SHAMJI LADHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Service of Rule is waived by learned Government Pleader Mr. Prashant G. Desai for the respondents. The petitioners claim to be office-bearers of an organisation called Action Committee for Prevention of Police Atrocities. They have approached this Court, it is claimed, to uphold rule of law and for ensuring democratic functioning of all the organs of the State with special emphasis to see that the Police Authorities do discharge their functions and duties in accordance with the Constitutional mandate. It is their case that the police under the stewardship of Shri Satish Verma, District Superintendent of Police, Porbandar, resort to fake encounters to liquidate the people after characterising them hard-core criminals. In this Special Civil Application the petitioners claim that one Jasu Gagan Shial, Ranmal Ram and Naran Jesti were murdered by the Police and made it appear that it were either on account of police using fire-arms in self-defence or by their committing suicide. Jasu Gagan Shial was killed by the police in a fake encounter. The story put forth by the police is that Shial tried to run away from the police when he was about to be arrested. He used his fire-arms to kill/scare away the police and then he was shot at and that resulted in his death. This story is clearly false. On account of death of Shial entire people of Porbandar voiced their protest which led to an enquiry by the Sub-Divisional Magistrate. That enquiry is not a judicial enquiry and that was an attempt to pacify the people of the locality. Enquiry by the Sub-Divisional Magistrate as ordered by the District Magistrate and Collector was to cover-up the misdeeds of the police in causing death of Jasu Gagan Shial. Ranmal Ram was taken into police custody in connection with Kutiyana Police Crime Register No. II/28/95. He was in police custody on remand till 9-1-1996. During the said period he was killed in an encounter with police. One Naran Jesti, who was in police custody on remand is alleged to have ran away from the lockup and committed suicide by hanging himself from a tree near the Police Station. On the basis of these instances the petitioners pray for appointing a high-ranking judicial officer to enquire into the custodial deaths, encounter deaths and illegal detentions at the hands of the police and to take action on the basis of the report of that officer.

(2.) On behalf of the State an Under Secretary to Government in the Home Department filed affidavit dated 1-12-1997. The averments made therein are to the following effect : (a) Jasu Gagan Shial was accused in many cases and was absconding. He was involved in offences punishable under the Arms Act, Narcotic Drugs and Psychotropic Substances Act, Indian Penal Code and Terrorist and Disruptive Activities (Prevention) Act. He was in the habit of destroying evidence. He has been generally acquitted for want of evidence by Courts of law. After production of other accused before the Courts of law and completion of trial and acquittal of co-accused, he used to present himself before the police. This practice made it easier for him to get acquittal in almost all cases. A raid was arranged for arresting him on getting information by the D.S.P., Porbandar. It was known that Shial had taken shelter at the residence of one Premji Shamji Kharva. During the raid on 2-12-1996 Shial tried to run away from the residence of Premji Shamji Kharva. Shial used fire-arms against police officers. Police after giving warning shot at him. That resulted in his death. The incident took place only because Shial tried to run away from the police to avoid arrest, has used fire-arms against police and that police had to return gun-shot. The Sub-Divisional Magistrate conducted an enquiry into that incident and found no illegality in the police using force. The report of the Sub-Divisional Magistrate is based on evidence recorded in the enquiry. The conclusion reached by the Sub- Divisional Magistrate was that Shial died in police encounter because while running away from the house of Premji Shamji Kharva he fired at the police and in selfdefence police fired at him and that resulted in Shial's death. (b) Aher Ranmal Ram was in judicial custody at Junagadh District Jail in connection with the offences registered at Kutiyana Police Station in Crime Register No. II/85/95 registered under the Arms Act and the TADA Act. He was remanded till 8-1-1996. Police had to recover fire- arms and ammunitions which was kept concealed by accused. For effecting recovery accused was taken to the residence of Naran Jesti Bandhiya. From there 12 bore cartridges and a gun of 12 bore were recovered. Thereafter, at the instance of accused the police took him to the residence of his brother-in-law. He tried to open a wooden box. Immediately on opening it he picked out a pistol and fired twice at Mr. S. H. Jhala, Police Sub-Inspector. Mr. Jhala sat down and saved himself from the bullets. Police Sub-Inspector Mr. K. N. Patel, who was assisting Mr. Jhala fired at Aher Ranmal Ram. As a result of the bullet injuries Aher Ranmal Ram expired. The Sub-Divisional Magistrate enquired into this incident and opined that police had to use force in self-defence. (c) Aher Naran Jesti Bandhiya was arrested in connection with Crime Register No. II/28/95 registered at Kutiyana Police Station for offence punishable under Arms Act and TADA Act. On his arrest on 24-1-1996 he was produced before the Executive Magistrate, Porbandar on 25-1-1996. He was remanded to police custody till 29-1-1996. Thereafter, an offence was registered at Kutiyana Police Station bearing Crime Register No. I/4/96 under S.386 and 114 of the Indian Penal Code. In that case Aher Naran Jesti Bandhiya was second accused. The police asked for ten days' remand from the J.M.F.C., Porbandar. Thus, he was taken into police custody for the period upto 31-1-1996. He was taken to Kutiyana. On reaching Kutiyana under the excuse of passing urine he gave a push to the head constable and ran away from the police custody. Attempt to arrest him did not succeed. Next day morning, i.e., on 30-1-1996 one Maher Khara Savdas reported to Kutiyana Police Station about suicide of an unknown person by hanging from a banyan tree standing in his farm. On reaching the spot the police found the dead body of Aher Naran Jesti Bandhiya hanging from a tree. Thus, after running away from the police custody on 29-1-1996 Aher Naran Jesti Bandhiya committed suicide. Enquiry into the cause of death was conducted by the Sub-Divisional Magistrate, Porbandar. On the basis of the evidence recorded by him he came to the conclusion that Aher Naran Jesti Bandhiya committed suicide after running away from the police custody.

(3.) The deaths of three persons mentioned above were subject-matter of an enquiry by the Sub-Divisional Magistrate. The Enquiry Officer found the police not liable for their deaths. Therefore, there is no reason for this Court to invoke extraordinary jurisdiction under Art. 226 of the Constitution of India.