Debriefed: The law on encounter killings and how the Supreme Court's guidelines are being flouted

Encounters between uniformed personnel and those suspected of committing criminal offences keep recurring despite the Supreme Court laying down guidelines in this respect.

Friday's killing of Uttar Pradesh gangster Vikas Dubey and five of his associates earlier in encounters with the Uttar Pradesh Police has brought to the fore a host of questions about the legal validity of such encounters.

Bar & Bench delves into the recent history of encounter cases across the country, to understand how various agencies have sought to deal with them.

To begin with, what distinguishes a genuine encounter from a fake encounter?

Section 100 of the Indian Penal Code (IPC) lays down that the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right, may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault.

Section 97 IPC enables use of force in self-defence only to protect one’s body and that of others from the actions of assaulting criminals/offenders, whose actions reasonably cause the apprehension of death or grievous hurt. In such circumstances, the action taken by the police is fully protected by law.

Beside these, Section 46 of the Code of Criminal Procedure (CrPC) also enables police to use force resulting in the killing of an accused at the time of arrest, if the offence allegedly committed by the accused is punishable with death or life sentence. Use of force for self-defence should continue only as long as such apprehension of the danger to the body continues, says Section 102 IPC.

If none of these provisions can be invoked, the police officer causing the death of the accused would be guilty of the offence of culpable homicide. Whether the causing of death in the encounter is justified will, therefore, depend upon the facts established after a proper investigation.

Did the Supreme Court's intervention in the Manipur extra-judicial killings case yield results?

In cases where Army or paramilitary forces are involved, the state has invoked considerations of national security, and safeguarding the morale of the forces as an additional justification for not probing encounter deaths. The Centre resisted the Supreme Court-mandated investigation by the Central Bureau of Investigation's (CBI) Special Investigation Team into 1,528 extra-judicial encounter deaths in Manipur by the Army, Assam Rifles and the Manipur Police between 1979 and 2012 on the ground of national security.

The probe into about 100 of these cases, initiated in 2018, is still incomplete, with reports indicating that the CBI has so far registered only 41 FIRs, and filed over a dozen charge sheets, without mentioning the names of senior officials of Army or paramilitary forces. Inexplicably, the National Human Rights Commission (NHRC), rather than being proactive in this case, has only offered to assist the CBI.

Who will determine whether the circumstances envisaged under the law were prevalent at the time of the alleged incident?

The NHRC issued directions on a complaint brought by the Andhra Pradesh Civil Liberties Committee on November 5, 1996. In this case, the NHRC found that the deceased, Shankaraiah, was not involved in any pending criminal case, and ending his life through the process of alleged encounter was totally unjustified, and awarded compensation to the victim’s family.

In a letter dated March 29, 1997, then Chairperson of the NHRC, Justice MN Venkatachaliah wrote to the Chief Ministers of all the states and union territories, recommending certain steps, following the decision in Shankaraiah’s case. The following directions were issued in that case:

A. When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.

B.The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom.

C. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the state CID.

D. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.

In 2010, the NHRC added to these guidelines, by laying down that a magisterial inquiry must be held in all cases of death which occur in the course of police action, as expeditiously as possible, preferably, within three months. Prompt prosecution and disciplinary action against delinquent officers found guilty in the magisterial inquiry/police investigation, denial of out-of-turn promotion or instant gallery rewards on concerned officers soon after the occurrence were other steps recommended by the Commission.

The Commission required reporting of all cases of deaths in police action by the Senior Superintendent of Police/SP of the district within 48 hours of death in a prescribed format explaining the circumstances, which made use of force unavoidable. It also made it mandatory for submission of post mortem report, inquest report, and findings of magisterial enquiry after every such death.

What does the NHRC data suggest?

According to the NHRC’s last Annual Report, 2017-18, there were 164 deaths resulting from police encounters that year, and it had disposed 176 cases. Among the states, Assam topped with 57 of the disposed cases, while Uttar Pradesh came second with 18 cases. Among the 755 pending cases, Assam again topped the list with 202 cases, with Chhattisgarh coming second with 175 cases.

In a manual for human rights for police officers published in 2011, the NHRC claimed that there were 712 cases of police encounters in the country between 2000 and 2007, with Uttar Pradesh topping the list at 324, and Gujarat figuring almost at the bottom with 17.

What are the results of some of the recent cases inquired into by the NHRC?

The death of Lakhan Boro, aged 28, in an encounter with Army in Baksa, Mushalpur, Assam on February 11, 2012 was one such case. The Enquiry Magistrate had observed some contradictions in the statements of Army personnel and opined that firing was prompted by the fear of attack. No firing took place from the side of the deceased while he was trying to run away, the Magistrate found. The Commission, in its proceedings dated April 13, 2017, took the view that the encounter was not genuine, and directed compensation of Rs. 5 lakh to the next of kin of the deceased by the state government.

