N. Arumugham,. J
1. These Criminal Writ Petitions involve common questions of law and facts. Contentions raised and submissions made in these petitions are identical. Hence, these petitions are heard together and disposed of by delivering this common judgment.
2. The petitioners, in the present two writ petitions, are the wives of one Vikas Waghmare and Lahoo Angare who, along with one another, by name Yeshudas Gangawane, claimed to be the vegetable vendors, use to carry on their business at New Mumbai, Vikas Waghmare was residing with the petitioner at Sector No. 18, Room No. 802, Koparkhyrane, New Mumbai, Lahoo Angare is claimed to have been residing with his wife the petitioner, in writ petition No. 228 of 1998 at Kharat Chawl, Room No. 2, Ashok Tekdi, Hanuman Nagar, Bhandup (W), Mumbai 400078. There was no writ petition filed by and on behalf of the third person, by name, Yeshudas Gangawane.
3. It is also stated that at about 9 a.m. on 19-3-1997, one Lahoo Angare and Yeshudas Gangawane along with their wives visited the house of Vikas Waghmare to sec his ailing son and thus all the three, viz. Lahoo Angare, Vikas Waghmare and Yeshudas Gangawane, were at the house of Vikas Waghmare and at that time, a few policemen, in plain clothes, entered into the house of Vikas Waghmare and took all the three by stating that they are required to be enquired in connection with some matter and that they would be backed within a short time. The policemen, in plain clothes, had come in two cars, one bearing a Maruti Gypsy having blue colour with Grey-hood bearing Registration No. MH-01-M-607 and the other bearing a Mahindra Commander Jeep having dark blue colour bearing Registration No. MH-01-M-348. The said policemen in plain clothes informed the above fact of enquiry from them to the two petitioners in these petitions, being the ladies and thus the said three persons were taken away.
4. Though the petitioners waited for a long time for arrival of their husbands and another, but the aforesaid three persons did not turn up which made the petitioners to go to Turbhe, Vashi and Rabale Police Stations to lodge a complaint with regard to the same. However, it is stated that they refused to receive any complaints from them.
5. On the morning of the next day, i.e. 20-3-1997, they had come to know, through the newspapers that the policemen belonging to Unit No. VI, D.C.B.C.l.D. Unit No. VI, having their office at Ghalkopar, had shot dead the said three persons in an encounter and that was how the petitioners came to know that their husbands and another were shot dead by the police. According to the petitioners, the policemen in plain clothes, by practising deception, had induced and insisted the said three persons to accompany them and by taking them to the Linking Road, Goregaon (West), on the pretext of some enquiries, fired shots and killed them and that, therefore, the alleged encounter is a false story and a fake encounter was also projected. It is stated further that neither of the three persons had any weapons with them and that it is common knowledge, when the husbands of these persons were taken from their residence, it was, obvious, that nobody would carry a weapon in his own house. The petitioners have also claimed that the deceased had told that they were not having or carrying any weapons with them.
6. As preplanned, the policemen, above referred, picked up the said three persons and killed them and that thereafter fabricated a story of an encounter and thus they have committed murder in a broad day light. They would further claim that the police did not even bother to inform the petitioners about the alleged encounter or death of their husbands. They would claim further that the husbands of the petitioners were not the members of any gang indulging any illegal or unlawful activities and they have never been convicted by any Court of law.
7. Stating all the facts and their grievances, on 25-3-1997, letters were written by the petitioners to the Commissioner of Police, Mumbai and Thane, Director General of Police, Maharashtra State, the Lokayukta of Maharashtra, the Chief Minister and Dy. Chief Minister and other authorities concerned. However, they had not received any reply, nor there was any kind of response to the letters. The petitioners, being the ladies, were scared to approach the police directly which made them to write letter to various authorities so that the authorities can treat the said letter as FIR and start investigation into the said crime and book the culprits. However and unfortunately no action, so far, has been taken till today and that the petitioners fell that even if any action is taken, it will only be a farce, as the culprits are none others but the police and the police. The petitioners state that it is at the Home Department's connivance that so many encounters have taken place in recent limes which only encourages the police to stage fake encounters and they referred to news item published by the Times of India Newspaper dated 14-6-1997. Thus, the petitioners would claim that the police personnel either belonging to D.C.B. C.I.D. Unit No. VI of Mumbai Police or any other branch, who took their husbands and one another concerned above, have murdered the said three persons and though a long time since has elapsed, no proper or thorough enquiry or investigation has been done and that therefore they have come forward with the filing of these writ petitions under Article 226 of the Constitution of India for the reliefs that the State of Maharashtra Respondent No. 1 to handover investigation of death of the petitioners' husbands either to C.B.I, or to State C.I.D. Pune by treating the petitioners' letter dated 25-3-1997 as FIR by issuing a writ of mandamus and to proceed in accordance with law.
8. The State of Maharashtra the 1st respondent and the Commissioner of Police, Crawford Market, Mumbai and his contemporary officers, Thane, were added as respondent Nos. 2 and 3. Senior Inspector of Police Turbhe, Rabale, Vashi and Ghatkopar, Mumbai, were added as respondent Nos. 4 to 7 in both these writ petitions. A copy of the letter dated 25-3-1997 claimed to have been written by the petitioners to various authorities of the Government of Maharashtra, was relied on which was deemed to be treated as FIR for the above reliefs.
