Transcript
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1255 OF 1999
People’s Union for Civil Liberties & Anr. … Appellants
Versus
State of Maharashtra & Ors. … Respondents
WITH
CRIMINAL APPEAL NO.1256 OF 1999
CRIMINAL APPEAL NO.1367 OF 1999
WRIT PETITION (C) NO.316 OF 2008
CONTEMPT PETITION (C) No.47 OF 2011
IN
WRIT PETITION (C) NO.316 OF 2008
TRANSFERRED CASE (C) NO.27 OF 2011
O R D E R
R.M. LODHA, CJI.
On 03.09.2014, the arguments were heard on the question of
the procedure to be followed in investigating police encounters. The
present order is confined to the above question.
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2. In the three writ petitions, which were filed by People’s Union
for Civil Liberties (for short, “PUCL”) before the Bombay High Court, the
issue of genuineness or otherwise of nearly 99 encounters between the
Mumbai police and the alleged criminals resulting in death of about 135
persons between 1995 and 1997 was raised. Inter alia, the following
prayers were made:
i) directing the Respondent Nos. 1 to 3 to furnish the
particulars regarding the number of persons killed in last one
year in police encounters, their names, addresses, the
circumstances in which they were killed, the inquiries, if any,
conducted with respect to the said killings and any other
relevant information and the action taken, if any, by them;
ii) directing the respondent No. 1 i.e. State of
Maharashtra to register offence under Section 302 of Indian
Penal Code and other enactments against the police officers
found prima-facie responsible for the violations of
fundamental rights and other provisions of the Indian Penal
Code and other relevant enactments;
iii) directing the 4
th
respondent viz., the Coroner of
Mumbai to submit a detailed report and the details of action
taken by him under the provisions of the Coroners Act 1871;
iv) directing an appropriate authority to enquire into and
report to this Court in all the police encounters that have
taken place not only in the city of Mumbai but also in the
entire State of Maharashtra in which persons have been
killed or injured in police encounters;
v) directing the State of Maharashtra to constitute the
Maharashtra State Human Rights Commission as provided
under Section 21 and other provisions contained in the
Human Rights Act 1993,
vi) directing the State Government to frame appropriate
guidelines governing planning and carrying out encounters
for the purpose of protection of life and liberty guaranteed
3
under Article 21 read with Article 14 of the Constitution of
India.
3. It is not necessary to notice the facts of the three writ petitions
in detail. Suffice it to say that while considering the above prayers, the
High Court directed the following guidelines to be followed necessarily and
mandatorily by the police in the State:
1. Whenever the respondents-police are on the receipt
of intelligence or a tip off about the criminal movements and
activities pertaining to the commission of grave crimes, it
shall be entered into a case diary. If the receiving authority is
the police officer of a particular police station, the relevant
entry has to be made in the General diary and if the
receiving authority is the higher police officer, the relevant
entry to the said effect has to be made by a separate diary
kept and provided therefor and then pursue further in
accordance with the procedural law.
2. Regarding any encounter operation is over and
persons are killed or injured and the same is reported to
either orally or writing to the police in furtherance of Section
154 of the Criminal Procedure Code, it shall be registered in
Crime Register of that particular police station and that
further the said First Information Report along with copies to
the higher officials and the Court in original shall be sent with
immediately without any delay whatsoever through proper
channel so as to reach to the Court without any delay at all.
A report, as enjoined under Section 157(1) of the Criminal
Procedure Code, shall also be followed necessarily by the
concerned police station.
3. After setting the law in motion by registering the First
Information Report in the Crime Register by the concerned
police officer of the particular police station, the investigating
staff of the police shall take such steps by deputing the man
or men to get the scene of crime guarded so as to avoid or
obliterate or disfigure the existing physical features of the
scene of occurrence or the operation encounter. This
guarding of the scene of occurrence shall continue till the
inspection of occurrence takes place by the investigating
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staff of the police and preparation of spot panchnama and
the recovery panchnama.
4. The police officer who takes part in the operation
encounter or the investigating officer of the concerned police
station, shall take all necessary efforts and arrangements to
preserve finger prints of the criminals or the dreaded
gangster of the weapons who handled immediately after the
said criminal was brought down to the ground and
incapacitated and that the said fingerprints, if properly taken
and preserved, must be sent to the Chemical Analyzer for
comparison of the fingerprints of the dead body to be taken.
