Over 3 years after govt suspended life sentence, HC flays authorities’ ‘non-application of mind’ while giving favourable opinions for release|

Mumbai Mirror

Setting aside the release order of 11 of the 21 convicts serving a life term for the 2006 fake encounter of gangster Lakhanbhaiya, the Bombay High Court on Wednesday observed that “all agencies of the government had submitted reports to facilitate the release”.

In a 45-page judgment, a division bench of Justices BP Dharmadhikari and Revati Mohite-Dere quashed the December 2015 order of the state government that suspended the sentence of these 11 convicts—all of them policemen—for six months and ordered their immediate release.

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The “agencies” criticised by the HC for “non-application of mind” for expressing opinions in favour of suspension of the sentence are then Special CBI Judge MB Gosavi, then Mumbai Police Commissioner Rakesh Maria, and then Additional Director General and Inspector General of Police (Prisons) Bhushan Kumar Upadhyay. At that time, Gosavi was the special CBI judge hearing the Sohrabuddin Sheikh, Tulsiram Prajapati and Kauser Bi murder cases, who discharged various accused. Of these, BJP President Amit Shah was the first one to be discharged, within a month of Gosavi taking charge of the case.

Ramnarayan Gupta alias Lakhanbhaiya, an alleged member of gangster Chhota Rajan, was killed in a fake police encounter in November 2006 in Andheri.

Twenty-two accused, including 14 policemen, were charged with his murder and after a trial, 21 were convicted and sentenced to a life term. Only one—encounter specialist Pradeep Sharma—was acquitted in July 2013. Two years later, the state government released 11 policemen based on a favourable opinion by Judge Gosavi. Advocate Ramprasad Gupta, Lakhanbhaiya’s brother and complainant in the case, challenged the release, following which the HC stayed the order. Admitting the case for a detailed hearing in December 2015, the court directed all 11 convicts to surrender.

Wednesday’s judgment came after a detailed hearing on Ramprasad’s petition, represented by Advocate Yug Chaudhry.

Mirror had on January 20 reported Chaudhry’s claim that the convicts had been freed in contravention of several norms. Chaudhry had claimed that the plea for the convicts’ release was submitted by the then Thane jail superintendent, and not the state government, as has been provisioned in Section 432 of the Criminal Procedure Code.

On Wednesday, the court, refrained from passing a judgment on whether the government has the powers to release a convict, but said the suspension of sentence and the subsequent release order were not sustainable “on the face of it.”

The bench accepted arguments made by Chaudhry and rejected submissions made by senior advocate MP Rao for the state government as well as senior advocate Amit Desai for the 11 convicts.

Gosavi, in his orders of October 5 and October 21, 2015, had noted that he had called for a copy of the trial court judgment, and that the Thane jail officer had personally met him and requested him to pass an order “on a priority basis”. His order said that he had no opportunity to go through the papers of investigation and notes of evidence, and that the accused “may have requested the HC for suspension of their sentence”.

The HC bench observed that Gosavi “was under no obligation to oblige the jail authorities, in the absence of sufficient material being placed before him to give an opinion, more particularly, as it was not even sought by the state government.” He later added another name to the list of convicts on which he had already expressed a favourable opinion, without specifically justifying this addition.

On Maria, the HC said his favourable opinion on the issue wrongly took note of the bail granted to non-policemen accused in the case, despite the fact that it was only policemen who had sought release. The HC order also noted that when the state government sought his opinion, he was supposed to talk about the seriousness of crime as well, which he failed to mention. Maria also did not mention that the bail application of one of the convicted policeman had been rejected by the HC, and thereafter by the Supreme Court.

On Upadhyay, the HC order said he expressed a favourable opinion in respect of three convicts on whom Gosavi had given a negative opinion.

Then Police Commissioner Rakesh Maria (left) and then IGP (Prisons) Bhushan Kumar Upadhyay are among the three ‘agencies’ whom the HC has criticised