9. On behalf of the respondents, Mr. Pramod Rajaram Rane, Senior Police Inspector, M.O.B., C.B.,C.I.D., Mumbai, Mr. Rangnath T. Kulkarni, Assistant Commissioner of Police at present attached to Central Region, Staff Officer, Mumbai and Mr. Bhagwat Ramchandra Chaudhari, Assistant Police Inspector at present attached to C.l.D. (Intelligence) M.S. Mumbai, have filed their reply sworn affidavits to controvert the very allegations and averments made by the petitioners herein. Mr, Pramod Rajaram Mane, Senior Police Inspector, has filed his first reply sworn affidavit on 10-3-1998 and the second affidavit on 27-3-1998. These two writ petitions were filed on 20-2-1998.
10. It was contended in the reply sworn affidavit filed by Bhagwat Ramchandra Chaudhari, Assistant Police Inspector, on 27-3-1998, inter alia, that on 19-3-1997 at about 11 hours Mr. Choudhari, Assistant Police Inspector received secret and credible intelligence that the gangsters affiliated to Arun Gawali had threatened some businessmen of Eastern Suburb of Mumbai and had demanded ransom of Rs. fifteen lakhs and as the said businessman was called at the junction of Mulund Goregaon Link Road and Cement Godown Road, Mulund (E), Mumbai and that Lahu Waman Angare, Yeshudas Gangawane and their associate Vikas Waghmare were coming on the spot to collect the amount of ransom on behalf of Arun Gawali at about 00.30 hours on 20-3-1997 and that he shared this information with his immediate superior Shri Pramod Rajaram Rane, Senior Police Inspector of D.C.B. C.l.D. Unit VI Mumbai as well as Dy. Commissioner of Police (Detention) Shri D.D. Padsalgikar, Crime Branch, C.l.D., Mumbai by the Senior Inspector of Police Shri P. R. Rane, in turn and that as per the directions of the superior officer, it was decided to lay a trap to arrest the said extortionists on the spot.
11. Under the guidance of the then Assistant Commissioner of Police, Shri R. T. Kulkarni. A trap was laid at the aforesaid spot. viz. at Mulund Goregaon Link Road and Cement Godown Road Junction Mulund (E), Mumbai and that in the said trap, the police formed a team divided into three groups viz. one headed by the Assistant Commissioner of Police, Shri R. T. Kulkarni, another headed by Assistant Police Inspector Shri S. R. Shewale and the third headed by Police Sub Inspector Shri B. M. Deshmukh. It was also stated that all the policemen were briefed about the information and were equipped with necessary materials, particularly bullet proof jackets for the trap followed by a secret watch being held on the said spot from 00.05 hrs. on 20-3-1997. It was also stated that the police vehicles reached the spot and that thereafter their vehicles were sent back by having one private vehicle alone which was made available for the purpose of the said trap which had remained on the spot and that it was decided that the Assistant Commissioner of Police Shri R. T. Kulkarni and the Police Inspector Shri P. R. Rane and the police constables Nos. 23081 and 22724 will constitute the group for over all observation, supervision and guidance and that as such the said group took its position in one of the motor truck parked at the said junction viz. Mulund Goregaon Link Road and Cement Godown Road, Junction, Mulund (E), Mumbai. It was further stated that the other group consisted of Assistant Police Inspector Shewale, Police Sub Inspector Choudhari, two head constables and two police Naik led by the said Inspector Shri Shewale and Shri Choudhari took its position on the road behind the parked truck at the eastern corner of the said spot and the third group consisting of police Sub Inspector Deshmukh, Police Sub Inspector Mule, Head constable 5152 and police constable 23203 took its position across the street, sitting in a private vehicle parked on the western corner of the said junction behind the tree and that it was decided that at the time of actual arrest, Mr. Choudhari on the Eastern side and Police Sub Inspector Mr. Mule on the Western side will take lead to apprehend the accused persons and that they had apprehension in their minds when the gangsters from Arun Gawali gang would be fully equipped with sophisticated weapons and that there might be a shoot out by the gangsters to prevent their arrest and that therefore it was decided to equip the police team with bullet proof jackets.
12. The affidavit further reveals that at about 00.30 hours one Maruti car, i.e. white colour car Maruti-1000 vehicle arrived at the spot from the eastern Express Highway and the three persons alighted from the said car and that the driver of the car remained in the said car which was at some distance on the opposite side of the road and away from the trap which the police had led and that therefore the registration of the said white colour Maruti-1000 car could not be noted. However, it went on to reveal further that the said three persons started searching for somebody and they also started observing the private vehicle which was occupied by the third group of police team and that as Mr. Choudhari identified the said three persons as Lahoo Angare, Yeshudas Gangawane and Vikas Waghmare as he knew these persons by names and faces as he had seen them on earlier occasion as they had been arrested and involved in the earlier offences and that he could easily identify them in the street mercury light on the spot and thus decided to move forward and called upon Lahoo Angare and two others to stop by disclosing his identity as police officer. It was also claimed further that as Mr. Choudhari called upon them to surrender their custody as they were surrounded by the police officers of the D.C.B.C.I.D., within a fraction of a second, Lahoo Angare pulled out a fire arm and directly fired at Mr. Choudhari which bullet hit on the chest of police officer Mr. Choudhari and he was stunned for a moment because of sudden firing by Lahoo Angare and that however he was able to save himself for that movement because of his wearing the bullet proof jacket and that there was eminent danger to his life and also to the lives of other police officers and the policemen and that as the said firing was sudden and direct, Mr. Choudhari claimed that he fired in self defence by his 9mm pistol towards Lahoo Angare and his associates and that at the same time when Lahoo Angare fired at him, two other of his companion tried to flee from the said spot.
