BETWEEN 1995 and 1997 various incidents of crime took place in Mumbai and other parts of Maharashtra, in which a number of persons died in what the police described as encounters. By one estimate, 99 encounters took place during this period, in which 135 persons died.
A public interest petition filed by the Peoples Union for Civil Liberties (PUCL) in the Bombay High Court challenging the police version in two of these encounters pointed out that the sequence of events and the modus operandi of the police were identical. A Division Bench of the High Court, therefore, directed the holding of an inquiry by the Principal Judge of the City Civil and Sessions Court, Mumbai, into these encounters. The Principal Sessions Judge found that both the encounters were fake.
Meanwhile, the composition of the Division Bench of the High Court changed, and the new Bench reversed the findings of the Principal Sessions Judge and concluded that the two encounters were genuine. It, however, allowed the petitioners prayer for issuance of guidelines for the police to deal with encounter deaths and directed the Maharashtra government to constitute the Maharashtra Human Rights Commission.
The PUCL appealed against this verdict in the Supreme Court mainly on the grounds that the guidelines framed by the High Court were insufficient and that the Division Bench of the High Court erred in reversing the findings of the Principal Sessions Judge. The appeal is significant because the PUCLs counsel, Prashant Bhushan, brought to the notice of the court glaring loopholes in the guidelines suggested by the Bombay High Court and by the National Human Rights Commission (NHRC).
The NHRC first issued guidelines on the procedures to be followed by State governments when dealing with encounter deaths and sought the States views on March 29, 1997. This was a result of the NHRCs order on November 5, 1996, in a complaint against the Andhra Pradesh government, indicating the correct procedure to be followed.
The practice obtaining in Andhra Pradesh and elsewhere was that when an encounter death took place, the leader of the police party furnished information to the police station about the encounter and the persons that died. The stand taken by the police in all such cases brought by the Andhra Pradesh Civil Liberties Committee (APCLC) was that the deceased persons, on sighting the police, opened fire at them with a view to killing them, and were, therefore, guilty of the offence of attempt to murder under Section 307 of the Indian Penal Code.
The police justified their firing and killing as done in exercise of their right to self-defence. The information was recorded in the police station, describing the persons killed in the police firing as accused and first information reports (FIRs) were drawn up accordingly. Without anymore investigation, the cases were closed as having abated, in view of the death of the accused. No attempt whatsoever was made to ascertain if the police officers who fired the bullets that resulted in the killings were justified in law to do so.
For the first time, the then NHRC chairperson, Justice M.N. Venkatachaliah, told State governments that if an encounter death is not justified as having been caused in exercise of the legitimate right of private defence, or in proper exercise of the power of arrest under Section 46 of the Criminal Procedure Code (CrPC), the police officer causing the death would be guilty of the offence of culpable homicide. Whether the causing of death in an encounter was justified as falling under any of the two conditions could only be ascertained by proper investigation and not otherwise, he said in his letter to the Chief Ministers of all the States.
The NHRC revised its guidelines on December 2, 2003, and urged the States to intimate it of all cases of death arising out of police encounters, and follow the modified procedure recommended by it. Under this procedure, where the police officers belonging to the same police station are members of the encounter party whose action resulted in deaths, such cases must be handed over for investigation to some other independent investigating agency, such as the Crime Branch, Criminal Investigation Department (CBCID) of the State. Prashant Bhushan, however, has suggested an independent investigating agency in the place of the CBCID.
Secondly, whenever a specific complaint is made against the police alleging the commission of a criminal act by them, which makes out a cognisable case of culpable homicide, the NHRC proposed that an FIR to this effect must be registered under the appropriate sections of the IPC. More important, the NHRC emphasised that a magisterial inquiry must invariably be held in all cases of death that occur in the course of police action and that the next of kin of the deceased must invariably be associated with such inquiry.
The NHRC also recommended that prompt prosecution and disciplinary action should be initiated against all officers found guilty in the magisterial inquiry and police investigation and that no out-of-turn promotion or instant gallantry rewards should be bestowed on the officers concerned soon after the encounter deaths. Only when the gallantry of such officers was established beyond doubt such rewards should be given, it said. Prashant Bhushan, however, cautioned the court that such rewards might be an incentive for officers to conduct encounters.
There is considerable resistance to some of these proposals from the States. Manipur, Tamil Nadu, Puducherry, Punjab and Delhi opposed some of the suggestions made by Prashant Bhushan as impractical. Even as the Supreme Court awaits the response of other States to the proposed modification of the existing guidelines, observers hope the outcome of the case will make the police more accountable than they at present are.
V. Venkatesan
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