Filed on behalf of the Director General of Police, Counter Affidavit states that the encounter of Gangster Vikas Dubey was not a manufactured one but real as Dubey's motive was to flee and kill the Cops who were guarding him. The reply states that the apprehension of an encounter of Vikas Dubey by the Petitioners arises "from fertile imagination of advisors and defenders of criminals".
The Government of Uttar Pradesh also states that it has constituted a Judicial Inquiry Commission to inter alia enquire into the alleged collusion of accused and his associates with police and other departments. Thus, the writ petition under Article 32 may not be exercised as it is an "independent and neutral investigation going on strictly in accordance with the Code of Criminal Procedure"
The SIT is being headed by UP Additional Chief Secretary Sh. Sanjay Bhoosreddy. The Additional Director General of Police Shri Hariram Sharma and DIG Shri Ravindra Gaud will also be part of the SIT team.
In light of this, it states at the beginning that,
"The State of Uttar Pradesh is filing this Affidavit for the purpose of -
a. Satisfying this Hon'ble Court that true facts as reflected hereunder reveal that the incident in question can never be termed as 'fake encounter' looking at the incident in totality;
b. The State Government has taken all steps to ensure that even a suspicion does not remain on the said incident and has acted proactively."
Narrating the sequence of events which lead to the eventual death of Vikas Dubey, the Government highlights that it was the result of a cross-fire between Dubey and the Police Personnel after the SUV carrying him overturned due to "heavy rainfall" which started at Barajor Toll Plaza and a "herd of cattle that suddenly came running on the road from the right side". This led to the police personnel getting seriously injured and losing consciousness, during which Dubey snatched the pistol from one of the Personnel and escaped.
Subsequently, a vehicle of Special Task Force (STF) which was behind the SUV reached the spot and Dubey began firing "indiscriminately" towards the STF, after which the STF personnel fired six shots at Dubey in "Self Defence".
"he fired nine rounds in all by which Dy. SP Shri TB Singh was hit in the chest but survived as he was wearing a Bullet proof jacket. The STF team asked gangster Vikas Dubey to surrender but he continued to flee and fire. Two STF personnel suffered firearm injuries. In self defence, the members of STF team fired six shots at Vikas Dubey. Three shots hit gangster Vikas Dubey. He was then rushed to the hospital where he was declared dead."
The affidavit also seeks to place on record some facts, which in the view of the UP Govt. have been "misconceived". In light of this, the affidavit brings out the following to the fore (note that this is a crux of facts as laid down by the State Government):
1) Vikas Dubey had not surrendered. The accused was identified by the Mahakaal Temple by the Samiti Authorities from where he was taken into custody by the Ujjain Police, the information of which was shared with UP Police.
2) Vikas Dubey was being transferred from vehicle to vehicle to ensure security and alertness.
3) Vikas Dubey was not handcuffed because there were 15 police personnel and 3 vehicles to escort the accused directly to the court at Kanpur, he had to be produced before Court within 24 hours - which was expiring on July 10 at 10 AM.
4) No media vehicle was stopped by UP police. The vehicle of Republic TV & Aaj Tak reached the accident site immediately. Police claims that there is also a video of "heavy rains".
5) No locals on site claiming they heard gunshot and no witnesses to accident as no habitation or houses near site of incident. No pedestrian movement due to heavy rains.
6) Regarding apprehension of his encounter a day before he was killed as state din the Writ petition, the affidavit states that "this seems to be arising from fertile imagination of advisors and defenders of criminals than reality"
7) Regarding the issue of Vikas Dubey being unable to run as he had an iron rod implant and was seen limping earlier, the Govt. has stated that Dubey was "perfectly mobile".
8) Six bullets fired instead of 4, which is being wrongly claimed, the police states. "It was a close and face to face exchange of fire in furtherance of self-defence by Police".
9) Accused had fired 9 rounds at the STF team and he was facing the police while firing. Dubey did not surrender "even after warning and continued to fire on the police team. Only three bullet shots hit the accused. It was a close and face to face exchange of fire in furtherance of self defence". This is why, the affidavit states, no bullet was shot in the back when Dubey was running away.
10) Answering the question of what secrets Dubey had with him that could have exposed the nexus between him and the police/politicians, the govt. states that it has constituted a Judicial Inquiry commission to enquire into the same.
11) Vikas Dubey's name was in the list of wanted criminals in Kanpur and he was carrying a reward was Rs. 5 Lac on him.
12) No decision of bringing Dubey on a chartered plane was taken at any stage and only an STF teal was stationed for intelligence collection and arrest and Gwalior.
13) There were ample skid marks of the vehicles all over the accident site and video of the damage is on case record.
The Supreme Court on July 14 orally remarked that it was inclined to appoint a Committee headed by a Retired Judge, just as it had done on earlier occasion in the Hyderabad Encounter Case.
A bench of Chief Justice SA Bobde, N. Subhash Reddy & AS Bopanna also granted time to Solicitor General Tushar Mehta, appearing for State of Uttar Pradesh to file a reply in the plea seeking a CBI monitored investigation into the alleged encounter of accused Vikas Dubey and his three aides on July 10.
The CJI also told petitioner, Ghanshyam Upadhyay, that the Court was not inclined to "monitor" the investigation. It is pertinent to mention that the Top Court had formed a committee led by former Supreme Court of India judge J. VS Sirpukar to probe Hyderabad police encounter.
The SG also informed the Court that a reply on behalf of State of Uttar Pradesh shall come on record by Thursday, July 9 and that it may "satisfy" the Court that the State had already taken enough steps.
A day before the encounter killing of gangster Vikas Dubey, a petition was filed 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".
Filed by Advocate Ghanshyam Upadhyay, the plea, therefore, 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 date on which it was prayed that the plea be listed, allegedly because he was trying to escape from the Police.
The plea now seeks a CBI monitored investigation into the death of all the accused and strict action is to be taken against the policemen and all those are who are involved in the killing of the four accused.
In light of Dubey's alleged connections with high profile politicians and police officials, the plea prays for an urgent investigation by an independent investigation agency like CBI, under the supervision and control of the Supreme Court, while professing that the Petitioner has no sympathy for the accused, but is in great pain to see the complete lawlessness and extreme high-handed action on the part of the police machineries.