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  NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 306 OF 2013 [Arising out of Special Leave Petition (Crl.) No.9359 of 2010]

ROHTASH KUMAR … APPELLANT

Versus

STATE OF HARYANA Through the Home Secretary, Government of Haryana,  Civil Secretariat,  Chandigarh & Ors. … RESPONDENTS

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. In  this  appeal,  by  special  leave,  judgment  and order  

dated  13/9/2010  of  the  Punjab  and  Haryana  High  Court

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dismissing  Criminal  Misc.  No.M-2063  of  2009  filed  under  

Section 482 of the Criminal Procedure Code (“the Code”) is  

challenged.    In  the  petition  before  the  High  Court,  the  

prayer was for issuing directions to respondents 1 to 4 for  

registration of FIR under Sections 302 and 201 of the Indian  

Penal  Code  (“the IPC”)  against  respondents  5  to  9,  who  

were  policemen  attached  to  Police  Station  Bawal,  District  

Rewari (Haryana), at the relevant time, for committing the  

murder of Sunil, son of the appellant in a fake encounter in  

the night intervening 12/10/2008 and 13/10/2008 at Rewari  

Road, Narnaul and for further direction to the Central Bureau  

of Investigation (“CBI”) to investigate the said FIR.  

3. Brief facts of the case need to be stated:

According  to  the  appellant,  in  the  night  intervening  

12/10/2008 and 13/10/2008, his son - Sunil was killed in a  

fake  encounter  by  the  officials  of  Police  Station  Bawal,  

District Rewari.  It is alleged that on 13/10/2008, the SHO of  

Police Station City Narnaul came to the appellant and asked  

him  to  accompany  him  to  identify  an  injured  person  

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suspecting him to be his son at Civil Hospital, Narnaul.  The  

appellant found his son lying dead in the mortuary and on  

hearing the news from SHO that his son has been killed in an  

encounter by a team of Bawal police headed by respondent  

5,  he  became  unconscious.   The  post-mortem  of  the  

deceased had already been conducted.   On persuasion of  

SHO Sadhu Singh, the dead body of Sunil was consigned to  

flames.   According to the appellant,  he observed 13 days  

mourning for the death of his son.  During this period, he  

collected copies of post-mortem report and FIR No.351 dated  

13/10/2008 registered at Police Station City Narnaul.    He  

came to know that respondents 5 to 9 had murdered his son  

with ulterior motive and had given  shape of encounter to  

the  murder.   The  encounter  never  took  place.   It  is  the  

appellant’s case that FIR No.351 and the post-mortem notes  

themselves prove that the story of encounter is a concocted  

story, rather it is a clear case of murder by respondents 5 to  

9.   According to the appellant, the truth will come out only if  

this court directs registration of FIR under Section 302 and  

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201 of the IPC against respondents 5 to  9 and directs its  

investigation by CBI.  

4. The  other  version  which  also  needs  to  be  stated  is  

disclosed from FIR No.351 dated 13/10/2008 lodged at Police  

Station City Narnaul by ASI Ram Sarup.  It is stated in the FIR  

that ASI Ram Sarup of Police Station Bawal along with others  

was  sent  for  the  search  of  accused  Parveen  @ Sunil  s/o.  

Rohtash, r/o. Mohalla Jamalpur, Narnaul, named in FIR No.52  

dated  19/4/2008.  When  they  were  at  Narnaul  Bus  Stand,  

they  received  a  secret  information  at  12:15  a.m.  in  the  

midnight  that  the said  Praveen @ Sunil,  who is  the most  

wanted criminal in the districts of Rewari and Mahindergarh  

will be crossing Narnaul.  The officials of Bawal Police Station  

started checking the motor cycles passing through Narnaul.  

At about 12:25 a.m., a pulsor motor cycle driven by Umesh  

was seen approaching.  Sunil was the pillion rider.  Constable  

Gulab Singh knew Sunil  personally.   He identified Sunil  in  

street light.  The motor cycle rider was signaled to stop but  

he did not stop and, instead increased its speed and hit one  

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constable.   The  constable  fell  down.   Sunil  brandished  

firearms  with  both  hands.   The  motor  cycle  was  turned  

towards Rewari Road.  The police vehicle chased the motor  

cycle.  In the chase, the police vehicle hit the motor cycle.  

