    2010 (14) SCR 95     relied on              Para 24
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1174-1178 of 2011.
                                                             H
    808       SUPREME COURT REPORTS                [2011] 6 S.C.R.


A       From the Judgment & Order dated 21.1.2011 of the High
    Court of Judicature at Bombay in Criminal Application Nos.
    5283-5285 & 5303-5304 of 2010.

      Vinay Navare, Keshav Ranjan (for Abha R. Shanna) for the
B Appellant.

          The Judgment of the Court was delivered by

          MARKANDEY KATJU, J.
          A curse shall light upon the limbs of men;
c         Domestic fury and fierce civil strife
          Shall cumber all the parts of Italy;
          Blood and destruction shall be so in use
          And dreadful objects so familiar
          That mothers shall but smile when they behold
D         Their infants quarter'd with the hands of war;
          All pity choked with custom of fell deeds:
          And Caesar's spirit, ranging for revenge,
          With Ate by his side come hot from hell,
          Shall in these confines with a monarch's voice
E         Cry "Havoc!" and let slip the dogs of war;
          That this foul deed shall smell above the earth
          With carrion mean, groaning for burial.
                  -   (Shakespeare: Julius Caesar Act 3 Scene 1)

F       1. Leave granted. Heard learned counsel for the appellants
    and perused the record.

        2. This case reveals to what grisly depths our society has
    descended.

G      3. This appeal has been filed against the impugned
  judgment and order dated 21.1.2011 passed by the High Court
  of Judicaure at Bombay in Criminal Application Nos. 5283-
  5285 and 5303-5304 of 2010 by which the High Court has
  cancelled the bail granted to the appellants by the Sessions
H Court.
PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 809
  VISHWANATH GUPTA [MARKANDEY KAT J.U, J.]
      4. The appellants are policemen accused of a contract         A
killing in Sessions Case No. 317/2010 which is pending before
the Sessions Judge, Greater Bombay. The appellants have
been charge-sheeted for offences punishable under Sections
302/34, 120-B, 364/34 IPC and other minor offences. The victim
of the offence is deceased Ramnaryan Gupta @                        B
Lakhanbhaiyya. The prosecution case is that the appellants
were engaged as contract killers by a private person to
eliminate the deceased.

     5. The case of the prosecution in brief is that the deceased   C
Ramnarayan Gupta and the accused No. 14, Janardan Bhange
were, once upon a time, very close to each other. Both of them
had been working as estate agents and, mainly their business
was to purchase land from the farmers whose land has been
acquired by the Government under the Land Acquisition Act
and to whom 12 percent of the land was given by the                 D
Government. This 12 percent of the land was being purchased
at meager price by the deceased and accused No. 14,
Janardan Bhange and was being sold on premium at later
stage. During the course of that business, both of them had
been exchanging the files pending with them for disposal            E
pertaining to the said land.

      6. There were some differences between the deceased
Ramnarayan Gupta and accused No. 14, Janardan and hence
it is alleged that the accused Janardan decided to eliminate        F
the deceased in a false police encounter. Hence, he hired the
services of the accused, and in pursuance of the said
conspiracy the deceased Ramnarayan Gupta and his friend Anil
Bheda were abducted on 11.11.2006 from near a shop named
Trisha Collections at Vashi, New Bombay by 4 or 5 well-built        G
persons who appeared to be policemen and were forcibly
bundled into a Qualis car. The complainant, brother of the
deceased, sent telegrams and fax messages to different
authorities complaining that the said two persons had been
                                                                    H
   810      SUPREME COURT REPORTS                 [2011] 6 S.C.R.

A abducted by some persons who appeared to be policemen and
  were in danger of losing their lives.

        7. It is alleged that at Bhandup Complex the deceased was
  shifted to an lnnova vehicle. The deceased and witness Anil
  Bheda were taken to D.N. Nagar police station in two separate
8
  vehicles i.e. one Qualis and the other lnnova. It is alleged that
  the deceased was killed and his dead body was thrown near
  Nana-Nani Park at Versova. The dead body, after some time,
  was collected from the said place by the police to create a false
  case of police encounter. A case vide C.R. No. 302/2006 was
C registered on 11.11.2006 at Versova Police Station against
  deceased Ramnarayan Gupta on the complaint made by
  accused No. 9. In the said FIR it was shown that accused No.
  9 and other police officers had gone to Nana-Nani Park on the
  basis of certain information and that the deceased was asked
D to surrender before the police. Instead of surrendering before
  the police, the deceased had attempted to kill the police and
  in retaliation he was shot by them.

