Assam under the scanner after rise in encounter deaths since 2017

Since 2017, Assam registered 50 cases of encounter deaths, 18 of which were in 2021-22. The police have been accused of “fake encounters”.

Kirti Kamal Bora of the AASU speaking to mediapersons as he was being taken to hospital after being shot in the legs by the police. | Photo Credit: By Special Arrangement

On July 5, 2021, Assam Chief Minister Himanta Biswa Sarma, while interacting with police officers as part of the conference on ‘Redefining policing standards in Assam’, said the police should shoot criminals in the legs if they tried to flee from custody.

Sarma, who also holds the Home portfolio, said in his speech at the conference: “Someone asked me if the police shooting [suspects] has become a pattern. That should be the pattern. If someone who is a rapist tries to flee by snatching arms, if someone tries to flee while being taken to the scene of crime, then the police should not shoot them on the chest but the law permits the police to shoot them in the legs. The police need not be scared of taking such action, but they should be scared of taking such action against innocents.”

The Bharatiya Janata Party-led coalition government that Sarma heads is set to complete two years on May 10, and in this period, that is, May 2021 to February 2023, a total of 138 incidents of police shooting, allegedly on people trying to escape from custody, have been registered at police stations across the State. These incidents have resulted in the death of 26 accused persons, and caused injuries to 120. These people had been arrested in criminal cases such as rape, murder, drugs peddling, and robbery.

The opposition parties have accused the Assam Police of indulging in “fake encounters” and resorting to extra-judicial killings in a bid to deliver instant justice. The State government has defended the police actions.

On April 3, Sarma, replying to a question from Akhil Gogoi of the Raijor Dal in the Assembly, denied that “fake encounters” had taken place during the rule of his government. He said “police action” happened only when criminals tried to escape or snatch weapons from the police. He also stated that action had been initiated against 16 police personnel on the charge of dereliction of duty in such cases.

Probe ordered

He further stated that a magisterial probe was not mandatory according to the guidelines of the National Human Rights Commission in cases where the accused got injured while trying to flee. But a magisterial probe had been ordered into 47 cases of injuries and the death of 26 accused. He also said that a magisterial probe had been ordered into all cases in which the accused were killed while trying to escape and added that the police had followed the NHRC guidelines in these cases.

The State government also tabled on the floor of the House lists containing district-wise information of police actions, including the names and addresses of the injured and those killed in police action, the case references, and the magisterial inquiry reports.

Angshuman Bora, Senior Advocate of Gauhati High Court, said the law was silent on who should conduct the probe in the counter cases that the police registered into incidents of “police action”. He said that for the sake of an impartial investigation, a case into police action that resulted in death or injuries of the accused should be handed over to a third party.

“If the counter case is registered and investigated by the same police station, then investigations cannot be expected to be impartial, and officials of the same police station cannot be expected to come up with findings that contradict the statement issued by the Officer-in-Charge of the police station about the circumstances leading to occurrence of such police actions,” Bora said.

Assam Chief Minister Himanta Biswa Sarma (left). | Photo Credit: Pitamber Newar/ANI

The Assam government was correct in describing these incidents as cases of “police action” and not “encounter” as there was no exchange of fire, he said. He, however, questioned the justification of the police resorting to firing instead of physically overpowering the accused.

Union Minister of State for Home Affairs Nityanand Rai informed the Lok Sabha on February 8, 2022, in reply to a question raised by Feroze Varun Gandhi, that of the total 655 cases registered under the category of “death in police encounter”, 50 cases were registered in Assam during the period from January 1, 2017 to January 31, 2022.

The Gauhati High Court dismissed, on January 27, a public interest litigation (PIL) and an interlocutory application seeking an independent probe into the alleged “fake encounters” in the State on the grounds that the petitioner had failed to point out any infirmity in the procedure adopted in any of those proceedings. The petitioner, Arif Md Yeasin Jwadder, a lawyer, pleaded for an independent investigation by the Central Bureau of Investigation (CBI), a special investigating team (SIT), or any other police team from other States under the supervision of the court against the police personnel involved in the “fake encounters”.

A Division Bench of the court comprising Justices Sumanta Shyam and Sushmita Phukan Khaound observed in the order: “The question of constituting a SIT or handing over the investigation to the CBI would arise only when a proper case is made out on facts to demonstrate that the State government... has not taken proper action in the matter or that the respondents are not carrying out proper investigation to punish the guilty by following the due process of law or that there is some deliberate attempt to shield the culprits.”

The Bench further observed that the government had not denied the incidents of “police encounters” resulting in death and/or grievous injury to persons in police custody during the period mentioned in the writ petition.