13. The affidavit would further demonstrate that they were confronted by the other group of police led by the Sub Inspector Mule and he came forward and called upon them to surrender to the police custody. However, Yeshudas Gangawane and Vikas Waghmare also pulled out the fire arms from their persons and fired directly at police Sub Inspector Mule and that the said Police Sub Inspector Mule was hit by the bullet on his chest and that as he was also wearing the bullet proof jacket, he was saved even though the bullet fired by them also hit upon his chest and thus as there was eminent danger to the police personnel as a whole at the spot, Sub Inspector Mr. Deshmukh and Sub Inspector Mr. Mule fired in self defence and that it was at that time 4th person sitting in Maruti-1000 car of these gangsters, fled away towards the L.BS. Marg and as such Registration number of the car could not be noted, nor secured due to the sudden firing incident.
14. As the three persons, above referred, we injured, the police party rushed towards them a] the said persons were disarmed by the police and that as per the affidavit, it was stated that Lahoo Angare was armed with revolver of British Made455 Caliber known as British Bull Dog and had fired all five bullets directly towards the police and that Yeshudas Gangawane was armed with country made revolver (five chamber) and Vikas Waghmare was armed with Double Barrel Countrymade Hand Gun and these fire arms were used by all the said three persons in the said incident at the police officers.
15. The affidavit would further reveal that Mr. Choudhari, Assistant Sub Inspector of Police had fired five rounds by his 9 mm pistol and Police Sub Inspector Mr. Deshmukh fired 2 rounds from his 38 revolver and Police Sub Inspector Mr. Mule fired three rounds from 9 mm pistol.
16. The reply affidavit would further reveal that immediately after the incident and their making disabled, all the said three injured persons were removed to Rajwadi Hospital, Ghatkopar, Mumbai for medical treatment by a wireless mobile van and they were taken to the medical officers who thoroughly examined the three persons and declared them already dead before admission. A statement was recorded from the Assistant Sub Inspector of Police Mr. Choudhari in respect of the entire incident and occurrence which was subsequently registered as C.R. No. 110 of 1997 by the Mulund Police Station and that the bodies of all the three persons were taken to J. J. Hospital for the purpose of autopsy and after the autopsy was over, autopsy was handed over to coroner from whom the relatives of the deceased viz. mother of the two and brother of one had taken the corpse from the coroner.
17. Thus, D.C.B.C.T.D. Unit-VI, Mumbai had acted on the intelligence, received to the effect that the above mentioned three persons were to visit the spot in which the trap had been laid during the night to collect the ransom of Rs. fifteen lacs from the businessman on behalf of Arun Gawali and that, as such, the police had acted during the course of performing their duties lawfully after they tried their level best to arrest the said three persons and as the said three persons suddenly opened the fire with the arms in their custody, posing eminent danger to the life of the, police personnel, the police had retaliated by way if self defence and that during encounter the said three persons had sustained the injuries to which they were succumbed to and thus there was a true encounter which had taken place while the police tried to secure and arrest the said three persons after having taken every care to secure them without opening the fire.
18. Mr. Pramod Rajaram Rane, Senior Police Inspector, M.O.B., C.B.C.I.D. Mumbai who took active part in the said encounter, in the two reply sworn affidavits, has supported and revealed the said contentions as given by Mr. Choudhari, Assistant Sub Inspector. According to him, he has not only denied that the abovesaid three persons were not the members of any gang indulging in activities as claimed by these writ petitioners and that he would claim further that Lahoo Angare, Vikas Waghmare and Yeshudas Gangawane were dreaded- criminals affiliated to Arun Gawali Gang and that the said three persons were involved in several cases for the commission of following offences : Vikas Waghmare was one of the accused persons in C.R. No. 237/93 of Nagpad Police Station (D.C.B., C.I.D. C.R. No. 87/93, Tada Spl. Case No. 28/94) under Sections 120(b), 302, 149, 212, 34, IPC r/w 325(1-b), Sections 3(2)(3)(4)(5), 5 & 6 of Tada (P) Act r/w Section 37(a) r/w Section 135 of the Bombay Police Act and that in the said case he was arrested for the said offences on 23-6-1993 and was released on bail by the Court of Sessions Mumbai on 9-8-1993 and that the said case was known as 'ZiyyaUddinBukhari'. M.L.A. Murder case. It was stated in the reply affidavit that Lahu Waman Angare was involved in more than ten cases including one murder case along with other offences under the Arms Act and several other offences and that in so far as the third person Yeshudas Gangawane is concerned, it is stated that he is also involved in four cases including the murder case. He denied categorically that the said three persons were poor innocent doing business in vegetables and had no arms or involved in any unlawful or illegal activities. In other respect, in his two reply sworn affidavits, this officer has categorically stated that these three persons were not only the close associates of noted and notorious gangsters of Arun Gawali but were always acted as his hitmen used in indulgence of extorting the ransom from the members of the society of all the cadres on behalf of his Master viz. Arun Gawali.
19. In the reply sworn affidavit, Mr. Rangnath T. Kulkarni, Assistant Commissioner of Police, supported the claim made by Mr. Choudhari and Mr. Rane and also denied that the three persons shot dead were poor innocent business people and that there was realty an encounter which had taken place between the police and the said three persons by prompting them but however succumbed to their injuries caused by retaliation by the police. He also denied that the two vehicles claimed to have been used,by the policemen in plain clothes on the morning of 19-3-1997, were used to pick up and take away the abovesaid three persons. He would further claim that the retaliation made by the police during the encounter was done at his behest and that therefore he is an eye-witness and that therefore he is aware of every detail and in short to say he has supported the claim made in the earlier affidavits filed by the two police officers as aforesaid.