       8. It is also alleged that witness Anil Bheda was initially
E detained at D.N. Nagar Police Station and thereafter he was
  taken to Kolhapur and he was further detained at Mid Town
  Hotel at Andheri. As such the witness Anil Bheda was in
  custody of the police for about one month from 11.11.2006. His
  wife had lodged a missing complaint at Vashi police station
F on the same day, but she was compelled to withdraw that
  complaint.

       9. The complainant is the brother of the deceased and is
  a practicing advocate. He came to know within a few minutes
  of the incident of abduction of his brother. He, therefore, along
G with advocate Mr. Ganesh Ayyer, started searching for his
  brother and in the meantime he had also sent telegrams to
  Police Commissioner of Thane, Mumbai and New Bombay of
  the alleged abduction of his brother and indicated apprehension
  that his brother wou!d be eliminated in a false police encounter.
H
 PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 811
   VISHWANATH GUPTA [MARKANDEY KAT JU, J.]
On the same day it was flashed on T.V. channels that the             A
deceased had been killed in a police encounter. The
complainant, therefore, approached the High Court on
15.11.2006 by filing a writ petition (WP 2473/2006) to get
directions from the High Court to the police to register a case
in respect of death of his brother.                                  B

     10. On the aforesaid writ petition the High Court on
13.2.2008 passed an order that the offence of murder be
registered against the accused. During the investigation the
statement of Anil Bheda and other witnesses were recorded.           C
So far, the police have charge-sheeted 19 accused.

       11. After the High Court by its order dated 13.2.2008 had
  directed the Metropolitan Magistrate, Railway Mobile Court,
  Andheri to make an inquiry under Section 176(1A) Cr.P.C., the
  Metropolitan Magistrate after holding the inquiry submitted a      D
  report dated 11.8.2008 that Ramnarayan Gupta was shot by
  the police when he was in police custody. The report also
  stated that the death had not taken place at the spot alleged
  by the police, and that the deceased had not disappeared from
  the police custody before he was done to death, but that the       E
  deceased was abducted by the police. The report also held that
  a false FIR was lodged by accused No. 9 Police Inspector
  Pradip Suryavanshi of D.N. N"agar Police Sttion to show that
  Ramnarayan Gupta was killed in a police encounter at Nana-
  Nani Park, and this FIR was filed to cover up the murder of the    F
: deceased Ramnarayan Gupta.

       12. After the inquiry report was submitted by the
! Metropolitan Magistrate, the Division Bench of the Bombay
I High Court by its order dated 13.8.2009 in the aforesaid
·criminal writ petition constituted a Special Investigation Team     G
  for investigation of this case. Mr. K.M.M. Prasanna, DCP,
'Mumbai City, was appointed as head of the investigation team,
  and he was directed to record the statement of the complainant
  and to treat that statement as the FIR. Copy of the order of the
  Bombay High Court dated 13.8.2009 is Annexure P-3 to this          H
    812      SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A appeal. Accordingly, the statement of the complainant was
  recorded on 20.8.2009 which was treated as the FIR (Annexure
  P4 to this appeal) and investigation was carried out. The
  statement and supplementary statement of Anil Bheda, which
  corroborates the prosecution case, is Annexure P5 to this
B appeal.