In one of the incidents of police action, Sub-inspector Pradip Baniya in Nagaon district shot Kirti Kamal Bora, a leader of the All Assam Students’ Union (AASU) and former general secretary of the Nagaon College Students’ Union, on January 22, 2022, in the legs, seriously injuring him. Bora was returning home after buying medicine for his ailing mother. Later, the police lodged a first information report (FIR) alleging that Bora was selling drugs and that he had attacked the police. Bora denied the allegation and said that the police shot at him when he saw them thrashing a man and protested against it. The incident sparked a protest, following which the SI was placed under suspension, the then Nagaon district Superintendent of Police Anand Mishra was transferred to Assam Police headquarters, and the government handed over the probe to the Criminal investigation Department (CID). The CID later filed a charge sheet before the court of the Chief Judicial Magistrate, Nagaon, against the accused police officer for “his complicity in the offence”.

Highlights

• In Assam, from May 2021 to February 2023, a total of 138 incidents of police shooting, allegedly on people trying to escape from custody, have been registered at police stations across the State.
• The opposition parties have accused the Assam Police of indulging in “fake encounters” and resorting to extra-judicial killings in a bid to deliver instant justice.
• But Assam Chief Minister Himanta Biswa Sarma says, “The onus of not facing an encounter is on criminals, not police. Criminals must surrender to police.”

Differing accounts

The following findings from a magisterial inquiry into one of incidents of “police action” provide a glimpse of the differing accounts of the police and the injured persons. The incident happened on July 15, 2021, when Ashadul Ullah alias Asadul Islam, an undertrial in a drug peddling case, was being brought from Mikirbheta police station to Moirabari police station for recovery of drugs after interrogation and crime scene reconstruction.

He suffered a gunshot injury in police firing at Sagunbaii Pathar revenue village under Laharighat Revenue Circle and Moirabari Police Station. The statement of the Additional Superintendent of Police (Headquarters) says: “The victim was brought to Sagunbahi Pather at around 1:45 am for further recovery of drugs under Laharighat revenue Circle on 15th of July, 2021. Due to drug addiction problem the victim (accused) suddenly snatched the weapon to flee from the spot. O.C. Moirabari ordered a controlled firing on his leg as the victim was running away and immediately the victim was shot down on his right leg...” He fell unconscious and was taken to the Moirabari Civil Hospital. The same statement by the Officer-in-Charge (Moirabari police station) was recorded by the Circle Officer of Laharighat Revenue Circle who carried out the magisterial probe.

“The victim (accused) Md. Ashad Ullah @ Ashadul Islam stated that on 15 July 2021, he was brought from Mikirbheta police station to Moirabari police station. On the way and at around 2 am to 3 am in the morning the police stopped the vehicle on the left side of the Saghunbahi new petrol pump under Laharighat Revenue Circle. His two hands were grabbed by two police personnel and a black cloth was wrapped around his eyes. Thereafter two consecutive rounds were shot aiming in his right leg but the bullets [gun] jammed. Again the third round was shot in his right leg above his trousers leading him to unconscious state,” states the inquiry report in the section “Statement of the Victim (accused)”.

The report states that the statement of the Medical Officer of Morigaon Civil Hospital was taken on record. “In his opinion the victim’s right leg injury was caused from the bullet penetrating below knee joint (about 10 cm below) from back side and coming out from below knee joint (about 12 cm below) the front side.”

The inquiry report concluded that “the victim (accused) Md. Ashad Ullah @ Ashadul Islam might have tried to snatch a weapon to flee from the spot near Sagunbahi Pathar at around 1:45 am when the police team had taken the accused for further recovery of drugs under Laharighat Revenue Circle on 15th of July, 2021 as led by the accused himself, which led to the controlled firing incident.”

The Chief Minister, while replying to the debate on the motion of thanks for the Governor’s address in the Budget Session on March 15, reiterated that police action would continue if criminals tried to attack policemen or escape from custody. He urged criminals to raise their hands or wave a white handkerchief instead of pulling out a revolver to avoid a police encounter when caught carrying drugs.

Sarma said that encounters did not take place in a pre-planned manner and underscored the need to “sensitise criminals” about the Assam Police and that there was no scope for any appeasement.

“The onus of not facing an encounter is on criminals, not police. Criminals must surrender to police,” he tweeted while sharing a video clip of his reply in the Assam Assembly, indicating that the police shooting at accused persons trying to flee from custody or snatch weapons will continue to be the pattern in Assam under the “redefined policing standard”.