Our Supreme Court and the tale of two encounter killings

Our Supreme Court and the tale of two encounter killings

The Ishrat Jahan encounter case has hogged media limelight, because of the involvement of some senior police officers and the perceived targetting of the hapless victims.

What course this case will take would be known in the days to come. The CBI is already on the job.

But here is the story of Sunil, an young man, who was shot dead in a fake encounter in Haryana’s Rewari district in 2008. The matter was brought to the notice of the Supreme Court by the victim’s father. The apex court accepted that the encounter did not look genuine. But it decided not to order a CBI probe as pleaded by the victim’s father. Even no FIR was directed to be registered against guilty policemen. The court concluded that directing investigation at this “distant point of time” would be an “exercise in futility”. Notably, the deceased was killed on 2008. And Ishrat Jahan was slain in 2004.

The conclusion in Haryana’s case was drawn on the argument of amicus curiae, senior advocate Raju Ramachandran. He said ordering a fresh investigation would be of no use. No ocular evidence would be available. Records of two police stations connected to the case would also be not easy to find. Further, he said it would be appropriate to direct the state to pay a heavy compensation to the victim’s family rather than pursue the case.
This may sound prudent. It comes as a great relief to the accused policemen. Justice, however, appears to be casualty to the victim’s family.

Interestingly, other factors were also noticed by Ramachandran. No firearm was recovered from the deceased. None of the police officers had received any injury. Most importantly, he said, there was blackened marks around the wounds indicating that the victim was shot from a close range 3 to 8 feet. He described the inquiry conducted by the tahsildar as not satisfactory since the Haryana government officer appeared to have been carried away by the fact that Sunil was a dreaded criminal against whom six FIRs were registered. Yet, he did not favour a fresh inquiry.

Cognisable offence

Sunil, son of Rohtash Kumar was killed in a ‘fake’ encounter on the intervening night of October 12 and 13, 2008 at Rewari Road, Narnaul. In his note, amicus curiae pointed out the state police did not follow the guidelines issued by the National Human Rights Commission in 2003, making it mandatory for registration of an FIR in case of a complaint of cognisable offence. This is violative of the mandate contained in Article 21 of the Constitution.

The court concurred with the findings by amicus curiae that Sunil appeared to have died in a fake encounter. It trashed official inquiry report for ignoring all relevant factors. The inquiring authority must first focus its attention on the circumstances that led to the death of a person in an encounter and not the antecedents of the victim. The court also said that if the police party wanted to merely prevent Sunil from running away, they could have fired on the non-vital parts of his body.

Umesh, the companion of Sunil, could be caught alive and he was tried for making an attempt on the life of policemen. He was acquitted by the trial court, making a dent in the prosecution case that Sunil fired at the police when the police asked him and Umesh to stop. The court also ripped through the police claim that there were six FIRs against Sunil. None of the FIRs named Sunil. However, the court said, “But merely because a person is a dreaded criminal or a proclaimed offender, he cannot be killed in cold blood.”

Haryana police also came under attack for ignoring two NHRC guidelines which stated that the investigation into the encounter death must be done by an independent investigation agency and that whenever a complaint is made against the police making out a case of culpable homicide, an FIR must be registered. “The police have merely conducted inquiries which appear to be an eyewash. It is distressing to note that till date, no FIR has been registered on the complaint made by the victim’s father,” the court said.

Despite all this, the court said ordering a fresh investigation would be an exercise in futility. “We are informed that witnesses would not be available. It would be difficult to trace the record of the case from the two police stations. Handing over investigation to an independent agency and starting a fresh investigation would be of no use at this stage,” the court said.

The victim’s father referred to the apex court’s ruling in two important cases -- Rubabbuddin Shaikh and Narmada Bai, relating to the killing of Sohrabuddin Shaikh and his wife Kauser Bi and witness Tulsiram Prajapati respectively. But his reliance on those two cases from Gujarat was called as “misplaced” by the court on the ground that those cases arose out of different factual situations and no parallel could be drawn from them.

“We share the pain and anguish of the appellant, who has lost his son in what appears to be a fake encounter…While we respect the feelings of the petitioner (victim’s father), we are unable to direct fresh investigation,” the court said, directing Harayana government to pay Rs 20 lakh to him.

One may ask the question: How did the court quantify the cost of a man’s life after denying proper investigation?  Or, are some encounters more special than the others?