Due to imbalance, firearm held by Sunil in his left hand fell  

down.  The motor cycle, Sunil and his companion also fell  

down.   Sunil  stood  up  and  fired  at  the  police  with  the  

intention  to  kill  them.   The  police  managed  to  save  

themselves.  Sunil took out another cartridge from his pant  

pocket and tried to load it in his firearm to kill the policemen.  

ASI Ram Sarup ordered the policemen to fire in self defence.  

Constable Keshav Kumar opened burst fire on Sunil in self  

defence.  Bullets hit on the chest and stomach of Sunil.  Sunil  

died on the spot.   If  the police had not opened fire, Sunil  

would have killed policemen.  ASI Ram Sarup informed about  

this incident to Police Station City Narnaul through wireless  

set.  Umesh, the driver of the motor cycle, taking advantage  

of darkness, fled away towards Rewari Road by leaving the  

motor cycle behind.  Umesh was chased and arrested.  On  

receiving  information  from  ASI  Ram  Sarup,  Police  Station  

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Bawal, FIR No.351 dated 13/10/2008 was registered under  

Sections 332, 353, 307, 34 of the IPC at Police Station City  

Narnaul.    

5. Mr.  Gagan  Gupta,  learned  counsel  for  the  appellant  

submitted that the High Court misdirected itself in holding  

that  there  was  nothing  on  record  to  establish  that  the  

appellant’s  son  Sunil  died  in  a  fake  encounter.   Counsel  

submitted  that  the  police  version  that  in  the  night  

intervening 12/10/2008 and 13/10/2008, on receipt of secret  

information that Sunil, who was wanted in several cases was  

to pass by the bus stand of Narnaul, the officials of Police  

Station Bawal reached Narnaul bus stand; that they saw a  

motor cycle approaching the bus stand; that they recognized  

Sunil who was sitting on the pillion seat; that they asked him  

to stop the motor cycle, but instead of stopping, Sunil fired  

at the police and in self defence, the police had to fire back  

and in that firing Sunil died, is a concocted story.  Counsel  

submitted that  this  story is  belied by the fact  that  in  the  

post-mortem  notes,  it  is  stated  that  the  bullet  injuries  

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received by Sunil were caused from a distance of 3 to 8 feet  

and  there  was  blackening  around  the  edges  of  the  entry  

wounds.   This  proves  that  Sunil  was  shot  at  from  close  

quarters.   Sunil  had  received  injuries  on  his  chest  which  

indicates that this is a case of murder.  If the police wanted  

to arrest Sunil, they could have fired on non-vital parts of his  

body.  The post-mortem notes also show that there is one  

wound of entry on the back of Sunil.  This demolishes the  

police version that Sunil was the aggressor.  Besides, not a  

single policeman was injured in this incident.  If there was  

really cross-firing as alleged, at least one of the policemen  

would  have  received  some  firearm  injuries.   Counsel  

submitted that the inquiry conducted by the Tahsildar is an  

eyewash. Same is the case with the inquiry conducted by  

Additional  Deputy  Commissioner.   Counsel  drew  our  

attention to the advertisement issued in the newspapers and  

submitted  that  the  photographs  of  Sunil  shown  in  the  

advertisements are dissimilar.  Counsel submitted that in an  

encounter death, a separate FIR has to be registered with  

respect to the encounter, which has not been done in this  

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case.  Counsel submitted that the Magisterial enquiry under  

Sections 174 to 176 of the Code cannot be a substitute for  

the  obligation  of  the  police  to  register  FIR  and  conduct  

investigation into the facts and circumstances under which  

the person died.  Counsel submitted that in such a case, the  

High  Court  ought  to  have  directed  the  CBI  to  conduct  

investigation  and  submit  report  to  this  court  so  that  the  

offenders  could  be  prosecuted.   In  support  of  his  

submissions,  counsel  relied on  Rubabbuddin Shaikh  v.   

State of Gujarat & Ors.1 and Narmada Bai  v.  State of  

Gujarat & Ors.2  Counsel urged that this court may issue  

necessary instructions to the respondents.  

6. Mr.  P.N.  Misra,  learned  senior  counsel  for  the  

respondents  drew  our  attention  to  the  affidavits  filed  on  

behalf  of  the respondents.  He submitted that  Sunil  was a  

dreaded criminal.  He was charge-sheeted in several cases.  

