Let me say this from the bottom of my heart: I am most happy to learn that the Supreme Court in its landmark verdict titled People’s Union for Civil Liberties & Anr. Vs State of Maharashtra & Ors. in Criminal Appeal No. 1255 of 1999 delivered on September 23, 2014 had unequivocally expressed its grave concerns over deaths in police encounters and ruled that the registration of first information reports or FIRs will be mandatory in all such cases along with an independent probe and a magisterial inquiry so as to deter policemen from taking law into their own hands. It merits no reiteration that Apex Court has frowned on immediate gallantry awards, out of turn promotions and has said that awards should be given only after gallantry is established beyond doubt. Terrorists receive training in hostile foreign countries like Pakistan to kill innocents but who gives training to these cops in uniform to indulge in fake killings? Let me say this point blank: They are more dangerous than even terrorists and have to be reigned in fast! Fake killings cannot be justified under any circumstances and those who still dare to indulge in it must be awarded the most stringent punishment and should not be allowed to get away very lightly by suspending him for a very short period and as the dust settles restoring him/her back to action in service!
Needless to say, there has to be zero tolerance for all such fake killings and guilty policemen should not be allowed to escape scot free and Magistrate probe post encounter is a must. A Bench comprising outgoing Chief Justice of India RM Lodha and Justice RF Nariman held unambiguously that, “No awards or out-of-turn promotions should be given to any policeman in the aftermath of any encounter till his gallantry was established beyond doubt.” Of course, such awards and out-of-turn promotions are the root cause of luring policemen to indulge in fake encounters either deliberately or mistakenly by misreading intelligence inputs and act hastily in gunning down innocents taking them to be terrorists which under no circumstances can be allowed to go unchecked as it directly harms our national image and hurts our national interests most adversely!
Simply put, I must also point out here that a bench of Chief Justice RM Lodha and Justice RF Nariman laid down a 16 point guideline for the police to be followed before raiding anti-social elements and the procedure to be adopted after an encounter ends in deaths or injuries to persons .
Let me reveal here that the order of Apex Court came on a public interest litigation filed by non-governmental organization People’s Union for Civil Liberties , which had approached the top court as it was unhappy with the norms laid down for encounter deaths by the Bombay High Court in 1999 . In its order , the Apex Court for the first time also granted the right to families of victims to complain to a judicial magistrate if they are not satisfied that the new norms are being followed and also to get compensation in such cases. I have no doubt that such landmark rulings will certainly deter policemen to have a free run when it comes to indulging in fake encounters just for advancing their own vested cause like getting out-of-turn promotions or gallantry awards or any other vested purpose which is not legal at all!
To say the least, this clearly depicts that while Apex Court took into account the arduous task performed by the police but this did not stop it from telling them that rule of law must be followed in bringing all such criminals to justice ! Rule of law cannot be broken even while dealing with hard core criminals was the unambiguous message of the Apex Court .
As we saw, the Court also ruled that , “All information related to deaths in encounters should be documented adding that there must also be an independent probe by a senior officer of a neighbouring police station or CID in case of death of any person in any such encounter . The police officer must surrender his arms and face the probe . Disciplinary action by way of suspension must follow . Once the probe is over the report must be sent to a competent court, a chargesheet filed and trial completed as soon as possible.” While sending a clear and loud message of zero tolerance for fake killings, the Bench said that, “We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in police force . In a society governed by rule of law , it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done .”
While accepting amicus curiae Gopal Shankar Narayan’s suggestions on the procedure to be adopted before and after the encounter, “Such recording need not reveal details of the suspect or the location to which the party is headed . If such intelligence or tip-off is received by a higher authority , the same may be noted in some form without revealing details of the suspect or the location .”
Let me mention here some guidelines and safeguards which the Bench suggested to ensure that no more fake killing is done while disposing a PIL by NGO People’s Union for Civil Liberties (PUCL) asking for framing of guidelines in encounter cases. They are enshrined as enumerated in para 31 of this notable judgment which stipulates that, “In light of the above discussion and having regard to the directions issued by the Bombay High Court, guidelines issued by NHRC, suggestions of the appellant – PUCL, amicus curiae and the affidavits filed by the Union of India, State Governments and the Union Territories, we think it appropriate to issue the following requirements to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation:
(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.
Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.
(2) If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed.
(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek:
(a) To identify the victim; colour photographs of the victim should be taken;
(b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;
(c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;
(d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;
(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;
(f) Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be video-graphed and preserved;
(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved.
Wherever applicable, tests for gunshot residue and trace metal detection should be performed.
(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.
(4) A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.
(5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation.
However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.
(6) The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.
(7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
(8) After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the charge-sheet submitted by the Investigating Officer, must be concluded expeditiously.
(9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
(10) Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the Page 29 following format along with post mortem, inquest and, wherever available, the inquiry reports:
(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths:
(a) Self defence in encounter.
(b) In the course of dispersal of unlawful assembly.
(c) In the course of affecting arrest.
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial Inquiry/Inquiry by
Senior Officers:
(a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and
(b) whether use of force was justified and action taken was lawful.
(11) If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.
(12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.
(13) The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.
(14) An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer / counselling, same must be offered.
(15) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.
(16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.”
What follows next is then stated in para 32 that, “The above guidelines will also be applicable to grievous injury cases in police encounter, as far as possible.”
Finally, the Bench then concludes by holding in para 33 that, “Accordingly, we direct that the above requirements / norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India.”
No doubt, the police and the men in uniform are bound to strictly abide by what the top court has laid down so explicitly, elegantly and effectively in this leading case.
It may be recalled that the petitioner had earlier drawn the high court’s attention to 99 encounters between Mumbai police and alleged criminals that resulted in death of 135 persons between 1995 and 1997. The Court said while quoting earlier rulings that, “Article 21 of the Constitution of India guarantees ‘right to live with human dignity’…. The guarantee by Article 21 is available to every person and even the state has no authority to violate that right.” Who can dispute this gospel truth?
The Bench cited another ruling to state in para 9 that, “The observations made by this Court in Om Prakash2 (para 42, page 95 of the Report) are worth noticing:
42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial.
This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against Om Prakash and Ors. v. State of Jharkhand through the Secretary, Department of Home, Ranchi-1 and Anr.; [(2012) 12 SCC 72]
Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception.”
Quite reassuringly, the Bench then also concedes in para 25 that, “We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in police force. In a society governed by rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done.”
It goes without saying that this clearly depicts that while the Apex Court did took into account the arduous task performed by the police but this did not stop it from telling them that the rule of law must be followed in bringing all such criminals to justice! Rule of law cannot be broken even while dealing with hard core criminals was the unambiguous message of the Apex Court and it is the bounden duty of the police to abide fully and firmly by it!
What’s more, I am also most happy to see that the then CJI Justice RM Lodha himself had said boldly that, “If an encounter is found fake, then the officers concerned must be placed under suspension immediately and proceeded against departmentally.” The Bench had scoffed at National Crime Records Bureau’s statistics of 2013 which listed only two fake encounters, both from Assam. The Bench said quite rightly that, “The figure raises doubt about its correctness. In some of the countries when a police fire arms officer is involved in a shooting, there are strict guidelines and procedures in place to ensure that what has happened as thoroughly investigated.” Centre and States must ensure that the guidelines set out by Supreme Court in this landmark case are implemented in totality and no policemen is spared who wantonly indulges in fake killings! Only then can we truly feel pride in calling ourselves a democratic nation! There can be just no denying it!
Sanjeev Sirohi