RAVINDRA PAL SINGHversusSANTOSH KUMAR JAISWAL & ORS.

                        [2011) 3 S.C.R. 970


A                     RAVINDRA PAL SINGH
                                 v.
           SANTOSH KUMAR JAISWAL & ORS.
     (TRANSFER PETITION (CRIMINAL) NO. 222 OF 2010)
                         MARCH 17, 2011
B
      [B. SUDERSHAN REDDY AND SURINDER SINGH
                     NIJJAR, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:
c
       s. 406 - Tran~fer 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               971
               JAISWAL & ORS.

    Disposing of the petition, the Court                    A
    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.
                                                            G
    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!
                                                            H
     972      SUPREME COURT REPORTS                 [2011] 3 S.C.R.


 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.
           The Judgment of the Court was delivered by
 B
         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
;G 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
 H
     RAVINDRA PAL SINGH v. SANTOSH KUMAR                           973
   JAISWAL & ORS. [SURINDER SINGH NIJJAR, J.]

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 offici~ls. It was alleged that Ranbir Singh and his co-
accused 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 rob~ary 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
   974      SUPREME COURT REPORTS                   [2011] 3 S.C.R.


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
  against the deceased and his associates. The motor cycle was
0
  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.
   RAVINDRA PAL. SINGH v. SANTOS.H KUMAR                    975
  JAISWAL & ORS. [SURINDER SINGH NIJJAR, J.]

       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
    976     SUPREME COURT REPORTS                 [2011) 3 S.C.R.


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.
B
         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.·