Ex-SC judge to be in UP Dubey panel as CJI says ‘law needs arrest, trial’

The state government was represented by Solicitor General of India Tushar Mehta while former Solicitor General Harish Salve appeared for the UP Police.

The Court was hearing a clutch of petitions seeking an independent inquiry into the encounters leading to the death of Dubey and his associates. One of the petitioners, the NGO People’s Union for Civil Liberties (PUCL), sought an investigation into all the police encounters in UP.

UP Director General of Police Hitesh Chandra Awasthy had submitted in an affidavit that the state had already set up a probe headed by retired Allahabad High Court judge Justice Shashi Kant Agarwal to investigate the July 10 incident.

Mehta reiterated this on Monday, adding that the “person who was killed is a person who has already shown his propensity and ability to fire at police and kill them”.

When the Solicitor General pointed out that “he (Dubey) was on parole… was facing 64 FIRs…”, the CJI said they were well aware of the gangster’s past. “You don’t need to tell us about Dubey.”

At the previous hearing, Justice Bobde had referred to the action taken by the Court in the case of the December 6, 2019, encounter, killing four alleged rapists in Hyderabad, and hinted that it might adopt a similar process in the Dubey case too. A Bench headed by the CJI had then ordered a probe by a three-member commission, headed by its former judge Justice V S Sirpurkar and including an ex-Bombay High Court judge and a former CBI director.

On Monday, the CJI said, “We also understand there is a big difference between what happened in Telangana and this… But you must also understand that as a state you have a responsibility to maintain rule of law…That requires arrest and conviction if found guilty,” Justice Bobde said. “Like in Telangana, you add an SC judge and a retired police officer to (the probe) committee.”

Salve had sought to draw a distinction between the Dubey and Hyderabad encounters, saying that in the latter the concern was whether it was a case of police vigilantism while the UP case was about a “dreaded gangster”.

“Even police have fundamental rights. There is a dreaded terrorist and if police have exercised their right to self-defence, has it exceeded the right to self-defence? Was it just a case of petty trigger finger, or something genuine?” Salve said, adding “this is a dramatic arrest of a man who has slaughtered police personnel… We have to also not demoralise the force”.

While not agreeing with this contention, the Court made its displeasure evident that a history-sheeter like Dubey had managed to get bail.

While the Court first asked UP to nominate members for the new panel, it then said, “You don’t make the appointment, you give the names.” Chief Justice Bobde said they were making this suggestion as the coronavirus pandemic would make it difficult for a person to move from one state to another for the inquiry. “Nothing is happening in the Telangana matter… So we want someone who is already there (in UP) to look into it.”

Appearing for the PUCL, Senior Advocate Sanjay Parikh called for an inquiry by a sitting SC judge into the “thousands of encounters” that had taken place in UP. The PUCL also questioned statements by ruling party members allegedly legitimising the encounters.

The CJI said the court could not spare a sitting SC judge for the same and added that the PUCL plea will be heard separately. Later, the CJI, turning to the Solicitor General, said, “if Chief Minister has made some statements, Deputy Chief Minister has made some statements & some things have happened, you please look into it also, if it (the matter) doesn’t get cluttered”.

Justice Bobde added, “What is at stake is not one incident in UP… What’s at stake is this whole system.” However, the Bench did not pass any order to this effect and said it will take up the matter after four weeks.