Listen to this article“Encounter” or “retaliatory killings”
or “extra-judicial executions” by the Police are on the increase
now-a-days. The present article will not examine the real-life incidents of
encounter but only restrict itself to the bring to light the law relating to
encounter by police officer.
Legal frameworks
that are currently present in India
there is no
provision in the Indian law that directly authorizes the encounters of
criminals, however, there are certain enabling provisions which
may be interpreted differently to vest police officers with certain powers to
deal with criminals.
1)
In almost all cases where an encounter
have taken place, it is done for self-defense of the police
officer.
2)
Under Section-96 of the Indian
Penal Code (IPC), every human being has the right to private
defense which is a natural and an inherent right.
3) Section-46
of the Code of Criminal Procedure (CrPC) lays down that police can use reasonable
force. The wording of section 46(2) & (3) is stated below:
i.
If such person forcibly resists the endeavour
to arrest him, or attempts to evade the arrest, such police officer or other
person may use all means necessary to effect the arrest.
ii.
Nothing in this section gives a right
to cause the death of a person who is not accused of an offence punishable with
death or with imprisonment for life.
NHRC Guidelines
§ In March 1997, Justice M. N. Venkatachaliah (the
then chairperson of the NHRC), in the backdrop of increased complaints from the
general public and non-governmental organisations related to instances of fake
encounters by the police underlined that the police have not been conferred
with any right to take away someone’s life, except under two circumstances:
o If the death is
caused in the exercise of the right
to private defence,
o Section-46 of the CrPC
that authorises the police to use force, extending
up to the causing of death, as may be necessary
to arrest the person accused of an offence punishable with death
or imprisonment for life.
§ In the light of
this notion, the NHRC asked all states and Union Territories to ensure that
police follows the following set of guidelines in cases of encounter killings:
o Register: When the
in-charge of a Police Station receives information about the deaths in an
encounter, he shall record that
information in the appropriate register.
o Investigation: 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.
o Compensation: It can be
granted to the dependents of the deceased when the police officers are
prosecuted on the basis of the results of the investigation.
o Independent
Agency: Whenever
the police officers belonging to the same police station are the members of the
encounter party, it is appropriate that the cases for investigation are
referred to some other independent
investigation agency, such as State CID.
§ In 2010, NHRC
extended these guidelines by including:
o Registering FIR: When a
complaint is made against police alleging committing of a criminal act
recognized as cognizable case of culpable homicide, an FIR must be registered under
appropriate sections of the IPC.
o Magisterial
Probe: 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).
o Reporting to
Commission: All
cases of deaths in police action in the states shall be preliminary reported to the Commission by
the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death.
o A second report must be sent
in all cases to the Commission within
three months providing information like post mortem report,
findings of the magisterial enquiry/enquiry by senior officers, etc.
Supreme Court
Guidelines
In the PUCL vs
State of Maharashtra case (2014), the SC was dealing with writ petitions questioning
the genuineness of 99 encounter killings by the Mumbai Police in which 135
alleged criminals were shot dead between 1995 and 1997.
Following were the guidelines in the case:
- Whenever the police is in receipt
of any intelligence or tip-off regarding criminal
movements or activities pertaining to the commission of a
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.
- 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
CrPC, the procedure prescribed under Section 158 of the Code shall be
followed.
- 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:
- To identify the victim; colour
photographs of the victim should be taken;
- To recover and preserve evidentiary
material, including blood-stained earth, hair, fibres and threads, etc.,
related to the death;
- 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;
- 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;
- 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;
- 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;
- 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.
- The cause of death should be found
out, whether it was natural death, accidental death, suicide or homicide.
- A Magisterial inquiry
under Section 176 of the CrPC 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.
- 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
under Section 173 of the CrPC. 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 CrPC
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. Upon such complaint being made, the concerned
Sessions Judge shall look into the merits of the complaint and address the
grievances raised therein.
Conclusion
In light of the above discussion and in view of the
recent events, it is a need of hour that the Parliament should enact
legislation to tackle the menace of encounter by police