The NHRC concluded in 2009, in the Batla encounter case, in which the Delhi Police killed two alleged terrorists in an encounter in the capital, that the action taken by the police party in self-defence resulted in death of two alleged terrorists, Mohd. Atif Ameen and Mohd. Sajid. The fatal gun shot injury suffered by Inspector MC Sharma and the grievous injury suffered by Head Constable, Balwant Singh, during the incident supported the inference that the firing was first resorted to by the occupants of the flat, raided by the police. Since the alleged terrorists resorted to firing, causing serious injuries, the action taken by the police party in self-defence was justified, the NHRC concluded.

In 2016, the NHRC took up the matter of deaths of eight activists of Students Islamic Movement of India (SIMI) who were undertrials in the Bhopal jail, in an encounter with the Bhopal Police after they tried to escape from the jail. In 2018, the NHRC report confirmed the claims of torture by the SIMI activists in the Bhopal prison.

Has any action been taken on NHRC’s recommendation in individual encounter cases?

In 2015, the NHRC found that the death of Mukhjit Singh alias Mukha in an encounter with the Anti-Narcotic Cell, Amritsar was not warranted. Although the Magisterial Enquiry found the encounter genuine, the Special Investigation Team of the NHRC concluded that the police party acted hastily without making any efforts to ascertain the identity of the deceased whose hand wash showed no gunshot residue. Since there was no imminent danger to the police party, there was no justification to open fire on the deceased, the SIT found. Following the report, criminal action was initiated against the erring police officials, and the Commission recommended to the Punjab government payment of Rs. 5 lakh as compensation to the next of kin of the deceased.

What, according to the NHRC, are the reasons for fake encounters?

In NHRC’s view, false encounters are, at times, staged by police officers because there is pressure by the political masters to show quick results by means fair or foul. The public, particularly the educated middle class, also do not mind if the police take the law in their own hands and become executioners, particularly with regard to the dreaded criminals, says the NHRC’s 2011 manual for human rights for police officers.

The second reason cited by the NHRC is that the police dilemma is compounded by the slow moving criminal justice system in the country. Trials drag on interminably for years and the outcome remains uncertain, particularly in respect of the criminals enjoying money and muscle power. Hence the pressure on the police for short cut, and extra legal methods. Very often, there is connivance of the political bosses and support for the public too.

In a 2010 article in Indian Express, the present National Security Advisor, Ajit Kumar Doval, had defended fake encounters (while defending the Sohrabuddin episode) on the ground that the law of the land had repeatedly found itself helpless in dealing with individuals bent on bleeding the country. Doval, therefore, agreed with the view that the rule of law is a means to an end and not an end in itself, and invoked the jurisprudential principles of salus populi est suprema lex (the people’s welfare is the supreme law) and salus res publica est suprema lex (the safety of the nation is supreme law). He wrote,

“Even the Supreme Court of India, in the case of D.K.Basu v State of West Bengal (1997) accepted the validity of these two principles and characterised them as not only important and relevant, but lying at the heart of the doctrine that welfare of an individual must yield to that of the community.”

The NHRC’s 2011 manual for human rights supported Doval’s view, by citing it. It is debatable, however, whether it marks a shift in NHRC’s approach to encounter deaths.

What has been the effect of the Supreme Court’s intervention?

In BG Verghese v. Union of India, the Court dealt with a prayer for an inquiry into 22 cases of police encounters in Gujarat between 2003 and 2006. The matter was later entrusted to a Monitoring Committee headed by former judge of the Supreme Court, Justice HS Bedi, who submitted his final report on February 26, 2018. The matter is yet to be listed for hearing after January 9 last year, when the Court directed furnishing of the copies of the report to the petitioners and the Gujarat government to facilitate filing of replies. Meanwhile, important cases like the Ishrat Jahan case (2004) collapsed, with the CBI Court discharging the accused cops for want of state government’s sanction for prosecution.

In People’s Union for Civil Liberties v. State of Maharashtra, a two-Judge bench of then CJI RM Lodha and Justice Rohinton Fali Nariman held on September 23, 2014 that 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. The Bench issued a set of 16-point guidelines to be followed for thorough, effective and independent investigation into every encounter death.

These guidelines add to the NHRC’s safeguards suggested earlier. Apart from making registration of FIR mandatory, the Bench made it clear that the involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation, although information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.

Point No. 11 says that if on the conclusion of investigation, the evidence shows that death had occurred by use of firearm amounting to an. offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.

Now, the question is whether these 16-point guidelines will be strictly complied with in the aftermath of the Dubey encounter death.

Meanwhile, the pending cases in the Supreme Court have not made much headway. One relating to December 2019 Telangana encounter has been entrusted to an inquiry commission headed by a former Supreme Court judge. Another petition filed by PUCL bringing to light several fake encounters in Uttar Pradesh made the Supreme Court take a “serious note” and seek the response of the UP government in 2018. On February 12, 2019, the Court adjourned the case to enable the petitioner to compile the cases “in proper sequence” to help understand the “police and family versions” and the status of the cases better. The case has not been listed after that.