20. He would further claim that after the complaint of Assistant Police Inspector Mr. Choudhari was registered as Crime No. 110 of 1997, the investigation was done by Mulund Police Station which is having the jurisdiction over the said incident where the occurrence took place. The investigation was conducted by the Mulund Police Station in accordance with the procedure and the law and the Rules contemplated thereof and that there were no latches or defects whatsoever in the investigation done in this case. The whole material and the case records and the case diary would clinchingly reveal that there was adequate and ample proof that the three persons above mentioned were the dreaded gangsters of Arun Gawali group and they attempted to extort ransom of Rs. fifteen lacs on that day and on getting the intelligence, the police laid the trap and that while attempting to apprehend and secure the said three persons, they opened the lire upon the police and the police retaliated by way of self defence in order to save their lives and that during the course of doing so, these three persons sustained injuries upon their parts as noted in the post mortem certificates; and consequently they succumbed to their injuries and that thereafter their bodies were handed over to their relatives as provided by law and procedure and the investigation by the police in this regard has been done fully and correctly and that therefore what has been stated in the affidavits and the writ petitions and claimed by the writ petitioners, are not correct and the said writ petitions have been filed for the reliefs very belatedly to get the bad name and demoralize the police. All the three police officials have denied each and every allegation and the claim made by the writ petitioners. Both the petitioners have filed two rejoinder affidavits and by which they have denied all the specific claim made by the police officers in their reply affidavits in toto.
21. We have heard the rival contentions by the learned counsel of the Bar for the respective parties.
22. Mr. Sabnis, learned counsel appearing for and on behalf of the writ petitioners, would contend, firstly, that though the petitioners happened to be the wives of Lahoo Angare and Vikas Waghmare, were whisked away by the police on plain clothes on the morning of 19-3-1997, they had not either revealed or informed the deaths of the two persons to their wives with the result that both the writ petitioners were made to move from one police station to another and it is, thus, the police had acted in. a merciless manner; and that, secondly, both the writ petitioners had come to know that their husbands were killed during the encounter only through the news media on the next day and that the dead bodies of their husbands had not been handed over to them at all and that, thirdly, the injuries found on the said three persons, admittedly, caused by the police, were uniform in nature and that they were caused at vulnerable parts of the human body to make them die instantaneously and that there was not even a single injury or abrasion found upon the persons of any policemen which caused a grave doubt, about the alleged encounter as claimed by the police and that, fourthly the police had not acted in good faith during the encounter even, without admitting for a moment that they did not gave any oral warning or to take any precautionary steps or by using any minimum force to secure them physically and lastly no proper investigation has been done in this case and that whatever had been done is only the recording of statements and that as such no proper and full-fledged investigation has been done in this case, as is evident from the fact that the case properties recovered under the panchnama, were sent to chemical examination very lately and belatedly which shows that there is a grave doubt about the recovery and the investigation done by the police. In support of his contentions and to substantiate the same, Mr. Sabnis, learned counsel appearing for the petitioners further submitted that the encounter claimed by the police in this case is only a farce and a fake encounter and that, in fact, there was no such encounter took place at the place and time and the manner in which it was happened and that therefore, killing of the said three persons by the police through the fake encounter, would clearly fall within the ambit of Article 21 of the Constitution of India and that, therefore, to render justice proper to these petitioners, the reliefs claimed in these writ petitions, must have been granted to the writ petitioners. The learned counsel for the petitioners in support of his claim and contentions, has relied on few case laws during the course of arguments.
23. The learned Additional Public Prosecutor Mr. Rajiv Patil, on the other hand, took every pain in reply to the said contentions made by Mr. Sabnis, the learned counsel for the petitioners and counteracted each and every contention raised by the learned counsel for the petitioners. He contended that there was an encounter happened between 00.30 hours and 00.40 hrs in the early morning of 20-3-1997 at the junction of Mulund-Goregaon Link Road and Cement Godown Road Junction, Mulund (East), Mumbai, as was claimed by the three police officials in their sworn reply affidavits which was the follow-up actions taken by them pursuant to a secret intelligence received to the abovesaid fact by the Assistant Inspector of Police, Mr. Choudhari, by 9 a.m. on 19-3-1997 and that which was followed by a trap led by the police to secure the said three persons and thus the cross firing between themselves and the police party had taken place and that in lieu of retaliation made by the police to the firing of the said three persons, they sustained injuries and succumbed to them. It was the firm contention of the learned Additional Public Prosecutor that the said three persons were not poor innocent people of the society but they belonged to and were associates of a noted and notorious gangster of Mumbai viz. Arun Gawali and these three were the hitmen and close associates and they indulged in extortion the businessmen. On the relevant date of accurrence, they came to the spot and thus they Hid made their attempts, while the police were acting in self defence and thus there was a really an encounter which, though resulted in death of three gangsters, this was done in good faith and in self-defence as contemplated by law. To substantiate these contentions, Mr. Rajiv Patil, learned Additional Public Prosecutor, on our direction, produced the case diary and all the relevant papers in the custody of the police which was the resultant position of the investigation done in the instant case in C.R. No. 110/97 in Mulund Police Station. In the end, it was the very endeavour of the learned Addl. Public Prosecutor to justify the encounter and that there was really an encounter which had happened at the time and the day in which they had claimed and that there were no latches or lacunae left open by the police either prior to or after the encounter and the investigation was carried on by the Mulund Police Station strictly in accordance with law without any latches or brake whatsoever as alleged. Therefore, by citing the case law of the Apex Court, the learned Additional Public Prosecutor strenuously tried to justify the action of the police and prayed for dismissal of the above writ petitions. Continued on 23rd June 1998.
