NHRC and Supreme Court Guidelines on 'Encounters' or Extra-judicial Killings
Atiq Ahmed's son Asad, a former gangster turned politician, and his aide Ghulam were killed in an encounter on Thursday in Jhansi. The two were wanted in connection with the Umesh Pal murder case.
Extra-judicial killings, commonly referred to as "encounters", have been a topic of concern for many years. In response, both the National Human Rights Commission (NHRC) and the Supreme Court have established specific guidelines and procedures to prevent any misuse of power by law enforcement agencies during such encounters. These measures are in place to ensure that the law enforcement agencies act within the boundaries of the law and do not violate human rights.
Encounter Killing of Atiq Ahmed's Son and Accomplice: Connection to Umesh Pal Murder Case
In the case of Asad Ahmed and his aide Ghulam, they were accused of being involved in the kidnapping of Umesh Pal. Pal, along with his two police guards, was shot dead in Prayagraj on February 24. Umesh was a key eyewitness in the 2005 murder case of Raju Pal, in which Atiq Ahmed, Asad's father, is the prime accused. The alleged involvement of Asad in this case resulted in him being a wanted individual, which ultimately led to his encounter and subsequent death.
Attempt to Influence Court Case: Umesh Pal's Alleged Kidnapping by Atiq Ahmed and Associates
Supreme Court's Statements on 'Encounters?
The Supreme Court has issued detailed guidelines to be followed in investigating police encounters resulting in death. The guidelines were issued on September 23, 2014, by a bench comprising then CJI RM Lodha and Rohinton Fali Nariman in the case of "People's Union for Civil Liberties v State of Maharashtra".
The guidelines included mandatory registration of a first information report (FIR) and provisions for magisterial inquiry, written records of intelligence inputs, and independent investigation by bodies such as the CID. The court emphasized the need for a magisterial inquiry in all cases of death that occur during police action, with the next of kin of the deceased being associated with such inquiry.
It further stated that when a complaint is made against the police alleging a criminal act resulting in culpable homicide, an FIR must be registered under appropriate sections of the IPC. The inquiry must also determine whether the use of force was justified and the action taken was lawful, as mandated under Section 176 of the Code of Criminal Procedure, 1973.
The Supreme Court's guidelines on "encounters" issued on September 23, 2014, stated that a detailed procedure must be followed in the investigation of police encounters resulting in death. The guidelines, which were issued in the case of "People’s Union for Civil Liberties v State of Maharashtra," included the mandatory registration of a First Information Report (FIR) and provisions for a magisterial inquiry, keeping written records of intelligence inputs, and independent investigation by bodies like the CID.
The Court emphasized the importance of a magisterial inquiry in all cases of death that occur during police action and required the involvement of the deceased's next of kin in the inquiry. Additionally, the Court mandated that whenever a complaint alleging the commission of a criminal act on the part of the police makes out a cognizable case of culpable homicide, an FIR must be registered under appropriate sections of the IPC. Such an inquiry, conducted under Section 176 of the Code of Criminal Procedure, 1973, must determine whether the use of force was justified and the action taken was lawful.
The guidelines also required that a report be sent to the Judicial Magistrate with jurisdiction under Section 190 of the Code following such an inquiry. Whenever the police receives any intelligence or tip-off on criminal movements or activities relating to the commission of a grave criminal offense, the police must reduce it into writing in some form, preferably in a case diary or some electronic form. Finally, if an encounter takes place following such intelligence or tip-off and the police party uses a firearm, resulting in death, an FIR must be registered and forwarded to the court under Section 157 without delay.
In the case "People's Union for Civil Liberties v State of Maharashtra", the Supreme Court issued detailed guidelines on September 23, 2014, for investigating police encounters in cases of death. These guidelines include the mandatory registration of an FIR and a magisterial inquiry, keeping written records of intelligence inputs, and independent investigations by bodies such as the CID. The court directed that these requirements/norms 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.
The court also listed provisions for an independent investigation into the encounter to be conducted by the CID or police team of another police station under the supervision of a senior officer. The court deemed NHRC's involvement as not necessary unless there is serious doubt about independent and impartial investigation, but information about the incident must be sent to NHRC or the State Human Rights Commission. The Uttar Pradesh government was directed to hold an inquiry into the killing of gangster Vikas Dubey following these guidelines. Prior to this, the NHRC, in 1997, had given a set of guidelines in cases where death is caused in police encounters under its former chairperson Justice MN Venkatachaliah.
What were the NHRC's guidelines on police encounters resulting in death?
In March 1997, former CJI Justice M N Venkatachaliah wrote a letter to all Chief Ministers on behalf of the National Human Rights Commission (NHRC). The letter stated that the NHRC was receiving complaints from the general public and NGOs that instances of fake encounters by the police were on the rise. It also stated that the police were killing accused individuals instead of subjecting them to the due process of law.
The letter emphasized that under Indian law, the police do not have the right to take away the life of another person. It further stated that if a policeman kills a person, he commits the offense of culpable homicide, whether amounting to the offense of murder or not, unless it is proved that such killing was not an offense under the law.
In response to an increase in complaints from the general public and NGOs regarding fake encounters by the police, the NHRC wrote to all Chief Ministers in March 1997 requesting that police follow a set of guidelines in cases where death is caused in police encounters.
The guidelines required the police to record all information received about encounter deaths in an appropriate register and allowed for an independent investigation by agencies such as the State CID. According to the guidelines, information received about an encounter death should be considered sufficient to suspect the commission of a cognizable offence, and immediate steps should be taken to investigate the circumstances leading to the death and determine whether any offence was committed and by whom.
In December 2019, the Supreme Court of India ordered an independent investigation into the killing of four men accused of the gangrape and murder of a 26-year-old veterinary doctor in Hyderabad by the police. The investigation was to be headed by former Supreme Court judge VN Sirpurkar. In taking this step, the Supreme Court had stayed proceedings before the National Human Rights Commission and the Telangana High Court.
The Telangana police had claimed that the accused were shot when they tried to snatch firearms from the police in an attempt to flee. However, the Supreme Court's decision to order an independent investigation suggested that there were concerns about the police's version of events.
The case was notable because it was seen as a test of the guidelines laid down by the NHRC in cases where death is caused in police encounters. The Supreme Court's decision to order an independent investigation was seen as a sign that these guidelines were being taken seriously and that the police would be held accountable if they were found to have acted improperly.
Under the guidelines, police officers may be convicted and prosecuted after investigation, and compensation may be granted to the deceased's dependents. The guidelines also call for the registration of an FIR, magisterial inquiry, and reporting of all death cases to the NHRC by a Senior Superintendent of Police or Superintendent of Police of the District within 48 hours of such death.
In May 2022, the National Human Rights Commission took action against the 10 policemen involved in the 2020 encounter in Kanpur, booking them for murder and deeming the encounter to be a fake one. The Commission also directed the registration of FIRs against the police personnel. This action came after an investigation by the NHRC's Special Investigation Team found that the encounter was staged, and that the police had killed the accused gangsters in cold blood.
The NHRC team had examined a range of evidence, including forensic reports, CCTV footage, and the statements of eyewitnesses and police officials, before arriving at its conclusion. This move by the NHRC is seen as a significant step towards ensuring accountability and transparency in police encounters in India.
