REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRIMINAL) NO.222 OF 2010

Ravindra Pal Singh                                      … Petitioner  

VERSUS

Santosh Kumar Jaiswal & Ors.                  …Respondents

J U D G E M E N T

SURINDER SINGH NIJJAR, J.

1. This  transfer  petition  has  been  filed  by  the  father  of  

Ranbir Singh (hereinafter referred to as ‘the deceased’),  

who  according  to  the  prosecution,  was  killed  by  the  

respondents in a fake encounter. On 2nd of July, 2009,  

the  deceased  who  was  a  MBA  student  had  gone  to  

Dehradun in search of a job and stayed at Digambar Jain  

Mandir,  Dharmasala.  On  3rd of  July,  2009,  he  was  

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arrested  by  the  Police  of  Police  Station   Dalanwala  at  

around 1312 hrs. According to the prosecution, this can  

be  seen  from  the  record  of  Global  Positioning  System  

(GPS) log of  the vehicle of SHO, Dalanwala.  At around  

1530 hrs on the same day, the deceased was killed in a  

cold blooded manner by pumping 29 bullets into him by  

the police officials. It is the case of the prosecution that  

Santosh Kumar Jaiswal (A1) had fired 2 bullets from his  

service  revolver,  Neeraj  Kumar,  SI  (A4)  fired  2  bullets  

from his revolver; Chandra Mohan Singh Rawat (A6) fired  

6 bullets from his pistol; Gopal Dutt Bhatt (A2) fired 7  

bullets from his pistol; NItin Chouhan (A5) fired 6 bullets  

from his pistol; Rajesh Bisht (A3) fired 7 bullets from his  

pistol and Ajit Singh (A7) fired 2 bullets from AK-47. It is  

also alleged that 5 bullets were fired by police officials  

from the 9 mm Pistol, which was subsequently planted  

by  them  on  the  deceased  to  camouflage  the  fake  

encounter into a real encounter.  The CFSL Report  has  

confirmed  that  29  bullets  were  fired  at  the  deceased.  

Seventeen  bullets  hit  him  from  a  very  close  range  as  

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there  was  blackening  surrounding  the  wounds.  It  was  

also  opined  that  atleast  9  bullets  were  fired  at  the  

deceased from actual distance of 3 feet. The father of the  

deceased was informed by media persons that  his  son  

had  been  shot  down  by  the  police  at  Dehradun.  He  

reached Dehradun in the night itself. When he tried to  

contact the police officials, he was threatened by one of  

the  police  officers,  namely,  Ajay Singh C.O.  Dalanwala  

that if he tries to interfere in the matter, he would also be  

eliminated  like  his  son.  On  4th July,  2009,  the  

complainant  went  to  the  hospital  where  he  was  again  

threatened by another police officer, namely Mr. Tamta.  

Thereafter, the complainant took the body of his son to  

Meerut to perform his last rites. After performing the last  

rites of his son, the complainant came back to Dehradun  

and got  registered FIR No.101 of  2009 dated 6th July,  

2009. As the investigation was not progressing due to the  

influence of the local police, the matter was entrusted to  

the  CBI  for  investigation.  However,  the  police  officials  

continue  to  exert  influence  even  on  the  investigation  

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which was being conducted by the CBI.  

2. In order to cover up the fake encounter, the deceased had  

been made an accused in a case of theft and dacoity by  

the police officials. It was alleged that Ranbir Singh and  

his       co-accused were planning to commit robbery in  

the house of one Kavita Saxena situated at Madhuban  

Enclave,  Mohini  Road,  Dehradun.  Ranbir  Singh,  the  

deceased,  was  suspected  to  be  in  conspiracy  with  his  

friend Shekhar Tyagi,  Ram Kumar,  Ashok Panwar and  

Amit  Bhatnagar.  In  order  to  commit  the  robbery,  the  

deceased  and  his  friends  had  procured  and  were  in  

possession  of  lethal  weapons.  The  deceased  and  his  

companions were said to be in possession of one  katta.  

They had reached Dehradun on 2nd July, 2009. They had  

planned to commit the robbery on 3rd July, 2009. It was  

further  the  case  of  the  respondents  that  the  deceased  

and  his  friends  had  stayed  at  Flat  No.9  of  Jain  

Dharamshala,  Gandhi Road, Dehradun on the night of  

2nd July,  2009.  On  3rd July,  2009,  they  left  the  Jain  

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Dharamshala  at  about  1230  hrs.  At  that  time,  the  

deceased  and  his  friend  were  carrying  a  black  bag  

containing  katta, ropes and “cello tape” etc. on a motor  

cycle.  They were being followed by Ram Kumar. Ashok  

had  been sent  to  see  the  lane  in  which  the  house  of  

Kavita Saxena was located. They were waiting for Ashok  

to  come  back  with  the  information  at  a  place  near  

Gurudwara on Mohini road. At about 1245 hrs. they were  

met by G.D.  Bhatt,  S.I.  Incharge  Araghar  Chowki  who  

was on routine patrol checking. Whilst respondent No. 2  

was checking the deceased and his friends, an altercation  

broke out between them. In the altercation, the deceased  

attacked  respondent  No.  2  and  snatched  his  service  

pistol.  At  that  stage,  a  passerby,  Anjum  Parvej  Khan  

intervened and fired a shot in the air from his licenced  

pistol. The deceased and his companion fled away on a  

motor  cycle  along  with  service  pistol  which  they  had  

stolen from            S.I. G.D. Bhatt. According to the  

respondents,  the  deceased  was  killed  in  an  encounter  

with the police personnel in cross firing. Consequently,  

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an  FIR  was  registered  against  the  deceased  and  his  

associates  on  3rd July,  2009  under  Section  394,  IPC.  

