Police personnel in plain clothes firing upon car driver cannot be considered as official duty: Supreme Court

New Delhi: The conduct of police personnel surrounding a civilian vehicle in plain clothes and jointly firing upon its occupant cannot be considered under duties of public order or effecting lawful arrest, the Supreme Court has said, dismissing a plea of nine Punjab cops to quash murder charges against them in an alleged fake encounter case.

A bench of Justices Vikram Nath and Sandeep Mehta also restored the destruction of evidence charge levelled on Deputy Commissioner of Police (DCP) Parampal Singh for directing the removal of the number plate of the car after the firing incident in 2015 in which a driver was killed.

It has been held that the cloak of official duty cannot be extended to acts intended to thwart justice, the court observed noting that prior sanction was not required to prosecute the DCP and other police personnel for their alleged actions.

The bench in its April 29 order uploaded recently dismissed the appeals of nine police personnel challenging the Punjab and Haryana High Court's order of May 20, 2019, where it refused to quash the case against them.

The apex court said having gone through the material placed on record, the court is of the view that no case is made out for interference with the impugned order of the high court.

The bench rejected the submission of eight police personnel that cognisance of complaint against them cannot be taken as it was barred under Section 197 of CrPC under which prior permission was needed to prosecute public servants.

"Equally untenable is the submission that cognisance was barred for want of sanction under Section 197 CrPC. The petitioners stand accused of surrounding a civilian vehicle in plain clothes and jointly firing upon its occupant.

"Such conduct, by its very nature, bears no reasonable nexus to the duties of maintaining public order or effecting lawful arrest," it said. The bench further said, "The availability of official firearms, or even an erroneous official objective cannot transmute acts wholly outside the colour of authority into those done while acting or purporting to act in discharge of official duty." Dealing with the case involving DCP Parampal Singh, the bench said an act that is per se directed to erasing potential evidence, if ultimately proved, cannot be regarded as reasonably connected with any bona-fide police duty.

"The test consistently applied by this court is whether the impugned act bears a direct and inseparable nexus to official functions.

"We believe that where the very accusation is suppression of evidence, the nexus is absent on the face of the record. In such a situation the bar of section 197 CrPC is not attracted, and sanction is not a condition precedent to cognisance," the bench said.

It said this court in a verdict of 2000 while dealing with Section 197 of CrPC held that "the cloak of official duty cannot be extended to acts intended to thwart justice".

The top court said the criminal complaint alleges, in clear and specific terms, that the nine policemen surrounded the Hyundai i-20 car, alighted with firearms, and fired in concert, fatally injuring the occupant.

It added that the narrative was supported, at least prima facie, by two eye-witness depositions recorded under Section 200 CrPC during the preliminary inquiry.

"In addition, the Special Investigation Team constituted at the behest of senior police administrators, found the self-defence version subsequently projected in FIR…to be false and recommended prosecution of eight of the petitioners for culpable homicide.

"A CCTV clip recovered by the SIT depicts the three police vehicles converging on the i-20 exactly as alleged. Taken together, these materials furnish a coherent evidentiary thread sufficient, at the threshold, to justify summoning and the framing of charges," the top court said.

Justice Nath, who penned the verdict on behalf of the bench said the order of the magistrate summoning the policemen and the subsequent order of the Sessions Court framing charges proceed on an appreciation that there exists prima facie evidence of concerted firearm assault.

"No error of law or perversity of approach is shown," the bench said and dismissed the appeal filed by the policemen.

The top court, however, allowed the appeal of complainant Princepal Singh seeking reversal of the high court's order of May 20, 2019, by which it had quashed a criminal complaint and the summoning order against DCP Parampal Singh in the destruction of evidence case against him.

The bench said, "In our considered opinion, at the summoning stage, those two depositions, read with the detailed narrative in the complaint, furnish a legally sufficient basis to proceed. Their credibility is a matter for trial, not for preliminary scrutiny." As per the complaint, at 6.30 pm, on June 16, 2015, a police party, travelling in a Bolero jeep, an Innova and a Verna, intercepted a white Hyundai i-20 on the Verka-Batala Road in Amritsar of Punjab.

It said nine policemen alighted in plain clothes and, after a brief exhortation, opened fire from pistols and assault rifles at close range, killing the car driver, Mukhjit Singh @ Mukha.

The complainant (then riding a motorcycle nearby) and another witness claim to have seen the shooting and to have raised an alarm that drew local residents to the spot.

They claimed shortly after the firing incident, DCP Parampal Singh arrived with additional force, cordoned off the scene and directed the removal of the car’s registration plates.