POLICE KILL MANY IN FAKE ENCOUNTER, GUIDELINES FOR INVESTIGATION
The recent killings of four Maoists in Attappady forest in Kerala have become controversial amidst allegations that they were killed in an encounter staged by police.
The relatives of two of the killed persons have moved the Sessions Court Palakkad alleging that the police did not follow the guidelines laid down by Supreme Court to investigate encounter killings.
The Sessions Court on Thursday stayed the cremation of their bodies till November 4. Principal Sessions Judge, Palakkad KP Indira will peruse the post-mortem reports of the deceased on November 2 and hold enquiries to see if guidelines have been followed.
The Apex Court had, in PUCL v. State of Maharashtra, in 2014, issued 16 guidelines to be followed in the matters of investigating cases of death and grievous injuries in police encounters. The Court said that these guidelines will operate as the standard procedure for thorough, effective and independent investigation. The guidelines include mandatory magisterial inquiry into encounter deaths and providing information to the close relatives of the victims without any delay.
Immediately after the encounter, FIR should be registered and 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 top court stated that the the family of the victims of encounter killings can file a complaint to the Sessions Judge having territorial jurisdiction over the area, if they feel that the police has failed to follow the procedure laid down by the apex court.
The Court also prohibited granting out-of-turn promotion or instant gallantry rewards on the concerned officers soon after the occurrence.
A two Judge Bench comprising of then CJI RM Lodha and Justice RF Nariman held that Article 21 of the Constitution of India guarantees "right to live with human dignity". It also held that killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.
"The guarantee by Article 21 is available to every person and even the State has no authority to violate that right. In line with the guarantee provided by Article 21 and other provisions in the Constitution of India, a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights. In spite of Constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the cases of death in police encounters continue to occur," the then CJI Lodha observed in the judgment.
The bench issued the following guidelines:
- 1. 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. 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.2. 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 Code, the procedure prescribed under Section 158 of the Code shall be followed.3. 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:
- a) To identify the victim; colour photographs of the victim should be taken;
4. 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.5. 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.6. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.7. It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.8. After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously.9. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.10. 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. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports:
- b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;
- c) 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;
- d) 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;
- e) 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;
- f) 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;
- g) 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.
- h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.
- i. Date and place of occurrence.
11. 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.12. 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 must be applied.13. 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.14. 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.15. 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.16. 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.The Court ordered that the above 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.
- ii. Police Station, District.
- iii. Circumstances leading to deaths:
- a) Self defence in encounter.
- b) In the course of dispersal of unlawful assembly.
- c) In the course of affecting arrest.
- i. Brief facts of the incident.
- ii. Criminal Case No.
- iii. Investigating Agency.
- iv. Findings of the Magisterial Inquiry/Inquiry by Senior Officers:
- a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and
- b) whether use of force was justified and action taken was lawful.