'Fake' Encounters : Supreme Court To Consider Gujarat Govt's Objection To Sharing Records With Petitioners

It was on March 2, 2012 that the Supreme Court appointed Justice Bedi, a former SC judge, as Chairman of the Monitoring Committee to monitor the investigation carried out by the Special Task Force(STF) constituted by the Gujarat government to investigate the cases of custodial deaths. The report is only regarding the 17 cases which were specifically referred to STF.

The Supreme Court’s intervention came in the petitions filed by journalist B G Verghese (since expired), poet-lyricist Javed Akhthar and social worker Shabnam Hashmi, who alleged that the police encounters were fake and state-managed.

On Monday, a Bench comprising Justice SK Kaul and Justice Ahsanuddin Amaullah had listed the matter to ensure that the State of Gujarat has complied with its order dated 18.01.2023. In the said order, the Bench had asked the State Government to extract the record relating to these three encounters, make copies and circulate it to all the parties before us. It had also asked to provide separate paper books for the three encounters for convenience. Solicitor General of India, Mr. Tushar Mehta appearing for the State Government informed the Bench that it has complied with the order of the Court. However, he expressed reservation in sharing the record with the petitioner. Senior Advocate, Mr. Mukul Rohatgi representing the officers in the ‘fake’ encounters supported the Solicitor General’s submission in this regard. Considering the same, the Bench recorded in the order that it would be required to ‘address this issue’. To do the same, it directed the matter to be listed on the regular board on 12th July, 2023.

Mr. Mehta submitted that the State Government has received letters from the officer requesting not to share the record of the investigation carried out under the provision of the Cr.P.C. with the petitioners. He added that the record can be shared with the potential accused, the Court and the Public Prosecutor. Mr. Mehta argued that the petitioners being strangers with oblique motive should not be given access to these documents -

“These two petitions are people staying in other states, they have identified a particular period, have identified some encounters…They are not concerned with encounters in other States…There is a serious doubt regarding the locus and the motive behind the petition.”

Justice Kaul asked the Solicitor General, “Who appointed the enquiry?”

Mr Mehta responded that the limited issue is with respect to the locus of the petitions which he is inclined to assail.

Justice Kaul asked him about the stand of the State Government with respect to implementation of the report submitted by Justice Bedi, “This enquiry was directed by this Court…An enquiry was conducted by a retired judge of this court. I don’t know whether your stand is that the report that has come should be implemented or not implemented. What is the stand?”

Mr. Mehta responded, “We have something to say on the report.”

Justice Kaul stated, “I am taking that you are opposing the implementation of the report.”

Mr. Rohatgi submitted, “So am I.”

The Solicitor General implored the Bench to hear the parties on the issue of locus at the very threshold. He submitted, “Your lordship can hear all of us whether the material on record is to be shared with the petitioners or not. “

Mr. Rohatgi argued that after the report has been submitted the petitioner has no role to play; it is now between the Court and the accused officers. He vehemently objected to the sharing of records of the three encounters with the petitioners.

“I have a very serious objection. Once a report is now between the court and me. There cannot be a situation where all the documents are shared with somebody else who is not PP”, Mr. Rohatgi submitted.

Mr. Mehta added -

“There are judgments which say that strangers cannot have access to these documents…This is selective public interest. That would be a relevant consideration for sharing the record.”

Advocate, Mr. Prashant Bhushan appearing for one of the petitioners submitted that there in its judgment in PUCL v. State of Maharashtra, the Apex Court had laid down guidelines as to what is to be done in cases of killing in police encounters. He stated that an FIR is required to be registered and thereafter an independent agency is to carry out the investigation. Senior Advocate, Ms. Nitya Ramakrishnan appearing for another petitioner supported Mr. Bhushan’s argument to follow the guidelines laid down in the PUCL judgment.

The Bench was of the opinion that it has to hear arguments made by all the parties in the matter and kept it for hearing in July, 2023.

[Case Title: BG. Verghese v. UoI And Anr. WP(Crl) No. 31/2007]