He was declared a proclaimed offender.  Counsel drew our  

attention to the radiogram dated 10/7/2007 and pamphlets  

1 (2010) 2 SCC 200 2 (2011) 5 SCC 79

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issued by the police declaring that  any person who gives  

information  about  Sunil  would  be  rewarded.    Counsel  

pointed out that on 13/10/2008, the FIR was registered.  The  

District  Magistrate  directed  the  Tahsildar  to  conduct  an  

inquiry.   The Tahsildar conducted inquiry and submitted a  

report  that  Sunil  died  in  a  genuine  encounter.   Counsel  

pointed  out  that  after  notice  was  issued  in  the  present  

appeal, even the Additional Deputy Commissioner conducted  

an  independent  inquiry  and  submitted  a  report  that  the  

encounter  was genuine.   Counsel  submitted that  this  is  a  

clear case of a genuine encounter and, hence, the appeal  

deserves to be dismissed.  

7. Mr.  Raju  Ramachandran,  learned  amicus  curiae,  has  

filed a detailed note.  Counsel submitted that the Tahsildar’s  

inquiry is not satisfactory and no credence could be given to  

his  report  because  the  Tahsildar  appears  to  have  been  

carried away by the fact that Sunil was a dreaded criminal  

against whom six FIRs were registered.  Counsel submitted  

that though the report notices that there was blackening and  

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tattooing around the entry wounds, it does not take note of  

the fact that the blackening and tattooing around the entry  

wounds are indication of the fact that the shots were fired  

from  a  short  distance.   The  police  have  produced  two  

photographs of two different persons stating that they are of  

Sunil.  Therefore, their case that they identified Sunil using a  

torch  at  midnight  on  the  basis  of  photographs  becomes  

doubtful.  No firearms were recovered from the body of the  

deceased  and  the  police  officers  have  not  received  any  

injuries.  These facts are not consistent with the theory of  

encounter.   Counsel  submitted  that  the  police  have  not  

followed the guidelines issued by the National Human Rights  

Commission, which is violative of the mandate contained in  

Article  21  of  the  Constitution  of  India.  No  FIR  has  been  

registered in this case till date on the complaint filed by the  

appellant.   In  law,  an  FIR  is  to  be mandatorily  registered  

whenever  a  complaint  of  a  cognizable  offence  is  filed.  In  

support of this submission, counsel relied on  Babubhai v.  

State of Gujarat3, and State of Haryana v.  Bhajan Lal4.  

3 (2010) 12 SCC 254 4 1992 Supp. (1) SCC 335

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Counsel  submitted that  the appellant  has been effectively  

denied access to justice and legal remedy, which is violative  

of Article 21 of the Constitution of India.   Counsel submitted  

that it is true that in such cases, this Court can direct fresh  

investigation by an independent agency.  But, directing an  

investigation at  this  distant  time would be  an  exercise  in  

futility.  No ocular evidence would be available now.  Records  

of the two police stations involved in this case would also not  

be available.  Counsel submitted that in such a case, where  

directing a fresh investigation at this stage is not going to be  

of any use, it would be appropriate to direct the State to pay  

heavy compensation to the appellant.   In  this  connection,  

counsel  relied  on  Nilabati  Behera  (Smt.)  Alias  Lalita  

Behera  (through  the  Supreme  Court  Legal  Aid  

Committee)  v.  State of Orissa & Ors.5

8. After  carefully  perusing  the  inquiry  report  dated  

17/11/2008 submitted by Tahsildar, Narnaul  and the inquiry  

report dated 7/1/2011 submitted by the Additional Deputy  

Commissioner and other relevant record, we are inclined to  5 (1993) 2 SCC 746

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agree with  learned  counsel  for  the  appellant  and  learned  

amicus  curiae  that  Sunil  appears  to  have  died  in  a  fake  

encounter.  Post-mortem notes of Sunil state that the bullets  

were fired from a distance of about 3-8 ft. from the body.  

They  further  state  that  blackening  and  tattooing  were  

present around the entry wounds caused by the bullets. This  

indicates  that  the  shots  were  fired  from  a  very  short  

distance.   There  was  entry  wound  on  the  back.   Entry  

wounds are also seen on the chest. The location and nature  

of  wounds  are  not  consistent  with  the  theory  of  genuine  

encounter.   If  the  police  party  wanted  to  merely  prevent  

Sunil from running away, they could have fired on the non-

vital parts of his body.  If the police version that Sunil was  

aggressive,  that  he and his  companion wanted to  kill  the  

policemen  to  deter  them  from  doing  their  duty  and,  

therefore, Sunil fired at the police party was true, at least  

one  member  of  the  police  party  would  have  got  injured.  

