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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1174-1178_OF 2011 [Arising out of SLP((Criminal) Nos. 3865-69 of 2011]

Prakash Kadam & etc. etc. .. Appellants

-versus-

Ramprasad Vishwanath Gupta & Anr. .. Respondents

J U D G M E N T

Markandey Katju, J.

A curse shall light upon the limbs of men; 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 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 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)

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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.

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  

Court.

4. The appellants are policemen accused of a contract 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 @ 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 Ramnarayan  

Gupta and the accused No. 14, Janardan Bhange were, once upon a time,

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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 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 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  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  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  abducted  by  

some persons who appeared to be policemen and were in danger of losing  

their lives.  

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7. It is alleged that at Bhandup Complex the deceased was shifted to an  

Innova vehicle.  The deceased and witness Anil Bheda were taken to D.N.  

Nagar police station in two separate vehicles i.e. one Qualis and the other  

Innova.  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  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 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  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  

on the same day, but she was compelled to withdraw that complaint.

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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 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 would be eliminated in a false police encounter.   On the same day it  

was flashed on T.V. channels that the 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.

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.  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

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under Section 176(1A) Cr.P.C.,  the Metropolitan Magistrate after holding  

the inquiry submitted a 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 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. Nagar 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 deceased Ramnarayan Gupta.

12. After  the  inquiry  report  was  submitted  by  the  Metropolitan  

Magistrate, the Division Bench of the Bombay High Court by its order dated  

13.8.2009  in  the  aforesaid  criminal  writ  petition  constituted  a  Special  

Investigation Team  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 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

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statement and supplementary statement of Anil Bheda, which corroborates  

the prosecution case, is Annexure P5 to this 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  -  PI  Pradip  Suryawanshi  and  accused  No.  14  -  Janardan  

Bhanage, had entered into a 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 Solanki, accused N0.6 - Akil Khan, accused  

No.8 -  Manoj  Mohan Raj,  accused No.12 -  Mohd. 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  PI  Pradip  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 deceased. Accused No.11 API Nitin Satape and accused no.22 PSI  

Arvind Sarvankar claimed to have fired during the 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

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to  be  the  members  of  the  team  which  shot  him  dead.  Accused  No.13  

Devidas Sakpal had allegedly guarded Anil Bheda at Hotel Mid 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  in  the  evening and also  later  on  at  Hotel  Mid  

Town from time to time.

14. On behalf of the prosecution, it is pointed out that in 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 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  for  taking  action  against  the  culprits,  some  of  these  persons  had  

appeared 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.

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Everywhere they had taken the 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 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.

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, Dolat 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 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

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accused his bail may be cancelled even if he has not misused the bail granted  

to him.  Moreover, the above principle 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 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 an ordinary case.  

The accused who are policemen are supposed to uphold the law, but the  

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 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.  

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20. Accused  No.  11  API  Nitin  Sartape,  accused  No.17  PSI  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  

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 Harpude (accused No.17) and Police Constable Batch No.26645  

i.e.  Pandurang Kokam (accused No.19) left  the 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 PI 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 and Ramnarayan Gupta was shot dead in a fake encounter. This

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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, 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 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  

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 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.

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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  

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, 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 PI Suryavanshi and others, and  

this admission finds corroboration from the contents of the FIR registered by  

PI Suryavanshi himself.

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 came back to the police station and deposited their  weapons and  

kept their blood stained clothes.

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23. In our opinion this is a very serious case wherein prima facie some  

police officers and staff were engaged by some 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 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  

Judge while granting bail to the accused persons.

24. In our opinion, the High Court was perfectly justified in 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, 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).

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25. We are of the view that 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  who  are  supposed  to  uphold  the  law.   In  our  

opinion 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 duties.

26. 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.   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 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 people in the name of ‘encounter’ and get away with  

it should know that the gallows await them.      

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

28. Before  parting  with  this  case,  it  is  imperative  in  our  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  

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.  III  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 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 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 beings to operate.

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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 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:-

“Raja chen-na bhavellokey prithivyaam dandadharakah Shuley matsyanivapakshyan durbalaan balvattaraah”

32. This shloka means that when the King carrying the rod of punishment  

does not protect the earth then the strong 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 sooner or later be  

swallowed up by other evil doers.

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33. We have referred to this because behind the growing lawlessness in  

the country this Court can see the looming danger of matsyanyaya.

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.

……………………………J. (Markandey Katju)

……………………………J. (Gyan Sudha Misra)

New Delhi; 13th May, 2011