Headline : Explained: What NHRC, SC have said on encounter killings
- All four accused in the rape-and-murder of a 25-year-old woman veterinarian in Hyderabad were recently killed in an encounter by the police.
- While several voices, including senior officials and public figures, have hailed the killing, 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.
NHRC chairman in 1997 raised concern over extradjudicial killings or ‘encounters’:
- In 1997, Justice M N Venkatachaliah, then chairperson of the National Human Rights Commission (NHRC) wrote to all Chief Ministers after receiving complaints about ‘fake’ encounters by the police.
- The complaints highlighted that the instances of fake encounters by the police were 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 the 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 unless it is proved that such killing was not an offence under the law.
- When extrajudicial cases are not an offence:
- The only two circumstances in which such killing would not constitute an offence are
- If death is caused in the exercise of the right of private defence.
- Section 46 of the CrPC authorises the police to use force, even to the extent of causing death, in order to arrest the person accused of an offence punishable with death or imprisonment for life.
NHRC guidelines in cases of ‘encounters’:
- 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.
- When the in-charge of a police station receives information about the deaths in an encounter between the police party and others, that information should be registered 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 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 should be investigated by some other independent investigation agency, such as the 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.
Expansion of the guidelines by NHRC:
- In 2010 NHRC noted that most of the States are not following the recommendations issuedby 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 must be registeredunder 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 including the post mortem report, inquest report, findings of the magisterial enquiry/enquiry by senior officers.
Directives by the Supreme Court
- In ‘People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors’ case, the bench issued a detailed 16-point procedure in 2014 as the standard procedure for thorough, effective and independent investigation.
- Whenever the police receive any intelligence regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be put into writing in some form preferably into case diary or in some electronic form.
- If based on the intelligence received an encounter takes place and death occurs, an FIR must be registered and 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 be held in all cases of death which occur in the course of police firing and a report must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.
Involvement of NHRC:
- 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”.