Significantly, no one from the police party was injured. There  

is also no formal record of any recovery of firearms from the  

body of Sunil.  It is significant to note that Umesh who was  

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riding the motorcycle at the time of encounter, was arrested  

and tried for  offences under  Sections  332,  353,  307 read  

with Section 34 of the IPC inter alia for using criminal force  

to deter public servants from discharge of their duty.  The  

Sessions Court acquitted Umesh.  Acquittal of Umesh makes  

a dent in the prosecution case that Sunil fired at the police  

when the police asked him and Umesh to stop.  The police  

claim to have identified Sunil at the time of encounter on the  

basis of photographs in their possession.  Our attention has  

been  drawn  to  two  photographs  of  Sunil,  shown  on  the  

pamphlets  announcing  reward  to  anyone  who  gives  any  

information to the police about him.  These two photographs  

appear to be of two different persons.   This is tried to be  

explained by Head Constable Gulab Singh in his affidavit that  

one of the two photographs was taken from Haryana School  

Education Board and the other was given to him by a police  

informer.  It is stated that one photograph shows Sunil as a  

teenager  and  the  other  shows  him  as  a  young  man.  

Assuming this to be true, it is not understood how the police  

could have identified Sunil in the midnight in torch light.  It is  

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also not understood as to on the basis of which of the two  

photographs,  at  dead  of  night,  they  identified  him.   The  

assertion  that  Head  Constable  -  Gulab  Singh  knew  Sunil  

personally  and  he  identified  him  in  street  light  does  not  

inspire confidence.  Pertinently, there is reference to use of  

torch in the FIR filed by ASI Ram Sarup.  

9. It  is  the case of the police that Sunil  was a dreaded  

criminal and six FIRs were registered against him.  In none of  

the FIRs, however, the name of Sunil appears.  It is true that  

it is not necessary that the FIR must contain the name of an  

accused.  The involvement of an accused can come to light  

after the police record statements of witnesses and collect  

relevant  materials.  It  is  possible  that  Sunil  may  be  really  

involved in all these six cases. It also appears that he was  

declared  absconder.  But  merely  because  a  person  is  a  

dreaded  criminal  or  a  proclaimed  offender,  he  cannot  be  

killed in cold blood. The police must make an effort to arrest  

such accused.  In a given case if a dreaded criminal launches  

a  murderous  attack  on  the  police  to  prevent  them  from  

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doing their duty, the police may have to retaliate and, in that  

retaliation, such a criminal may get killed.  That could be a  

case of genuine encounter.  But in the facts of this case, we  

are unable to draw such a conclusion.  

10. We find that while inquiring whether the encounter is  

genuine or not, the Tahsildar, Narnoul is carried away by the  

fact that six FIRs are registered against Sunil and that he is a  

proclaimed offender. The inquiring authority must first focus  

its attention on the circumstances that led to the death of a  

person in an encounter. If it comes to a conclusion that it  

was the deceased who had attacked the police to prevent  

them from arresting him or to prevent them from performing  

their public duty and, therefore, the police had to retaliate,  

then the antecedents of the deceased could be taken into  

consideration as additional material at that stage to support  

the police version that it was a genuine encounter. But the  

inquiring authority cannot start the inquiry keeping in mind  

the antecedents of the deceased.  The Tahsildar was in error  

in  doing  so.   The  Tahsildar  has  placed  reliance  on  the  

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statements  of  two  chance  witnesses,  both  named  Amar  

Singh, who were allegedly present at the time of encounter.  

We  have  already  referred  to  the  sessions  case  in  which  

Umesh, who was said to be driving the motorcycle on which  

Sunil was sitting, was tried.  It is significant to note that in  

that case, PW-8 Amar Singh s/o. Khem Chand was given up  

by the prosecution since he turned hostile.  So far as PW-7  

Amar Singh s/o. Amit Lal is concerned, he appears to have  

merely referred to some incident.  The Sessions Judge has,  

therefore, merely reproduced his evidence and has not given  

any weightage to it.  Reliance placed by the Tahsildar on the  

statements  of  these  two  chance  witnesses  weakens  his  

report further.  

