Fighting gang war with gangster not permissible, petitioner claims before SC

'Law provides no justification for killing even hardened criminal'

An advocate, who sought a CBI or NIA probe into the encounter of gangster Vikas Dubey and his henchmen, countered before the Supreme Court the Uttar Pradesh government's claims in the entire episode, saying no law provided justification of the killing of even a hardened criminal in the custody of law enforcement agency.

"While fighting a lawless (an outlaw) the state cannot go to the extent of becoming lawless. Fighting a gang war by the state with a gangster is not permissible in a democratic civil society," advocate-petitioner Anoop Prakash Awasthi said in a rejoinder affidavit to the UP government's assertion.

"There is no justification in killing a person in custody by staging an almost identical film story each time," he said.

In its response to the PIL, the Uttar Pradesh government had earlier claimed before the court that the police had no option but to fire back in self-defence as gangster Dubey had tried to escape after snatching a pistol and firing indiscriminately on being brought from Ujjain to Kanpur on July 10.

It also said the state government has already set up a judicial inquiry commission headed by a former Allahabad High Court judge, Justice Sashi Kant Agarwal, to probe incidents between July 2 and 10, besides two other SITs, including one to probe Dubey's nexus with police and politicians.

In his rejoinder, lawyer, for his part, questioned the legality of setting up a judicial inquiry commission, headed by the former judge, saying Justice Agarwal who headed the panel, was not a retired judge, as he had resigned from the post on his transfer to Jharkhand High Court in 2005 and was not being paid retirement benefits.

"Constitution of judicial inquiry commission is completely illegal as it was not done in accordance with Section 3 of Commission of Inquiry Act, 1952 which mandates passing of a resolution by each house of state followed by gazette notification, or issuance of Ordinance by the Governor," he said.

Further, he said, the judicial commission was "merely a fact-finding body" and its recommendations were not binding upon the state.

The lawyer also questioned the composition of an SIT, formed by the state to probe into incidents related to killings of 8 policemen in Kanpur and the elimination of Dubey and his gang members on July 10.

He said a member of the SIT, DIG IPS Ravindra Gaur himself was accused in the fake encounter of a medicine dealer Mukul Gupta in Bareilly in 2007. The CBI which investigated the encounter did not get sanction for prosecution of Gaur. Further, Gupta's parents, who pursued the matter before the HC, were also murdered, he alleged.

With regard to the formation of another SIT headed by SP Crime Kanpur, saying it would suffer personal bias due to alleged involvement of the entire system of city police, Awasthi contended.

He also accused UP police of killing a juvenile member of the Dubey gang.

Awasthi also relied upon media reports to claim UP police did not take transit remand of accused Dubey before taking him from Ujjain to Kanpur.

The petitioner also claimed that there was no justification by the police in demolishing the house of Dubey, after killings of eight policemen, and damaging the parked vehicles, saying it amounted to destruction of evidence. The demolition covered by media did not show recovery of any weapon, he said.