Vikas Dubey case: SC directs UP to reconstitute probe committee; include retired SC judge & police officer

The Supreme Court on Monday asked the state of Uttar Pradesh to include a retired Supreme Court judge and a retired police officer in the committee set up to probe the encounter killing of gangster Vikas Dubey and his aides, legal news website BarandBench.com has reported.

A three-judge Bench of Chief Justice of India SA Bobde, AS Bopanna and V Ramasubramanian was hearing a group of petitions seeking a probe into the encounter killing of gangster Vikas Dubey on July 10.

During Monday’s hearing, the court expressed its shock at the fact that a criminal like Vikas Dubey was allowed to be enlarged on bail. It thus sought a report concerning such bail orders.

"We are appalled at the fact that such a person was released on bail. This is a failure of an institution where he was released on bail and did this. We need a report on such bail orders," CJI SA Bobde said.

Solicitor General Tushar Mehta, representing the state of Uttar Pradesh, told the court that the investigation in the matter is going on as per the law. Mehta told the Court that not only was Dubey a history-sheeter, but he had also demonstrated his "his capability to shoot at police just a few days back before he died". Mehta was referring to the Kanpur incident where as many as eight police personnel were shot at by Dubey and his aides.

SG Mehta further submitted that Dubey had mutilated the bodies of the policemen killed and had even fired shots at the police when he was being taken from Ujjain to Kanpur.

In response, CJI SA Bobde said, "You don't have to tell us who Vikas Dubey was. There are close to 50 cases against him."

"I am just trying to satisfy your conscience", was Mehta's reply.

CJI SA Bobde, however, reminded Mehta that it is the duty of the State to ensure law and order and to uphold the rule of law. The court went on to draw a distinction between Dubey's case and the Hyderabad encounter of December 2019, where four rape accused were killed by the state police.

"There is a difference in who was killed here and in Hyderabad case where the (alleged) rapists did not have any arms. But you as a state government, you are responsible to maintain rule of law. It requires arrests, trial and sentencing," it said.

While taking note of the developments in the issue, the Supreme Court noted that a committee monitored by a retired High Court Judge has been formed by the state of Uttar Pradesh. It sought to know from Mehta if a retired Supreme Court judge and a former police officer can be added to the committee.

People's Union of Civil Liberties (PUCL), represented by Senior Advocate Sanjay Parikh and advocate Prashant Bhushan, informed the court that some politicians had hailed the encounter killing. It thus argued that an independent inquiry in the matter is needed.

It was further prayed that a sitting Supreme Court judge be appointed to the committee. This prayer, however, was rejected by the court.

"I cannot have a sitting Supreme Court judge looking into the committee. We are going to ensure the formation of a committee; the retired High Court judge-led committee will now have a retired Supreme Court judge and a former police official," CJI SA Bobde said.

PUCL had filed an application in the case to highlight the increased number of encounters in the state. The court stated that this larger question would be taken up at a later stage, and not along with the pleas concerning Dubey's encounter killing.

Senior Counsel Harish Salve, appearing for the Uttar Pradesh Police, raised the concern of morale of the police force. He argued that this encounter case does not warrant a probe by a committee of this nature or even judicial intervention, lest it demoralizes the police. He said, "The Telangana matter was different, and the present case is on a different footing. If you have a dreaded terrorist on your hands then was there use of excessive force by the police...It needs to be seen if the police acted in excess...This was a case where a man was being arrested who had slaughtered policemen."

The court, however, opined that an inquiry will only strengthen the morale of the police force and not demoralise them.

Thus, SG Mehta was asked to submit a draft notification of the re-constituted committee by July 22 and to hand it over to the Supreme Court to issue final appointment orders thereafter.

The court also asked Mehta to look into the content of the statements made by the Uttar Pradesh Chief Minister Yogi Adityanath and other ministers lauding the encounter killing.

Petitioner Ghanshyam Upadhyay sought to apprise the Court that it was not just Dubey who was killed by encounter. His other aides, including one minor person, were also killed by the UP Police, Upadhyay said. The court, however, asked Upadhyay to make these submissions and representations before the committee appointed.

Similarly, Parikh was also told by the court to make his suggestions and recommendations to the committee.

In its affidavit filed last week, the Uttar Pradesh Police informed the Supreme Court that Vikas Dubey had never surrendered, but was nabbed after a tip-off from the Madhya Pradesh Police.

In reply to the UP Police, petitioner-in-person Anoop Kumar Awasthi told the Supreme Court that the judicial inquiry commission constituted by the Yogi Adityanath led government is “illegal” and that the members of the Special Investigating Team (SIT) were facing fake encounter charges themselves.

Awasthi contended that the judicial inquiry commission constituted by the UP government was illegal as it was not in accordance with Section 3 of the Commissions of Inquiry Act, 1952, which mandates passing of a resolution by each House of the state assembly, followed by a gazette notification.

On July 14, the Supreme Court had sought a response from the state of Uttar Pradesh on the pleas seeking a probe into the encounter killing of gangster Vikas Dubey. The Bench headed by CJI Bobde had also hinted at setting up a committee to look into the matter.

The UP Police, through its standing counsel advocate Garima Prashad, had submitted that the state authorities have strictly worked in accordance with the law and guidelines laid down by the Supreme Court in PUCL v. Union of India in 2014. It was further averred that the authorities had also intimated the National Human Rights Commission (NHRC) within 24 hours of the incident, “which clearly shows a lack of malafide”.

The current SIT formed by the Yogi Adityanath government is headed by UP Additional Chief Secretary, Sanjay Bhoosreddy. Other members of the SIT are Hari Ram Sharma and J Ravinder Gaur, both IPS officers. The SIT has been directed to submit a report to the state government before July 31.