Another FIR was also registered under Section 307 IPC  

against the deceased and his associates. The motor cycle  

was also  recovered from the  place  where the  deceased  

was  killed  in  the  encounter.  According  to  the  

respondents, even the motor cycle had earlier been stolen  

by  the  deceased  and  his  associates.  Subsequently,  

chargesheet had been filed against the deceased and his  

associates under Sections 120B, 392, 333 and 411 IPC.

3. It is the case of the respondents that the transfer petition  

is  wholly  misconceived.  The  investigation  has  been  

transferred to the CBI. The CBI has submitted a closure  

report in the case registered against the deceased and his  

companion. Clearly, therefore, the police officers cannot  

be said to be exerting any influence on the proceedings in  

court. Once the investigation has been entrusted to the  

CBI, the local police has no further role to play. Further  

more,  answering  respondents  are  no  longer  posted  at  

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Dehradun. Even otherwise the respondents are not high  

officials and cannot exert any influence on the State. One  

of the respondents is an Inspector. Five respondents are  

Sub-Inspectors  and  the  rest  are  in  the  rank  of  

Constables. The impartiality of the State is also apparent  

that  all  the  respondents  have  been  transferred  out  of  

Dehradun.

4. The justification given by the  respondents  is,  however,  

controverted by the complainant illustrating the influence  

wielded by the respondents.  It  is highlighted that even  

the  transfer  of  the  case  to  the  CBI  has  made  no  

difference. In fact, none of the police officers were even  

suspended. All the accused had managed to create such  

circumstances which led to the High Court granting bail  

to  the  respondents.  The  complainant  apprehends  that  

the  prosecuting  agency  at  Dehradun  will  not  properly  

conduct  the  case.  It  will  not  be  able  to  resist  the  

influence of the accused. The influence of the accused is  

such that the complainant was not able to even engage  

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an advocate to file application for cancellation of bail in  

the High Court  against the respondents.  Even the CBI  

counsel was deliberately absent when the application for  

bail  was  heard  by  the  High  court  only  to  help  the  

respondents.  

5. We have  heard  the  learned  counsel  for  the  parties  at  

length.  We  are  of  the  considered  opinion  that  the  

apprehensions expressed by the complainant,  father  of  

the deceased, cannot be said to be unfounded. Mr. Sushil  

Kumar,  learned counsel  appearing  for  the  respondents  

submitted  that  the  deceased  and  his  friends  were  in  

possession  of  lethal  weapons  at  a  very  crucial  and  

sensitive time. According to the learned counsel, on that  

very  day  the  President  of  India  was  due  to  visit  

Dehradun, therefore, there was very intensive checking.  

At the relevant time, when the deceased and his friends  

were stopped for checking they became nervous.  There  

was a scuffle between the deceased and the police and in  

the process, the deceased snatched the service revolver  

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from the Inspector G.D. Bhatt. As a consequence, there  

was a genuine encounter in which unfortunately the son  

of the complainant was hit by some bullets in the cross  

fire.  Learned  counsel  further  submitted  that  merely  

because the accused in the case are police officials would  

not lead to a presumption that there would not be a fair  

trial  in  the  State  of  U.P.  He  submitted  that  all  the  

concerned  police  officials  have  been transferred  out  of  

Dehradun.  They  have  in  fact  been  put  on  non  active  

duties. In the event, the case is transferred out of State of  

U.P. it would cause injustice to respondents. According to  

the  learned  counsel  the  respondents  are  low  ranking  

police  officials  who  would  not  be  able  to  bear  the  

expenses  in  defending  themselves  at  a  court  which  is  

situated a long distance away.  

6. In  our  opinion,  given  the  peculiar  facts  and  

circumstances of this case, it is necessary to ensure that  

there  is  no  possibility  of  any  undue  influence  being  

exerted  by  the  respondents  on  the  prosecution.  The  

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complainant  has  made  a  serious  grievance  about  the  

manner in which the prosecution has been conducted.  

We would refrain from recording any firm opinion on the  

issue, at this stage. However, at the same time it must be  

ensured  that  the  prosecution  witnesses  are  able  to  

depose without any fear of repercussions. This can only  

be ensured by transferring the criminal case out of the  

area  in  which no  allegations  could  be  made  of  undue  

influence, against the prosecution.

7. The prayer made by the petitioner was for transfer of this  

case to the CBI Court at Ghaziabad/Lucknow. However,  

the accused had expressed similar apprehension about  

undue influence being exerted by the petitioner,  if  the  

case is transferred to the Court at Ghaziabad/Lucknow.  

Therefore,  purely in the  interest  of  justice,  we deem it  

appropriate to transfer the case to Delhi. Case Crime No.  

3 of  2010 titled State  through CBI  vs.  S.K.  Jaiswal  is  

transferred from the Court of Special Judicial Magistrate,  

CBI,  Dehradun  to  the  Court  of  Special  Judge,  CBI,  

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Delhi, for trial or its assignment to an appropriate court,  

as the Special Judge may consider it fit and proper.  

……………………………..J.                                                [B.Sudershan Reddy]

……………………………..J.   [Surinder Singh Nijjar]

New Delhi March 17, 2011

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