11. After  notice  was  issued  by  this  Court,  the  Additional  

Deputy Commissioner conducted an inquiry and submitted  

his report dated 7/1/2011.  This report places reliance on the  

earlier report of the Tahsildar which we have found to be not  

satisfactory.  This report places the burden of proof on the  

appellant.   We find it  difficult  to  accept the report  of  the  

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Additional  Deputy  Commissioner  which  concurs  with  the  

Tahsildar’s finding that  the encounter  was genuine.    The  

High Court has erroneously observed that the appellant has  

failed to bring on record anything to establish his case of  

false  encounter.   All  the  relevant  circumstances  were  

completely overlooked by it.  In the circumstances, the High  

Court’s  order impugned in this appeal  will  have to be set  

aside.  

12. What disturbs us is the fact that the police have refused  

to  follow  the  guidelines  dated  2/12/2003  issued  by  the  

National  Human  Rights  Commission.   The  two  crucial  

guidelines which have been completely ignored by the police  

are that the investigation into the encounter death must be  

done  by  an  independent  investigation  agency  and  that  

whenever a complaint is made against the police making out  

a case of culpable homicide, an FIR must be registered.  In  

the instant case, the police have refused to even register the  

FIR on the complaint made by the appellant alleging that his  

son Sunil was killed by the police.  Section 154 of the Code  

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mandates that whenever a complaint discloses a cognizable  

offence,  an FIR  must  be registered.   This  Court  has,  in  a  

catena of judgments, laid down that the police must register  

an FIR if a cognizable offence is disclosed in the complaint.  

[See:  State  of  Haryana  v.  Bhajan  Lal6]. Ignoring  the  

mandate of Section 154 of the Code and the law laid down  

by this  Court,  the police have merely  conducted inquiries  

which appear to be an eyewash.  It is distressing to note that  

till date, no FIR has been registered on the complaint made  

by  the  appellant.   The  only  FIR  which  was  registered  is  

against  Umesh  under  Sections  332,  353,  307  read  with  

Section 34 of the IPC at the instance of ASI Ram Sarup.  As  

already noted, in that case, Umesh has been acquitted.  

13. Once we come to a conclusion that Sunil is killed in an  

encounter, which appears to be fake, it is necessary to direct  

an  independent  investigating  agency  to  conduct  the  

investigation so that those who are found to be involved in  

the commission of crime can be tried and convicted. But, as  

6 1992(supp)1 SCC 335

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rightly  pointed  out  by  learned  amicus  curiae  directing  an  

investigation, at this distant point of time, will be an exercise  

in  futility.   We are  informed that  witnesses  would  not  be  

available.  It would be difficult to trace the record of the case  

from the two police stations. Handing over investigation to  

an  independent  agency  and  starting  a  fresh  investigation  

would be of no use at this stage. Reliance placed by  learned  

counsel  for  the  appellant  on  Rubabbuddin  Shaikh and  

Narmada  Bai  is  misplaced.  Those  cases  arose  out  of  

different fact situations. No parallel can be drawn from them.  

14. We share the pain and anguish of the appellant, who  

has lost his son in what appears to be a fake encounter.  He  

has conveyed to us that he is not interested in money but he  

wants  a  fresh  investigation  to  be  conducted.   While  we  

respect the feelings of the appellant, we are unable to direct  

fresh investigation for the reasons which we have already  

noted.  In  such  situation,  we  turn  to  Nilabati  Behera,  

wherein  the  appellant’s  son  had  died  in  custody  of  the  

police.  While noting that custodial death is a clear violation  

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of prisoner’s  rights under Article 21 of  the Constitution of  

India,  this  Court  moulded  the  relief  by  granting  

compensation to the appellant.   

15. In  the  circumstances  of  the  case  we  set  aside  the  

impugned judgment and order dated 13/9/2010 and in light  

of  Nilabati  Behera,  we  direct  respondent  1  –  State  of  

Haryana to pay a sum of  Rs.20 lakhs to the appellant  as  

compensation for the pain and suffering undergone by him  

on account of loss of his son - Sunil. The payment be made  

by demand draft drawn in favour of the appellant “Rohtash  

Kumar” within a period of one month from the date of the  

receipt of this order.  

16. The appeal is disposed of accordingly.  

17. Before  parting,  we  record  our  appreciation  of  the  

valuable  assistance  rendered  to  us  by  Mr.  Raju  

Ramachandran, learned amicus curiae.  

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……………………………………………..J.     (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, FEBRUARY 14, 2013.

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