24. In the context of the above rival contentions, we have looked into the case papers, viz. the pleadings particularly raised in the affidavits and the writ petitions itself, rejoinders filed on behalf of the writ petitioners, the reply affidavits filed on behalf of the respondents and the case diary as a whole with the tope-sketch of place of scene on the early morning of 20-3-1997 which was produced by the learned Addl. Public Prosecutor in the open Court and also the case law as a result of which we are able to see that, in the first instance, there was a flaw and very serious one found in the prayer clause (a) of the writ petitions. The prayer clause (a) of the writ petitions mechanically reflects the following :-
(a) Direct the respondent No. 1 to hand over the investigation in case of the death of the petitioners' husbands Vikas Waghmare and Lahoo Angare to either C.B.I, or to State C.I.D. Pune by treating the petitioners' letter dated 25-3-1997 as F.I.R.
Both these writ petitions were conceding filed in the Court on 20-2-1998 after a lapse of nearly 11 months. It is noticed that even after the lapse of eleven months after the death of the said three persons, viz. both the petitioners' husbands and another, they were not sure about the death of their husbands. The above aspect clearly runs counter to their consistent stand taken earlier in the writ petition. From this, we are able to say, at the first instance, that the petitioners in both the writ petitions are not giving the credible claim and the truthful averments. The alleged shooting was happened between 00.30 hours and 00.40 hours on 20-3-1997 at the place Mulund Goregaon Link Road and Cement Godown Road junction, Mulund (East), Mumbai. From the sketch map and the inquest panchnama shown by the learned Addl. Public Prosecutor as prepared by the investigating officer, we are able to see that the said place was situated in a junction and that in and around the said place, there was no living apartments or no one lives there or no one was found living at the said place. In short to say, the place of occurrence is a secluded place with no one was available by way of residents or movements either by transport or otherwise. The occurrence cropped as claimed by the respondents was in a solitary and an isolated place and that took place at the odd hours of very early morning of 20-3-1997. If the time of occurrence and the place claimed by the respondents with reference to the sketch map and the panchnamas prepared by the investigating officer in the presence of the independent panch witnesses it would reveal that no witnesses or no residents of the locality or the persons from the said area could have been available to speak about.
25. The very basis the petitioners claimed the relief of direction, from this Court by way of mandamus direction is her letter dated 25-3-1997 sent to all the higher authorities and a copy of which has been annexed to this writ petitions. It is true that the original of the said letter was sent to the higher authorities on 25-3-1997 after five days from the date of occurrence cropped up. While we look into the contents of the said petitions, we find nothing tangible to substantiate the case of the petitioners that their husbands were taken away from the house by the policemen in plain clothes on the morning of 19-3-1997 itself and further the very contents of the said letter which was claimed by the petitioners as the basis for reinvestigation of the case, do not contain or tally with the claim made by the petitioners in the writ petitions. It is significant to note that in the writ petitions, the petitioners have claimed that killing of their husbands along with another was known to themselves only through the news media on 20-3-1997 in an encounter that took place between the police and their husbands. However, in the said letter dated 25-3-1997, the case of the petitioners is that when they had been to Byculla where the place of operation of the notorious gangster Arun Gawali is going on, they came to know that their husbands were killed in an encounter with the police. Another significant aspect of the fact that has been found contradictory to the petitioners' claim is that on 19-3-1997 itself, after the policemen in plain clothes, have allegedly whisked away their husbands on the pretext of some enquiries and that they found having not returned after a long time, both the petitioners claimed that they had been to police stations Vashi Turbhe and Rabale with the object of lodging a complaint and that, however, the policemen of the said three police stations refused to take any complaint from them, nor they informed the whereabouts of the deceased. The above averments were not found in their letter dated 25-3-1997 for the obvious reasons known to themselves. Yet another vital aspect of this case which has every relevance to be noted in this case is that even assuming that the petitioners had been at the police station to lodge a complaint, it is very 'significant to note that they have not sent any telegram or Fax message to the higher authorities with regard to the alleged unlawful or illegal activities of the policemen in the plain clothes. Surprisingly, they were keeping quite and only on 25-3-1997, after a lapse of five days from the date of occurrence, they seemed to have sent the letter to all the higher authorities and that too without any material whatsoever. One of the main contentions made by the petitioners is that though they had sent the letters above referred, neither of the addressees had given any information about their husbands even after a long time. However, on perusing the record, we find that on 1-9-1997 the petitioners were informed about the details of the encounter and the death of their husbands during the said encounter. Thus, it is noticed that the petitioners were duly informed about the encounter which had taken place between the police and the husbands of the two writ petitioners and another on the early morning of 20-3-1997 and that in which there was a cross firing which resulted in sustaining of injuries to the abovesaid three persons and they had succumbed to said injuries subsequently. Since the present writ petitions were filed on 18-2-1997, in the context of the above information, it is made very clear that on the date of filing of these writ petitions, both the petitioners herein were fully conscious and totally aware of the details of the encounter that took place between the police and three dreaded gangsters and in which there was a clear shoot out and the said three persons sustained fire arm injuries. But curiously enough, after having known fully however about the said fact, the petitioners have not come forward with clean hands to this Court while making allegations against the police officials.
