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End to impunity?

Print edition : Oct 09, 2009 T+T-

THE first extrajudicial killing, or encounter, in Andhra Pradesh took place as early as 1968. Since then, close to 4,000 people have been killed in alleged encounters. A recent paper by the Andhra Pradesh Civil Liberties Committee (APCLC) says there have been 1,800 encounter deaths between 1997 and 2007.

An overwhelming majority of these occurred during anti-naxalite operations by the Andhra Pradesh Police. Human Rights organisations such as the APCLC and the Peoples Union for Civil Liberties (PUCL) have repeatedly accused the police of deliberately planning these encounters and the State government of providing them impunity. Most encounters happen at isolated places, either early in the morning or late at night, in the absence of witnesses, and police officers rarely seem to get injured in them. All this is often cited as proof of foul play.

On February 6, 2009, the Andhra Pradesh High Court delivered a landmark judgment making it mandatory for the police to register a first information report (FIR) after every encounter death against the police officers who participate in the encounter.

The APCLC filed a writ petition in 2006 after Communist Party of India (Maoist) State secretary Madhav and seven Maoists were killed in the Nallamalla forest in a police encounter.

A full Bench consisting of Justices Goda Raghuram, V.V.S. Rao, R. Subhash Reddy, Ramesh Ranganathan and G. Bhavani Prasad ruled: Where a police officer causes death of a person, acting or purporting to act in discharge of official duties, or in self-defence as the case may be, the first information relating to such circumstance shall be recorded and registered as FIR.

The current practice is to register a case against those killed in an encounter under relevant sections such as the one dealing with attempt to murder. Since the accused is dead, trial abates but a magisterial inquiry is conducted to determine the circumstances of the death.

If the High Court judgment comes into effect, an investigation by an independent agency, such as the Crime Branch-Criminal Investigation Department (CBCID), will be conducted alongside the magisterial inquiry. If an FIR is registered against the police after an encounter death, the police officers named in it will be investigated on the charge of homicide and charge-sheeted on the basis of the evidence found, and the case will be brought to trial.

Nitya Ramakrishnan, a Supreme Court advocate, said: Only a trial can address the nuances of a case. The reason for prescribing a procedure like this is that the court may arrive at a certainty. All we are saying is kindly explain the circumstances.

A similar point finds mention in the annual report of the Asian Human Rights Commission (AHRC). A chapter on custodial deaths/encounter killings in India says that the absence of successful prosecution and the relative difficulty of lodging a complaint against a law enforcement officer have led to a high degree of impunity for law enforcement agencies.

The judgment in February is the latest in a series of judgments seeking to address the same question when a police officer causes the death of a person, should an FIR be filed in keeping with the Criminal Procedure Code, 1973?

In 1997, in K.G. Kannabiran vs the Chief Secretary, Government of AP, Hyderabad and Others, the Andhra Pradesh High Court ruled: It goes with the duty of the police and it needs no reiteration that every case of homicide in whatever circumstances it occurs has to be registered as a case for investigation. Any commission of inquiry is never a proper and adequate substitute to a fair and impartial investigation of the offence and a charge brought to the court. The court also held that a police statement saying an encounter had taken place was enough for an FIR to be registered.

K.G. Kannabiran, advocate and president of the Peoples Union for Civil Liberties (PUCL), made an application in 1995 seeking an inquiry into the death of T. Madhusudanraj Yadav, a trade union leader who was shot dead by the police in an encounter. Referring to the case, the court ruled, A case should have been registered and investigated by the competent authorities.

The National Human Rights Commission (NHRC) had already declared, in 1996, that every time there was an encounter an FIR should to be registered against the police and that this should be followed by an investigation, preferably by the CBCID. In 2001, a three-judge Bench of the High Court upheld the NHRC guideline and the 1997 judgment in A. Anansurya vs Station House officer, Tadicherla.

This was reversed in 2003 in APCLC vs Government of Andhra Pradesh, when the High Court said that it was possible to register an FIR against the dead or about a suspicious death under Section 174, CrPC. The ruling left it to the investigation to determine the circumstances of the death. In 2004, in Gera Danamma vs Station House Officer, Maddipadu the same issue resurfaced. Faced with differing precedents, a single-judge Bench (Justice L. Narasimha Reddy) referred the case to a larger Bench.

In 2007, in APCLC vs Government of Andhra Pradesh, a three-judge Bench comprising Justices L. Narasimha Reddy, Bilal Nazki and Yethi Rajulu ruled that an FIR could be registered against the police only if a police officer had been identified as the accused. This judgment was made despite, or because, of the fact that it is nearly impossible to find witnesses for encounters.

By this time, the 2006 writ petition had been filed. Taking advantage of the 2007 judgment, B. Suresh Kumar, an advocate, asked for the names of the police officers who participated in the 2006 encounter in the Nallamalla forest to be disclosed so that an FIR could be filed against them.

The request was rejected on August 30 and the matter appeared before the Acting Chief Justice at the time, Bilal Nazki, who, doubting the order of the Bench, referred it to a larger Bench.

Finally, in February 2009, in APCLC vs Government of Andhra Pradesh, the court settled all these petitions. It ruled that whether an alleged perpetrator is named or not, the case shall be recorded and registered as FIR and shall be investigated. The circumstances of death which may fall within any of the Exceptions in the Indian Penal Code including the exercise of the right of private defence cannot be conclusively determined during investigation. The opinion of the investigating officer shall be considered by the magistrate together with the material and evidence collected during the course of investigation.

It said that a magisterial enquiry (inquest) is neither a substitute nor an alternative to recording an FIR and conducting an investigation into the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.

The court said that it was left open whether the investigating officer was required to disclose the names of the police officers involved in an encounter when a request for such information was made. The obligation to disclose to the Investigating Officer the identity of the police officer(s) so involved, is however absolute and there is no immunity whatsoever from this obligation. Withholding of any information or material that impedes the investigation violates several provisions of the Indian Penal Code and the Criminal Procedure Code.

Following this judgment, the AP Police Association (APPA) appealed to the Supreme Court, which stayed the order in March. The case is to be heard on October 6.