Encounter case: Order suspending sentence of 11 cops quashed

The Bombay High Court on Wednesday quashed a Maharashtra government order suspending the conviction of 11 policemen who were awarded life imprisonment for the fake encounter of gangster Chhota Rajan's alleged aide Ramnarayan Gupta in 2006.

In 2015, the government, while suspending the conviction and sentence of the 11 convicts, permitted them to be released from jail to pursue their appeals.

The government decision was challenged in the high court by Ramnarayan Gupta's brother Ramprasad Gupta on the grounds that it was illegal and bad in law.

A division bench of justices B P Dharmadhikari and Revati Mohite Dere on Wednesday quashed the government's decision and said it was "perverse and unsustainable in law".

"It appears all agencies of the government facilitated the release of the 11 convicted persons by submitting biased reports," the court said in its judgement.

"Judicial review of administrative action is warranted to uphold the rule of law, lest it results in the failure of justice. Courts cannot be expected to be silent spectators to such decisions, which are blatantly perverse and unsustainable in law," the judges said.

The bench held that there was complete "non-application of mind" by all authorities, including the sessions court judge, additional director general of police and the commissioner of police, while submitting their opinion to the government.

"It is apparent that the sessions judge did not have the relevant material before him when he gave his opinion. We find that there is complete non-application of mind by the judge while giving his opinion," the high court said.

The court noted that when the government seeks opinion of a judge in such cases, the objective is to ensure the judge would consider the nature of the crime conducted, previous record of the convict, his background and other relevant factors.

The judge's opinion would then enable the government to take the right decision as to whether or not suspension of sentence should be granted, the court said.

"Hence, the judge cannot abdicate his duty in a casual or cavalier manner, as has been done in the present case," the judgement read.

The court noted that as per provisions of the Criminal Procedure Code (CrPC), it is the state government which ought to have approached the judge for opinion on suspension of sentence.

"Instead, it is the jail authorities who approached the sessions court judge. The authorities, in fact, approached the wrong judge," the court said.

As per provision, the same judge, who gave the conviction and sentence order, should be approached. If that judge is unavailable, then an opinion should be sought from his successor, the HC said.

Soon after Ramprasad Gupta approached the high court in 2015 against the government's decision, the HC stayed the release of the 11 policemen and directed them to surrender.

Ramnarayan Gupta was killed allegedly in a fake encounter in suburban Andheri in November 2006.

Later, 22 people, including 13 policemen, were charged for the killing.

After trial, a sessions court in 2013 convicted 21 accused and sentenced them to life imprisonment.

Police officer Pradeep Sharma was acquitted by the trial court due to lack of evidence.

Two years later, the state government released 11 of the convicts, all policemen, on the opinion submitted by a sessions court favouring suspension of their sentence.