          13. During investigation, it was revealed that accused No.1
    Police Inspector Pradip Sharma (who is described as an
    'encounter specialist'), accused No.9 - Pl Pradip Suryawanshi
    and accused No. 14 - Janardan Bhanage, had entered into a
C   conspiracy to eliminate Ramnarayan Gupta. It appears that
    accused No.14 Janardan Bhanage had some personal 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
D   Solanki, accused N0.6 - Akil Khan, accused No.8 - Manoj
    Mohan Raj, accused No.12 - Mond. 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 Pl Pradip
E   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
    the d~ceased. Accused No.11 API Nitin Satape and accused
    no.22 PSI Arvind Sarvankar claimed to have fired during the
F   encounter, though the bullets fired from their fire arms were not
     recovered. Accused Nos. 13,16, 17, 18 and 19, whose bail
    orders were cancelled by the High Court, 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
G    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 1
     in the evening and also later on ;:it Hotel Mid Town from time to
H   time.
PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 813
  VISHWANATH GUPTA [MARKANDEY KATJU, J.]
      14. On behalf of the prosecution, it is pointed out that in A
the FIR lodged by P.I. Pradip Suryavanshi showing the killing
of Ramnarayan Gupta in an encounter at Nana-Nani Park, he
had given names of police officers and police staff, who were
in that team. The names of accused Nos.13, 16, 17. 18 and 19
are shown in the said FIR. On that basis an entry was made in B
the station diary, where also the 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       c
for taking action against the culprits, some of these persons had a
peared 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, which was dismissed. Everywhere they had ta.ken the
                                                                    0
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 the alleged
encounter. The learned Counsel also pointed out that there is
sufficient material to show that these persons were involved in E
the commission of the crime.
     15. The Sessions Court granted bail to the appellants but
that has been cancelled by the High Court by the impugned
judgment.
                                                                     F
      16. It was contended by learned counsel for the appellants
before us, and it was also contended before the High Court,
that the considerations for cancellation of bail is different from
the consideration of grant of bail vide Bhagirathsinh s/o
Mahipat Singh Judeja vs. State of Gujarat (1984) 1 SCC 284,          G
Do/at Ram and others vs. State of Haryana (1995) 1 SCC 349
and Ramcharan vs. State of M.P. (2004) 13 SCC 617.
     17. However, we are of the opinion that that is not an
absolute rule, and it will depend on the facts and circumstances
of the case. In considering whether to cancel the bail the Court     H
    814      SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A has also to consider the gravity and nature of the offence, prima
  facie case against the accused, the position and standing of
  the accused, etc. If there are very serious allegations against
  the accused his bail may be cancelled even if he has not
  misused the bail granted to him. Moreover, the above principle
B applies when the same Court which granted bail is approached
  for canceling the bail. It will not apply when the order granting
  bail is appealed against before an appellate/revisional Court.

        18. In our opinion, there is no absolute rule that once bail
  is granted to the accused then it can only be cancelled if there
C is likelihood of misuse of the bail. That factor, though no doubt
  important, is not the only factor. There are several other factors
  also which may be seen while deciding to cancel the bail.

       19. This is a very serious case and cannot be treated like
D an ordinary case. The accused who are policemen are
  supposed to uphold the law, but t~e allegation against them is
  that they functioned as contract killers. Their version that
  Ramnarayan Gupta was shot in a police encounter has been
  found to be false during the investigation. It is true that we are
E not deciding the case finally as that will be done by the trial court
  where the case is pending, but we can certainly examine the
  material on record in deciding whether there is a prima facie
  case against the accused which disentitles them to bail.

       20. Accused No. 11 API Nitin Sartape, accused No.17 PSI
F 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
G 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 API Sartape (accused No.11), PSI
H Harpude (accused No.17) and Police Constable Batch
PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 815
  VISHWANATH GUPTA [MARKANDEY KATJU, J.]
 No.26645 i.e. Pandurang Kokam (accused No.19) left the               A
 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         B
 Pl 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     c
 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,          0
 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         E
 to at Nana Nani Park where Ramnarayan Gupta was killed. In
 view of this, the presence of PSI Patade in the team which
 executed the said plan and killed Ramnarayan does not appear
 to 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                F
 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        G
 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 the
 encounter team. Hence there is a prima facie case against
 them.·
                                                                      H
    816     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A       21. As far as accused Nos. 16, 17, 18 and 19 are
  concerned, there is sufficient material to prima facie 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
B 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 the conspiracy. However,
c it cannot be forgotten that accused No.13 was one of the
  petitioners before the Supreme Court and had claimed that he
  was a member of the encounter team along with Pl Suryavanshi
  and others, and this admission finds corroboration from the
  contents of the FIR registered by Pl Suryavanshi himself.
D      22. In fact, the prosecution material collected during the
  investigation prima facie indicates 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 some unknown
  place where he was shot dead. At 9 p.m. some police officers
E came back to the police station and deposited their weapons
  and kept their blood stained clothes.

         23. In our opinion this is a very serious case wherein prima
  facie some police officers and staff were engaged by some
F private persons to kill their opponent i.e. Ramnarayan Gupta
  and the police officers and the staff acted as contract killers
  for them. If such police officers and staff can be engaged as
  contract killers to finish some person, there may be very strong
  apprehension in the mind of the witnesses about their own
G safety. If the police officers and staff could kill a person at the
  behest of a third person, it cannot be ruled out that they may
  kill the important witnesses or their relatives or give threats to
  them at the time of trial of the case to save themselves. This
  aspect has been completely ignored by the learned Sessions
H Judge while granting bail to the accused persons.
PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 817
  VISHWANATH GUPTA [MARKANDEY KATJU, J.]
     24. In our opinion, the High Court was perfectly justified in   A
canceling the bail to the accused-appellants. The accused/
appellants are police personnel and it was their duty to uphold
the law, but far from performing their duty, they appear to have
operated as criminals. Thus, the protectors have become the
predators. As the Bible says "If the salt has lost its flavour,      B
wherewith shall it be salted?", or as the ancient Romans used
to say,"Who will guard the Praetorian guards?" (see in this
connection the judgment of this Court in CBI vs. Kishore Singh,
Criminal Appeal Nos.2047-2049 decided on 25.10.2010).

