File photo of Bombay High Court. Credit: SualehFile photo of Bombay High Court. Credit: Sualeh

In a significant interim order issued on December 21, a Bombay High Court bench comprising Justice Ranjit More and Justice V L Achliya, stayed the  Maharashtra government’s suspension of sentence and release of 11 convicts – all former policemen – in a fake encounter case  and has directed them to surrender to the jail authorities on or before January 4, 2016.

The Maharashtra government had used its extraordinary powers under Section 432 CrPC to suspend for six months the life sentence of these 11 convicts, imprisoned at Thane Central Prison, and set them free.

The suspension order is patently illegal because Section 433-A imposes an embargo on government exercising power under Section 432 and Section 433 (to remit/suspend/commute) in favour of a convict punished under a provision where one of the punishments is death, unless the convict has completed 14 years of imprisonment.

The state government’s unusual action has led to misgivings since it will now be seen as not only defending encounters but also taking a soft approach towards the policemen involved in them, irrespective of judicial findings. It is noteworthy that the government has not shown similar leniency to 10 others convicted persons in the same case who did not happen to be policemen. The Shiv Sena’s campaign in favor of pardoning the policemen may have played a role in the government’s decision.

The High Court however took a dim view of the government’s decision. The High Court bench indicted the state government as follows: “the order mentions no reason for satisfaction of the Government to invoke its extraordinary powers under Section 432 of the Cr.P.C. to suspend the sentence of respondent Nos.4 to14. There is absolutely no reason recorded for exercise of such powers of wide amplitude.  In our view, the exercise of powers under Section 432(1)of the Cr.P.C. to suspend the sentence of convict of an offence under Section 302 and more particularly when the matter is sub judice before the High Court requires serious consideration before exercise of such powers by the government.

“It is not out of place to observe that day in and day out, we come across the matters of persons languishing in jail seeking parole or furlough leave, who have been denied relief by the competent authority.

“We have also come across cases in which such request has been turned down though the person/s are old, aged, sick, infirm or suffering from serious ailments like cancer. However, in the case in hand, we are shocked and surprised to see that all the agencies of the government including the learned Additional Sessions Judge has submitted report to facilitate the release of respondent Nos. 4 to 14 by way of suspension of sentence of respondent Nos. 4 to 14 under section 432(1) of the Cr.P.C..”

Ironically, the state government ordered the illegal suspension of the sentence on December 2, when the Supreme Court in the case of Union of India vs Sriharan alias Murugan, imposed new restrictions on the exercise of remission powers of state governments under Section 432 CrPC.

The background

On November 11 2006, one Ramnarayan Vishwanath Gupta alias Lakhan Bhaiya — alleged to be a member of the criminal gang led by Chhota Rajan — was abducted by the personnel belonging to D.N.Nagar Police Station and Versova Police Station, Mumbai.   Gupta was murdered after being shot at close range.   The police claimed that Gupta died in an encounter in the Versova area.  An FIR was registered against Gupta at Versova Police Station, to make the encounter appear as genuine.

On November 15, 2006, Ramnarain’s brother, Ramprasad Gupta approached the Bombay High Court seeking an independent investigation into the encounter.

In February 2008, an Enquiry Officer, appointed by the state government found the encounter as genuine. The High Court rejected the findings of this enquiry, and directed a fresh enquiry by a Metropolitan Magistrate (MM), who, in August 2008, reported to the High Court that the encounter was fake, and that Gupta had been abducted and murdered.  The High Court then directed the setting  up of a Special Investigation Team (SIT), to register an offence and investigate the murder.

In 2011, the High Court found prima facie evidence to suggest that some police officers and staff had been engaged by some private persons as contract killers, and therefore, cancelled the bail granted to the accused police officers.  During the trial in the case, and three days before he was due to give evidence, the star witness, Anil Jethalal Bheda was abducted, murdered and burnt to ashes.

Subsequently, the Supreme Court too upheld the cancellation of bail of the accused by the High Court.  While upholding the High Court order, Justice Markandey Katju had held that if an offence is committed by policemen, much harsher punishment should be given to them because they have acted totally contrary to their duties.  Justice Katju observed: “We warn policemen that they will not be excused for 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.”

On July 12, 2013, the trial court  had convicted 21 accused in the case, and sentenced them to life imprisonment.  Their appeals against the conviction and sentence are pending in the High Court.

Parole granted

One of the convicts, Pradeep Pandurang Suryavanshi was granted parole in February 2014, and he absconded. He was subsequently found and re-arrested after a year.  Another convict, Shailendra Dhupnarayan Pandey, who was also granted parole, absconded in February 2014. He is still absconding.

The High Court has dismissed the bail application of one of the convicts in August 2014.  None of the convicts whose sentences have been suspended by the State Government, have moved bail applications yet.

Surprisingly,  the state government suspended the sentence of 11 convicts on December 2 on the basis of the enquiry report, submitted by the Land Acquisition Officer on February 5, 2008, which had earlier been rejected by the High Court on February 13, 2008.

On December 3, Ramprasad Gupta challenged the suspension of the sentence of the 11 convicts in the High Court and has now obtained a stay.