Absconder ADGP Pandey: Who Says Equality Before Law?

Additional Director General of Gujarat  Police, Shri P P Pandey, got a “special reprieve” from the apex court. On the assurance of his counsel, senior advocate Jaspal Sigh, that he would present himself before the concerned court (soon) and till then he shouldn’t be arrested; the bench of Justices B S Chauhan and S A Bobde passed an order that gave Pandey time till 29th July to appear before the CBI court, which is hearing the Ishrat Jahan encounter case. “Pandey will appear before the concerned court on Monday and the law will take its course, the protection from arrest to Additional DGP Pandey, a 1982-batch IPS officer, will come to an end if he fails to appear before the special CBI court on Monday”. Why is this “special reprieve” for P P Pandey?
1. Pandey was the joint commissioner of police (crime branch), Ahemdabad in 2004, when the Ishrat Jahan encounter took place. Central Bureau of Investigation (CBI) was entrusted with the investigation following the petition moved by Ishrat Jahan’s family, who alleged that the encounter was “staged” or “faked”.
2.  CBI has claimed it has evidence to prove that encounter was faked and many senior police officers of Gujarat police including Pandey actively connived in it.  CBI investigations intensified in January this year.
3.   Pandey went on leave in January itself, reported for duty on 18thApril for a day, and has neither reported for duty after that or has sent his leave report. “He is presently considered to be on an ‘unauthorized leave’. Since he has been declared an absconder by the CBI, we have proposed his suspension on technical grounds according to the present service rules. Now, it’s up to the government to decide”.
4.     Pandey moved Gujarat High Court to squash the First Information Report (FIR) submitted by CBI in the CBI-Court. HC on 1st July dismissed his plea and endorsed the move of CBI-Court to declare him an absconder.
5.     He moved Supreme Court to stop the probe by CBI, but by now on 4thJuly CBI had submitted its first charge sheet, which named him an accused. SC on 12th July dismissed his appeal and asked him to appear before the designated CBI-Court.
6.     Pandey is a high profile person. He is having lawyers to represent him in High Court and Supreme Court. He is obviously signing वकालतनामा (authority letters) that authorise a particular lawyer to represent him in a court.  Yet, CBI has not been able to catch the absconding Pandey.
7.     It is a well-known legal dictum that “Ignorance of Law is no excuse”. That means not knowing law cannot be offered as defence for contravening it. Pandey is a high ranking police officer, who would be not only required to know basic law well, but would be duty bound to uphold and enforce law.  Yet, he is wilfully breaking law with full knowledge and despite having exhausted all legal remedies in his battles against CBI is still absconding. Thus he should have been held accountable to higher standard of legal compliance than ordinary person.  He is absconding from “long arms of the law”. He is absent from duty without leave.
How could SC be lenient with such a man? No legal, ethical or administrative defence can be easily offered for this “iniquitous decision”. Possibly a “very practical consideration” in fond hope played a part that may be this is the only way to get Pandey face the legal process -the first step being his appearance before the CBI-Court on 29th July, Monday.
Pandey had made repeated attempts to get anticipatory bail under Section 438 of the Criminal Procedure Code.
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).
Pandey was entitled to such “anticipatory bail” like any other “ordinary person”, but possibly considering the serious nature of crime –extra-Judicial killings- no court deemed it fit case to grant it. Moreover, he had repeatedly avoided appearing before CBI team for enquiry and interrogation despite receiving summons.
Only last year, a Supreme Court bench of Justices P Sathasivam and Ranjan Gogoi had held that there should be No anticipatory bail to absconders. Incidentally, P Sathasivam is the current Chief Justice of India (CJI). ““Normally, when the accused is ‘absconding’ and declared as ‘proclaimed offender’, there is no question of granting anticipatory bail,” “We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and is declared as a proclaimed offender in terms of Section 82 of the Criminal Procedure Code, is not entitled to the relief of anticipatory bail.” “Normally, the court should not exercise its discretion to grant anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of the daughter-in-law at the house of her in-laws was still under investigation and the appropriate course to adopt was to allow the concerned magistrate to deal with the same on the basis of the material placed before the court,””.
82. Proclamation for person absconding.
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub- section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
When SC bench said “No anticipatory bail to absconders” on 31st August 2012, the general understanding among the legal fraternity was that the judgment had “settled a question of law which had been bothering the judiciary for a long time and ruled that no court should grant anticipatory bail to a person who had been declared an absconder either during the investigation or during the trial”. Another bench of the Supreme Court has now in effect nullified earlier judgment even for only a few days. The only difference between the two cases is that in earlier case it were “ordinary in laws” facing the possible charge of abetment to suicide or murder who were the absconders; whereas in the present case a high profile person, an additional director general of Gujarat Police, is facing the charge of killing four accused in custody in a faked encounter.
That shows the law is not equal for everyone. Did someone say breach of Article 14 of Indian Constitution?
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
But wait a minute, where is the discrimination on the grounds of religion, race, caste, sex or place of birth? Here, the “equality” is violated only on the basis of person’s station in life; and that the constitution doesn’t disallow. That is why Ministers, legislators, judges, bureaucrats, and sundry factotums of the state get preferential treatment over ordinary citizens purely because of their station in life. There is nothing unconstitutional about it.
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