SC has prescribed standard norms on encounter cases

The Supreme Court has always flagged encounters by law enforcement agencies with extreme concern. It prescribed standard procedure in all such cases and went to the extent of awarding death penalty to the accused policemen.

Besides being in violation of the Constitutional provisions, extra-judicial killings are also in abrogation of the Indian Penal Code. Article 21 of the Constitution provides the right to live with human dignity to every person; even the state has no authority to take that away. “The killings in police encounters affect the credibility of rule of law and administration of criminal justice,” the Supreme Court said in ‘PUCL Vs State of Maharashtra’.

In ‘D K Basu Vs State of West Bengal’ (1997), the apex court laid down mandatory requirements for the police to follow in all cases of arrests and detention as it was concerned over custodial violence and deaths in lockups. Stressing on the need to train police personnel to sensitise them to human values, the court then directed for allowing the presence of counsel of the arrested persons at some point of time during their interrogations. This was to deter the police from resorting to third-degree methods.

To kill someone because he was a criminal was deprecated by the Supreme Court. In Om Prakash Vs State of Jharkhand (2012), the court said such acts would amount to state-sponsored terrorism. It, however, pointed out that there are instances where police are attacked, and killed also, while trying to apprehend criminals. In such cases, sanction must be a pre-condition for prosecution. “Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution,” the court said. The sanction acted as necessary protection to police, it said.

As early as 1994, in dealing with the death of 10 people in a police encounter with Punjab militants, the court had said whether deaths are due to genuine or fake encounters, the matter is required to be investigated closely. Hearing an appeal filed by Delhi Police ACP S S Rathi, the top court upheld conviction under 302 of the IPC for murdering two innocents persons by firing indiscriminately without any provocation. The court refused to buy their arguments that the act was done in good faith and under due discharge of duty.

Sending a strong signal, in one case, where the policemen allegedly acted as contract killers in Mumbai, a two-judge bench presided over by Justice Markandey Katju favoured awarding death penalty. The bench said such cases must be treated as rarest of rare ones. "The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them," the court said. The bench emphasised the fact that they cannot take the plea that they were acting under orders from their superiors.

In 2013, the top court formulated broad framework to be observed in cases of encounter killings or grievous injuries or deaths in police custody. The court directed that any tip off on criminals’ movements must be converted into writing in some form or intelligence information must be stored electronically by the police officers concerned.

If encounter ensues while acting on the information and death occurs, an FIR should be registered without any delay and its copy forwarded to the judicial magistrate court. An independent probe should be conducted into the encounter by the CID or police attached to another police station and the investigation should be conducted by a police officer of a rank above the team involved in the episode.

Necessary procedures

The court also ordered as to what minimum the team was required to do. First, it should identify the victim and take colour photograph. The investigating team should preserve all the materials having evidentiary value. It should also identify witnesses and record their statements including address etc. It should also record video or pictures of the crime scene to decipher the turn of events leading to the encounter.

The finger prints of the deceased must be sent for chemical analysis. Further, postmortem must be conducted by a team of two doctors – one of them being the head of the district hospital. The post-mortem should also be video-recorded. The evidence with regard to arms used should be preserved. The cause of death should also be found out.

Among others, the apex court directed that the magisterial probe should be carried in all encounter deaths and a report sent to the judicial magistrate. The information about encounter must be forwarded to the NHRC or SHRC, though a probe by rights panel may not be necessary unless there is doubt about impartial probe. In the event of death, family of the victim must be informed without delay. A report should be sent to the NHRC on six-monthly basis detailing such incidents.

The disciplinary action must be taken and police officer must be put under suspension if the probe disclosed offences under the Indian Penal Code. Compensation must be provided to the victims of the dependents as per the statutory mechanism. The police officer must surrender his weapon used in the encounter.

No out-of-turn promotion or instant gallantry award should be given to the police officers unless the genuineness of the encounter is established beyond doubt. In case the family members of the victims feel that the standard procedure was not followed in any case, they can approach the sessions judge who will look into their complaints.