- While several voices, including senior officials and public figures, have hailed the killing by police of all four accused in the Hyderabad rape-murder case early on Friday, questions have also been raised over the legality and propriety of the police action.
- Extra-judicial or “encounter” killings have been a contested and divisive police procedure for decades. This is what the National Human Rights Commission (NHRC) and the Supreme Court have said on the proper procedures to be followed during such action by police.
National Human Rights Commission’s guidelines
- In March 1997, Justice M N Venkatachaliah, then chairperson of the NHRC, wrote to all Chief Ministers to say that “the Commission has been receiving complaints from the members of the general public and from the non-governmental organisations that instances of fake encounters by the police are on the increase and that police kill persons instead of subjecting them to due process of law if offences are alleged against them”.
- Justice Venkatachaliah, who was Chief Justice of India in 1993-94, underlined that “under our laws the police have not been conferred any right to take away the life of another person”, and “if, by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law”.
- The only two circumstances in which such killing would not constitute an offence were (i) “if death is caused in the exercise of the right of private defence”, and (ii) under Section 46 of the CrPC, which “authorises the police to use force, extending upto 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, the NHRC asked all states and Union Territories to ensure that police follow a set of guidelines in cases where death is caused in police encounters. They were:
- * “When the… 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
- * “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 the death to ascertain what, if any, offence was committed and by whom. * “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 State CID.
- * “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.”
- Subsequently, in May 2010, then NHRC acting chairperson Justice G P Mathur repeated the crux of the 1997 letter, and underlined that “the police does not have a right to take away the life of a person”.
The 2010 NHRC note recalled that its “guidelines were conveyed to all the States/UTs vide letter dated 29.3.1997, which were further revised vide letter dated 2.12.2003”.
Even so, the note said, “the Commission finds that most of the States are not following the recommendations issued by it in the true spirit”.
Thereafter, the NHRC expanded the guidelines, adding several new procedures, including:
- * “Whenever a specific complaint is made against the police alleging commission of a criminal act… which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC…”
- * “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 cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in (a given) format…”
- * “A second report must be sent in all cases… to the Commission within three months providing… information (including) post mortem report, inquest report, findings of the magisterial enquiry/enquiry by senior officers…”
Directions by the Supreme Court
- In ‘People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors’ (September 23, 2014) a Bench of then Chief Justice of India R M Lodha and Justice Rohinton F Nariman issued a detailed 16-point procedure “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”.
Some of these directives were:
- “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 under Section 157 of the Code 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 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.”
- “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 court directed that these “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”.