The Supreme Court has directed the State of Uttar Pradesh to place on record a draft notification with a list of suggested names of retired Supreme Court judges and police officials, who are to be inducted into the Commission for investigating the alleged encounter of Vikas Dubey and his five co-accused.
A Bench comprising of Chief Justice of India SA Bobde, and Justice Bopanna and Justice Ramasubramanian was hearing a batch of petitions regarding the killing of 8 policemen in Kanpur, UP on the 2nd of July, and the subsequent alleged encounter of Dubey and his aides.
The pleas which had been filed before the Supreme Court, prayed for an independent investigation by the CBI or NIA into the alleged encounters. The Court further directed Solicitor-General Tushar Mehta, appearing on behalf of the State of Uttar Pradesh, to look into the plea filed by PUCL for formation of guidelines pertaining to the rising number of encounter killings in the State of Uttar Pradesh. A day before the alleged encounter killing of gangster Vikas Dubey, Advocate Ghanshyam Upadhyay had filed the petition before the Supreme Court seeking for an investigation into the "killing/alleged encounter" of his five co-accused by the Uttar Pradesh Police and hinted at the possible killing of Dubey.
"…there is every possibility that even accused Vikas Dubey shall be killed by Uttar Pradesh Police like other co-accused once his custody is obtained Uttar Pradesh Police".
The plea prayed for a thorough investigation into the "killing/alleged encounter of four accused who along with co-accused Vikas Dubey were alleged to be involved in killing of eight policemen in district Kanpur on 02.07.2020 which is now known as Kanpur Kand and which has rocked and shocked the entire nation".
While the petition did not get listed before the Court on July 10, Dubey was killed by the Uttar Pradesh Police on the same on which it was prayed that the plea be listed, allegedly because he was trying to escape from the Police. Today, the SG Tushar Mehta submitted before the Court that the Dubey was a person of questionable character, with 65 FIRs pending against him.He had further displayed his propensity toward violence by killing 8 policemen.
The CJI, however, dismissed this argument by stating that the Court was aware of Dubey's criminal antecedents; it was the circumstance under which he was killed which was pertinent. He further distinguished between the Hyderabad Encounter and the UP Encounter, but noted that it was the State's duty to uphold the rule of law.
"If you want to tell us what he was, there is already enough on record about his criminal antecedents. The circumstances under which he was killed are important here. The rapists killed in Hyderabad is different from Vikas Dubey Encounter. You, as a State, have to uphold the rule of law. It is your duty to do so."
The CJI then went on to ask the SG if he was willing to appoint a police official and a retired Supreme Court Judge in the Judicial Commission which had been formed by the UP Government to investigate into the encounter. The Petitioners had, in their Rejoinders, raised issued raises regarding the constitution of the Commission by the State of UP and had averred that the State machineries should not have any role to play in the investigation, and the same should be conducted entirely under the aegis of the Supreme Court by an independent investigation authority such as NIA or CBI.
However, when the SG stated that Committee would have a formed Judge and a Retired Police Officer as well, Advocate Prashant Bhushan interjected and informed the Court that the Committee should be appointed by the Court, and not the State.
Bhushan then addressed the Court in the matter of PUCL v. Union of India, which was regarding the "fake" encounters that had been taking place in the State of UP.
Senior Advocate Sanjay Parikh, also appearing on behalf of PUCL, began to apprise the Court about the huge number of encounters which take place in the State of UP. He further sought for an independent investigation, monitored by a Supreme Court Judge. When the CJI responded that the Court was inclined to form a Committed headed by a former SC Judge and a former police officer,Parikh pointed at the lackadaisical approach adopted in the Hyderabad Encounter.
However, the CJI informed Parikh that the issue at hand was Vikas Dubey's encounter, and broader issues pertaining to the encounters in UP would be heard later.
"We'll take up your issue after some time. Let us focus on the Vikas Dubey Encounter. We don't want to clutter up this inquiry since you have many grievances. Let us start this inquiry and then we will hear you."
Senior Advocate Harish Salve, appearing on behalf of DG of UP Police, then began his submissions by averring that the Vikas Dubey case was different from the Hyderabad Case.
"There is a growing tendency for vigilantism. Even police officers have fundamental rights. This may not go down very well with the people. The inquiry will examine whether this was excess force or self-defence. The kind of person we are dealing with; this was a man who slaughtered policemen. I am not saying this to invoke any emotion. But, the Court appointing a Committee to look into the issue will demoralize the police force."
The CJI, unconvinced by Salve's argument, responded,
"The Rule of Law cannot demoralize the Police Force".
Advocate Ghanshyam Upadhyay also made a submission about the Affidavit submitted by the UP Police.
"The entire Affidavit only states Vikas Dubey. They have not even taken into account the others. Prabhat Mishra, he was just 16 years old – he was killed too! He was a minor! A school-going boy!" The CJI, noting this, informed the SG that the Court was "appalled" at the fact that a person like Dubey, was let out on bail. "This is a failure. We want an accurate report of all the orders".
Advocate Vishal Tiwar, petitioner in a connected matter, also apprised the Court that the similarity in both the Hyderabad Encounter and the Vikas Dubey Encounter was that the accused were being taken by transit remand. However, his statement regarding the fact that judges were not dependable, was not taken lightly by the Court.
The CJI responded to Tiwari, "Are you saying that Judges are State-sponsored? This mudslinging has to stop at some point in time? What are you trying to say? What is at stake is not the one incident in Uttar Pradesh. What is at stake is the whole system. Remember that."
Accordingly, the Court directed Salve to bring on record a notification with suggested names of retired Judges and Police officers, in order for the Court to select the names. Salve responded that the notification would be drafted and placed on record day after, that is on the 22nd of July. The Court further directed the SG to look into the issues raised by Parikh.
"Please look into the issue that Mr. Parikh is raising. If the CM has made allegedly objectionable statements or Deputy CM has done so, please look into it." The matter will now be heard on Wednesday, 22nd July.