26. On a careful perusal of the contents made in the writ petitions filed by these petitioners, we find that no adequate material or averment had been taken on behalf of the petitioners or by the petitioners and in all the petitioners, being the wives of the dreaded gangsters feign total ignorance and every prudential character for their deceased husbands. It was the specific and categoric claim of the petitioners in the writ petitions that the husbands of both the petitioners viz. Lahoo Angare and Vikas Waghmare were poor vegetable vendors doing business in the locality where they reside with their families and they never had any weapons of any kind, nor they indulged in any criminal activities as claimed and that while so by taking them by force on the pretext of one or the other, it was the case of the petitioners that the police had shot them dead and thereby committed the murder and also deprived the valuable right of living for the said persons and rendered these petitioners as widows to the total violation of Article 21 of the Constitution of India. We are unable to persuade us to accept the said contention for the reasoning that not only the said contention has not been substantiated or proved to any extent, but also had manifestly appeared a total falsehood. It is worthwhile to note, at this stage, that both the petitioners are living in a place where crowded locality in and around the houses. The time of taking their husbands by the policemen in plain clothes was about 9 a.m. on 19-3-1997. If the policemen in two police vans, one Maruti Gypsy 1000 and another Mahindra Commander Jeep, came to the house of Vikas Waghmare and took all the three by force, then naturally the said incident could have been noticed and seen by a number of persons and/or the residents of the locality living in and around the said houses. Strangely in the instant case, not a single person had come forward to speak about the said fact or by filing an affidavit in support of the petitioners with regard to the said alleged incident. If the husbands of the petitioners along with one Yeshudas Gangawane were the innocent people and the residents of the locality claimed doing business of vegetables in that locality and never indulged in any criminal activities, we are constrained to say that there is no rhyme or reason for the policemen either in plain clothes or in uniforms to come and choose these three persons alone and to take them into a distant place and that too kill them and thereby commit murder. Thus, it is hardly believable the entire story of the petitioners that the police had eleminated the petitioners' husbands and another person. As there was no one to support the case of the petitioners and the petitioners' contention by itself, by and large, was not adequate enough or cogent but conflicting with each other and that the contents of their letter dated 25-3-1997 are directly in conflict with the contents of the writ petitions, we are not impressed by the very averments made in the writ petitions or the claim made on behalf of the petitioners.
27. On the other hand, it is the consistent case of the police that on receipt of credible intelligence on the morning of 19-3-1997 by the Assistant Sub Inspector of Police, Mr. Choudhari, after having made entry in the police case diary at the police station, sent this information to his immediate superior Mr. Pramod Rajaram Rane. Senior Police Inspector, who, after careful analysis, informed to his higher officer viz. Shri RaghunathT. Kulkarni, Assistant Commissioner of Police of the concerned area and with the consultation of the other higher officials, it is seen that the police had laid a trap at the Mulund Goregaon Link Road and Cement Godown Road Junction, Mulund (E), Murnbai. where the three deceased being the hitmen and close associates of dreaded gangster Arun Gawali, are supposed to arrive on the midnight of the said day to receive the ransom of Rs. fifteen lacs from the businessman of that locality and that in this regard they had chosen, it appears, the selected police personnel to take part in the said trap and that accordingly the police personnel had reached the spot above referred on the said night after 12 midnight and have a close monitoring all through. It was their definite and certain case that they were divided in three groups, headed by the higher police officials equipping with arms and necessary safety materials like bulletproof jacket. It is also noticed that the police had claimed that they had returned the police vehicles and made to remain one private vehicle alone and in the same one group of police personnel, was waiting for arrival of the said gangsters. The further steps shown by the learned Addl. Public Prosecutor would speak the truth and the whole graphical picture detailing the places where the police party in three groups took their positions and the place where the three deceased persons arrived at the place between 00.30 hours and 00.40 hours in white colour Maruti Gypsy 1000 Car and all the three alighted from the said vehicle after the vehicle was at a little distance at the opposite side of the Link Road clinches the true encounter. It is also the definite and consistent case of the police that since the Assistant Sub Inspector of Police Mr. Choudhari had acquaintance with the identity of the said three persons, as he had arrested them already in connection with the previous cases and they came out on bail, as decided, he approached Lahoo Angare who was very nearby and asked him to surrender by revealing that he is a policeman and all the three were surrounded by the District Crime Branch, C.I.D. Police. Immediately after the said reminder by the police, it was the definite case of the police that Mr. Lahoo Angare, having a foreign made revolver containing five chambers, directly fired against Mr. Choudhari and that one bullet hit upon his chest and that Mr. Choudhari had a very narrow escape as he had put on bullet proof jacket under his shirt and that as a self defence and a retaliation as provided by law, the said police officer retaliated by opening fire from his 9MM service revolver by firing five rounds which results Lahoo Angare sustained injuries on his vulnerable part of his body.
