Context: Gangster-turned-politician Atiq Ahmed’s son Asad and his aide Ghulam, both wanted in connection with the Umesh Pal murder case, were killed in an encounter on Thursday at Jhansi. On these extra-judicial killings, popularly known as “encounters”, the National Human Rights Commission (NHRC) and subsequently, the Supreme Court have laid down proper guidelines and procedures to be followed to prevent any misuse of power by the law enforcement agencies.
Extra Judicial Killing
- Extrajudicial killing is an illegal execution. It is a disregard for basic human rights which is the right to life. Though there is no legal definition of extrajudicial killing it is usually described as an unlawful killing of a person by any government authority or individual without any approval of legal proceedings or government order.
- Humans are entitled to basic civil, political, economic, social, and cultural rights. Article 20(1) of the Indian constitution provides the citizens with protection in respect of conviction for offenses and Article 21 with protection of life. Extrajudicial or unlawful killing on the other right is a clear violation of these human rights.
- Apart from this such killings also violates the fundamental rights of the citizens as enshrined under Article 14 (the right to equality) as well as Article 22 (the right to be protected against arrest and detention) .
In March 1997, former CJI Justice M N Venkatachaliah wrote to all Chief Ministers saying that the NHRC was receiving complaints from the general public and NGOs that instances of fake encounters by the police were on the rise, and that the police kills accused(s) instead of subjecting them to the due process of law.
The following directions were issued in that case:
when in charge of Police Station receive information about the death in an encounter, he shall record the information in the appropriate register.
Received information shall be regarded as sufficient to suspect and immediate steps must be undertaken to investigate the relevant facts and circumstances leading to the death so as to ascertain if any offence was committed and by whom.
It is generally granted to the dependent of the deceased when police officers are prosecuted on the basis of result of investigation.
When the police officer of certain police station are member of encounter party, it is appropriate that the case for investigation are referred to some sorts independent agency such as state CID.
In 2010 NHRC realized that most of the states are not following the guidelines, so it further suggested:
A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably within three months.
All death in police station shall be recorded to Commission by Senior Superintendent of Police within 48 hours of such death and second report must be sent to Commission within 48 hours by providing information like post mortem report, finding the magistrate enquiry by senior officers etc.
Submission of report
It also made it mandatory for submission of post mortem report, inquest report, and findings of magisterial enquiry after every such death.
On September 23, 2014, a bench of then CJI RM Lodha and Rohinton Fali Nariman issued detailed guidelines enumerating 16 points 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.” The guidelines came in the case “People’s Union for Civil Liberties v State of Maharashtra”
- 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.
- 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 without any delay.
- 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).
- A Magisterial inquiry 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.
- 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.
- The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.
- It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
- After full investigation into the incident, the report should be sent to the competent court . The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously.
- In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
- 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.
- 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.
- 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 (Code of Criminal Procedure, 1973) must be applied.
- 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.
- 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.
- 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.
- 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.
Encounter killings must be investigated independently as they affect the credibility of rule of law. There is a need to ensure that there exists a rule of law in the society that needs to be adhered to by every State authority and the masses. Ensuring proper physical custody of the accused in order to prevent any attack by them on the police personnel. Further, there is a dire need for complete overhauling of the criminal justice system and bringing out required police reforms.