     25. We are of the view that in cases where a fake               C
encounter is proved against policemen in a trial, they must be
given death sentence, treating it as the rarest of rare cases.
Fake 'encounters' are nothing but cold blooded, brutal murder
by persons who are supposed to uphold the law. In our opinion
if crimes are committed by ordinary people, ordinary                 D
punishment should be given, but if the offence is committed by
policemen much harsher punishment should be given to them
because they do an act totally contrary to their duties.

      26. We warn policemen that they will nor be excused for        E
committing murder in the name of 'encounter' on the pretext that
they were carrying out the orders of their superior officers or
politicians, however high. In the Nuremburg trials the Nazi war
criminals took the plea that 'orders are orders', nevertheless
they were hanged. If a policeman is given an illegal order by        F
any superior to do a fake 'encounter', it is his duty to refuse to
carry out such illegal order, otherwise he will be charged for
murder, and if found guilty sentenced to death. The 'encounter'
philosophy is a criminal philosophy, and all policemen must
know this. Trigger happy policemen who think they can kill           G
people in the name of 'encounter' and get away with it should
know that the gallows await them.

     27. For the above reasons. these appeals are dismissed.

     28. Before parting with this case, it is imperative in our      H
     818      SUPREME COURT REPORTS                [2011] 6 S.C.R.

A opinion to mention that our ancient thinkers were of the view
  that the worst state of affairs possible in society is a state of
  lawlessness. When the rule of law collapses it is replaced by
  Matsyanyaya, which means the law of the jungle. In Sanskrit the
  word 'Matsya' means fish, and Matsyanyaya means a state of
B affairs where the big fish devours the smaller one. All our
  ancient thinkers have condemned Matsyanyaya vide 'History of
  Dharmashastra' by P.V. Kane Vol. Ill p. 21. A glimpse of the
  situation which will prevail if matsyanyaya comes into existence
  is provided by Mark Antony's speech in Shakespeare's 'Julius
c Caesar' quoted at the beginning of this judgment.
        29. This idea of matsyanyaya (the maxim of the larger fish
  devouring the smaller ones or the strong despoiling the weak)
  is frequently dwelt upon by Kautilya, the Mahabharata and other
  works. It can be traced back to the Shatapatha Brahmana XI
D 1.6.24 where it is said "whenever there is drought, then the
  stronger seizes upon the weaker, for the waters are the law,"
  which means that when there is no rain the reign of law comes
  to an end and matsyanyaya begin to operate.

E.     30. Kautilya says, 'if danda be not employed, it gives rise
  to the condition of matsyanyaya, since in the absence of a
  chastiser the strong devour the weak'. That in the absence of
  a king (arajaka) or when there is no fear of punishment, the
  condition of matsyanyaya follows is declared by several works
F such as the Ramayana II, CH. 67, Shantiparva of Mahabharat
  15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9,
  Manasollasa II. 20.1295 etc.
          31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is
     stated:-
G
           "Raja chen-na bhavellokey prithivyaam dandadharakah
           Shuley matsyanivapakshyan durbalaan balvattaraah"

           32. This shloka means that when the King carrying the rod
H
PRAKASH KADAM AND ETC. ETC. v. RAMPRASAD 819
  VISHWANATH GUPTA [MARKANDEY KATJU, J.]
of punishment does not protect the earth then the strong             A
persons destroy the weaker ones, just like in water the big fish
eat the small fish. In the ·shantiparva of Mahabharata Bheesma
Pitamah tells Yudhishthir that there is nothing worse in the world
than lawlessness, for in a state of Matsyayaya, nobody, not
even the evil doers are safe, because even the evil doers will       B
sooner or later be swallowed up by other evil doers.

     33. We have referred to this because behind the growing
lawlessness in the country this Court can see the looming
danger of matsyanyaya.
                                                                     c
    34. The appeals are dismissed, but it is made clear that
the trial court will decide the criminal case against the
appellants uninfluenced by any observations made in this
judgment, or in the impugned judgment of the High Court.
                                                                     D
D.G.                                        Appeals dismissed.