28. It was also the definite case of the police that in the mean time, the two other persons by name Vikas Waghmare, Yeshudas Gangawane were on the same place but on different positions. The police personnel by name Mr. Deshmukh and Mr. Mule asked them to surrender but they also never surrendered but however opened the fire against the police officers indiscriminately with the country-made revolver and a double barrel country made hand gun. One of the bullets fired by Mr. Waghmare, hit upon the chest of Mr. Mule and that as he had the bullet proof jacket, he was saved. As a result of the direct hit made by the dreaded gangsters by opening fire with the fire arms in their possession, the police party opened the fire by way of retaliation and as a self defence, according to the said two police officials, Mr. Deshmukh had fired two rounds from his fire arm and Mr. Mule had fired three rounds by his fire arm. Thus, the shooting out and the cross-firing between the three gangsters and the police party were over within a short time at the above place on the midnight and the early morning of 19th and 20th March 1997. It was also the definite and consistent case of the police that after the dreaded gangsters were made to fall down, they were disarmed and taken to Rajwadi Hospital for treatment of the injuries sustained by the three persons. However, it was claimed that the doctor on duty, on examining them, found that they had passed away already due to firing and that the said bodies were sent to J.J. Hospital and kept it at the mortuary. The further case of the police that Assistant Sub-Inspector of Police Mr. Choudhari had given a written complaint with regard to the said incident to Mulund Police Station for the offences under Section 307, 353, 34 of the Indian Penal Code read with Section 3 and 25 of the Arms Act which was registered in Mulund Police Station under Crime No. 107 of 1997 and thus the law was set in motion.
29. A perusal of the records and the case diary of the Mulund Police Station of the above case produced by the learned Addl. Public Prosecutor, would reveal that Mulund Police had commenced the investigation. the spot panchnama showing the topography of the occurrence has been drawn in the presence of the panchas and the blood stained earth, the weapons used by the three dreaded gangsters were all recovered under the independent panchnama attested by the panchas. Several witnesses seem to have been examined by the investigating officer. The Assistant Sub Inspector of Police Mr. Rangnath T. Kulkarni at whose command the police party consisting of Mr. Pramod R. Rane and Mr. Choudhari were also examined. The said three officers have witnessed the occurrence proper and it is seen that they have given a graphic picture of the whole incident and how a trap was laid on getting the intelligence from the valuable sources and how the occurrence of firing and shoot out at the time and place and the day had happened. They would further speak about the recovery of the important and vital materials and objects from the scene and also the examination of necessary witnesses. The recovered case properties including the fire arms were seemed to have been subjected to chemical analysis including the blood stained earth, recovered under the cover of separate panchnama from the scene of occurrence. The records contained the chemical analyser's report as well as the Ballastic Experts report regarding the use of fire arms and the empty bullets used therein. The recovered material by the police speaks volume of the fact to substantiate the very ease of the encounter and the actual encounter which happened between the police on the one hand and the said three dreaded gangsters on the other hand, as claimed by the police. It is also claimed that the investigating agency had also examined the doctor and other witnesses and that there is a full proof investigation in this ease and the report has also been sent to the higher authorities as per the relevant Rules of Bombay Police Manual and that was sent to the Government: for approval. Thus, according to the police, it is seen that there was no laces/mistake on the part of the police people, nor was any misfeasance against any one and in order to secure and arrest the three dreaded gangsters belonging to Arun Gawali group, a trap was laid out by the concerned police officials cumulatively and that it was very unfortunate that three persons sustained injuries on their vulnerable part of the bodies while the retaliation was given by the police team after the dreaded terrorists had opened the fire with their fire arms against the police. Therefore, there was no merit in these writ petitions, nor the claim made by the petitioners that the said three persons were taken forcibly or otherwise on the previous day and that they were eliminated by the police.
30. As we have already observed, after having gone through the entire case diary in C.R. No. 110 of 1997 of the Mulund Police Station, we are satisfied totally with the investigation done by the Mulund Police Station in the instant case and that after having considered the topo sketch map, panchnama narration and particular specific overt acts claimed by the police, there was a real encounter which had taken place between 00.30 hours to 00.40 hours on 20-3-1997 at Mulund Goregaon Link Road and Cement Godown Road Junction, Mulund (East) and in which the police attempted to secure three dreaded gangsters by name Lahoo Angare, Vikas Waghmare and Yeshudas Gangawana. Since they opened fire against the police which hit upon the two police personnel viz. Mr. Mule and Mr. Choudhari, the police officials had to retaliate and that in the said sojourn the said three persons sustained severe fire arm injuries upon their vulnerable parts as revealed in the post mortem certificate and they had succumbed to their injuries immediately. It is, thus, having considered the entire gamut and the police case diary and all the relevant papers and the attendant circumstances, we are fully constrained to hold that there was a true encounter happened and in which the said three persons died while the police had retaliated by opening the fire against them.
31. In a case held between People's Union for Civil Liberties v. Union of India, reported in : AIR1997SC1203 , the Apex Court had the occasion to observe in para 5 as under :-
It may also be that under these conditions, certain additional and unusual powers have to be given to the police to deal with terrorism. It may be necessary to fight terrorism with a strong hand which may involve vesting of good amount of discretion in the police officers or other paramilitary forces engaged in fighting them. If the versions of the police with respect to the incident in question were true there could have been no question of any interference by Court. Nobody can say that the police should wait till they are shot at. It is for the force on the spot to decide when to act, how to act and where to act. It is not for the Court to say how the terrorists should be fought. We cannot be blind to the fact that even after fifty years of our independence, our territorial integrity is not fully secure. There are several types of separatist and terrorist activities in several parts of the country. They have to be subdued. Whether they should be fought politically or be dealth with by force is a matter of policy for the government to determine. The Courts may not be the appropriate forum to determine those questions. All this is beyond dispute.
