"While fighting lawless, State cannot become lawless", Petitioner in Vikas Dubey Encounter Case rebuts UP Police reply

Petitioner-in-person Anoop Prakash Awasthi who sought a CBI or NIA monitored probe into the extra-judicial killing of Vikas Dubey by the Uttar Pradesh Police has told the Supreme Court that the judicial inquiry commission constituted by Yogi Adityanath led government is “illegal” and that the members of the Special Investigating Team (SIT) were facing fake encounter charges.

Awasthi’s affidavit came in response to the reply filed by the Uttar Pradesh police which had stated that Vikas Dubey had never surrendered, but was nabbed after a tip-off from the Madhya Pradesh Police.

The petitioner contends that the judicial inquiry commission constituted by the UP Government in the matter was illegal as it was not in accordance with Section 3 of the Commission of Inquiry Act, 1952, which mandates passing of a resolution by each house of the State followed by a gazette notification.

The petitioner further states that even if the houses cannot assemble due to COVID-19. The Governor of the State was empowered to issue an ordinance under Article 213 of the Constitution. However, this case, neither of the two conditions were fulfilled. Thus, the action of the State government contravenes the Supreme Court verdict in V. Sudeier v. Bar Council of India (1999), the petitioner states.

Awasthi further claims that Justice Shashi Kant Agarwal, who has been referred to as a retired judge of the Allahabad High Court selected to head the inquiry commission, is not “retired” as he had “resigned from the position of Judge of High Court of Allahabad upon his transfer from said court to the High Court of Jharkhand on January 5, 2005, under controversial circumstances.”

The petitioner also states that one of the members of the SIT namely J Ravinder Gaur (IPS) Deputy Inspector General of Police is “an accused of a fake encounter of one Mukul Gupta a medicine dealer on 30th June 2007, who was killed in Bareli.”

The rejoinder affidavit states that though the CBI had sought permission to charge sheet Gaur, his sanction is still pending from the State government.

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 Chief Justice of India SA Bobde had also hinted at setting up a committee to look into the matter.

The UP Police, through its standing counsel advocate Garima Prashad, has 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 intimated the National Human Rights Commission (NHRC) within 24 hours of the incident, “which clearly shows a lack of malafide.”

The UP Police had also claimed that the media channels were never stopped from following the vehicle carrying Dubey and that some of the channels even covered the accident.

However, Awasthi in his reply states that there was a show on India TV on July 9 where predictions were made about Dubey being encountered. The petitioner now states that this show proves that “orders of the encounter came from the top level of the government of Uttar Pradesh as such investigation of the incident by any agency appointed by the State of Uttar Pradesh shall run the reasonable risk of institutional bias.”

The petitioner has stated that “while fighting a lawless, the state cannot go to the extent of becoming lawless.”

“Fighting almost like a gang war by the state with a gangster is not permissible in a democratic civil society. I state the law enforcement agencies have to enforce the rule of law in legal way and not otherwise,” reads the rejoinder affidavit.