32. Keeping in view of the above observation made by the Apex Court, we are constrained to say that the very often within the precinct of the Metropolis of Mumbai, the encounters between the underworld dons and the police are being taken place and in which either of the parties, is being killed. However, it can be taken a note that several gangs are functioning in different areas and parts of the Mumbai Metropolis and continuing their underworld activities. Howsoever it was and whatsoever high or serious it may be, it is the responsibility of the police concerned to take such of the adequate and appropriate steps to book them under the law. It does not mean to police organisation have to resort to a third degree method of action and the law to be taken in their own hands to deal with them unlawfully. While saying so, we are also conscious of the fact that a few charges may be levelled against some members of the police organisation in a given particular case, but it cannot be proper to generalise the same against all keeping in view of the fact that no profession demands a sacrifice of the life to uphold the Rule of law and that if the police organisation has done such a meritorious sacrifice, it would be properly honoured. Of course, we have to say that the duty of the police organisation in the country has become much more onerous than the other organisations or the departments, highly accountable to the society for the reason that whole of the society, by and large, in the country would depend upon the risky job done by the police department. Keeping in view of the above and applying the same to the facts of the instant case, we are fully satisfied that the activities of the police in dealing with the three dreaded gangsters are within the legal ambit and that they have not done anything beyond, for, Section 100 of the Indian Penal Code and Section 46 of the Code of Criminal Procedure and Section 189 of the Bombay Police Manual, Vol VIII provides proper guidance to the police party.
33. While accepting the case of the police, we find that there is no reason to discard what has stated by the three police officers on oath and the police officers resisted the case of the petitioners, particularly when the deceased were involved in number of serious crimes. There is no basis for ordering the enquiry by any other agency and if so, it is bound to demoralise the police force and dissuade them from doing their lawful duty. Therefore, in our view, it would be against the public interest to order the judicial enquiry or other enquiries as asked for unless there is good reason to hold prima facie that the case of encounter made out, was flase.
34. All the contentions made by the learned counsel Mr. Subnis appearing for and on behalf of the petitioners were considered together for the reason that it pertains to whole incident happened in the instant case. Our observations given above would provide a clear answer to all of his contentions. Regarding the first two contentions made by Mr. Subnis, learned counsel for the petitioners, the contradictory version and the omissions and the earlier laches and inaction by the petitioners for a period of about 11 months in filing these writ petitions and the vague and innocuous averments made in the writ petitions and the prayers as we have dealt with already, would provide a direct answer for the above contentions. Hence the same are rejected.
35. Regarding the other contentions made by Mr. Subnis, the learned counsel for the petitioners, particularly the general pattern of the injuries found upon the three persons killed during encounter and no injuries including abrasions were found on the police party, would show a doubt about the concert. We are quite sure to say that it is possible for the reasoning that with a view to meet the three dreaded gangsters who are the notorious gangsters indulging in extortion during the trap led by the police party. There is evidence to show that the police party had selected three teams which must be conversant with the retaliation work with all accurate aim, adequately too and that above all, the police personnel decided to lay the trap and secured the accused as fully trained personnel used the fire arms and it was thus while they retaliate against the untrained persons, the injuries found on them could have been caused by the bullets fired by the trained persons, may reach the vulnerable parts of the body. If this being so, there is nothing strange for severe injuries found on the important parts of the human anatomy and the three dreaded persons and it is not possible for the policemen to sustain any injuries on their part. The sending of the articles, according to the learned counsel for the petitioners, for chemical analyser was very late in the instant case and that therefore the case of the respondents could not be believed. We find hardly any substance in the said contention. This is not a case of one side eliminated the other by indirect manner. This is a case of encounter and immediately after the encounter the case was registered and the investigation was started and all the materials were collected to show that it was a true encounter that had taken place at the time and day as claimed.
36. To substantiate the contentions made by the learned counsel for the petitioners, he has relied on unreported judgment rendered by the Bench of this Court made in Criminal Writ Petition No. 1146/97 and Cr. Writ Petition No. 1064/97 with Criminal Writ Petition No. 1032 of 1997 and also the case law held in, citation above referred, as well as the case held in State of M.P. v. Shyamsunder Trivedi : (1995)4SCC262 and other case laws. On going through the same, we hardly find any relevancy to import the ratio held in the said case law to the facts of the instant one. To particularize if we say so, it is for the reason that in all the factual aspects of the case referred to in the said case law, barring the writ petitioners, the supporting evidence by means of affidavits filed by several persons were there and in that context, the Court had happened to consider the same on the facts of its own. It is the settled law that each case must be decided on its own facts and that no can be followed and every Rule has its own exception. It is also settled that the Courts of law are not to be carried away by mere suspicions, conjectures and imaginary things but however, the Courts are bound to follow the circumstances and the legal evidence alone. The suspicion however it strong may be, may not be a good ground for the Court to implement the law in any given case. Accordingly, if we consider the contentions made by the learned counsel on behalf of the petitioners, simply because some doubt arises or suspicion arises, it cannot be a countenance for any moment in the light of our elaborate observations and discussions given above. Therefore, we are totally unable to countenance any of the contentions made by Mr. Subnis on behalf of the petitioners. On the other hand, we accept the contentions of Mr. Rajiv Patil, the learned Additional Public Prosecutor for the State. Hence, we find under the above factual aspects and circumstances and the material placed before us, there are no merits warranting our indulgence.
37. In the result, both the writ petitions fail. Accordingly they are dismissed.
38. Rule discharged