5. The materials which are found on the scene of
occurrence or the operation encounter and such of the
materials including the blood stained earth and blood stained
materials and the sample earth and other moveable physical
features, shall also be recovered by the investigating staff
under the cover of recovery panchnama attested by the
independent witnesses.
6. To fix the exact date and actual place of occurrence in
which operation encounter has taken place, a rough sketch
regarding the topography of the existing physical features of
the said place shall be drawn by the police or the
investigating staff of the police either by themselves or by
the help of the staff of the Survey Department even during
the spot panchnama is prepared.
7. The inquest examination shall be conducted by the
investigating staff of the police on the spot itself without any
delay and statements of the inquest witnesses are to be
recorded under Section 161 of the Code of Criminal
Procedure and the inquest panchnama shall be sent along
with the above case record prepared along with the First
Information Report without any delay whatsoever to the
Court.
8. If the injured criminals during the operation encounter
are found alive, not only that they should be provided
medical aid immediately but also arrangements and attempts
shall be taken by the police to record their statements under
Section 164 of the Criminal Procedure Code either by a
Magistrate, if possible and if not, by the Medical Officer
concerned duly attested by the hospital staff mentioning the
time and factum that while recording such statements the
injured were in a state of position that they will be able to
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give statements and the connected certificates by the
doctors appended thereto.
9. After the examination of further witnesses and
completing the investigation inclusive of securing the
accused or accused persons, the concerned police is
directed to send final report to the Court of competent
jurisdiction as required under Section 173 of the Criminal
Procedure Code for further proceeding.
10. Either in sending the First Information Report or
sending with the general diary entry referred in the guideline
nos. 1 and 2, the concerned police shall avoid any iota of
delay under any circumstances whatsoever so also rough
sketch showing the topography of the scene and the
recovery of the materials and the blood stained materials
with the sample earth and the blood stained earth with the
other documents viz, the spot panchnama, recovery
panchnama - all seems very vital documents - the
respondents-police are also directed to send them to the
Court of concerned jurisdiction without any delay.
4. PUCL was not satisfied with the adequacy of the reliefs
granted by the High Court and, consequently, it filed three SLPs against
the judgment and order dated 22-25.02.1999. Few other matters have
been connected with these three petitions.
5. After initial grant of leave, the matters came up for
consideration before the two-Judge Bench on 05.11.2008. On that day,
Mr. Prashant Bhushan, learned counsel appearing for the appellants
placed before the Court the guidelines issued by the National Human
Rights Commission (for short, “NHRC”) and also his own suggestions.
Looking at the gravity of the matter, the Court on that day directed
issuance of notice to the Union of India, States and Union Territories for
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consideration of issuance of final directions / guidelines in the matter by
this Court. After the notice was issued, the Union of India, States and
Union Territories, have filed their affidavits.
6. On 28.08.2014, having regard to the importance of the matter,
we appointed Mr. Gopal Sankaranarayanan as amicus curiae to assist the
Court in the matter. Mr. Sankaranarayanan, learned counsel, after
thorough research and study, placed before us his written submissions
including the suggestions / guidelines.
7. Article 21 of the Constitution of India guarantees “right to live
with human dignity”. Any violation of human rights is viewed seriously by
this Court as right to life is the most precious right guaranteed by Article 21
of the Constitution. The guarantee by Article 21 is available to every
person and even the State has no authority to violate that right.
8. In D.K. Basu
1
, this Court was concerned with custodial
violence and deaths in police lockups. While framing the requirements to
be followed in all cases of arrest or detention till legal provisions are made
in that behalf, this Court issued certain directives as preventive measures.
While doing so, the Court in para 29 (page 433 of the Report) made the
following weighty observations:
1
D.K. Basu v. State of West Bengal; [(1997) 1 SCC 416]
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29. How do we check the abuse of police power?
Transparency of action and accountability perhaps are two
possible safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop work
culture, training and orientation of the police force consistent
with basic human values. Training methodology of the police
needs restructuring. The force needs to be infused with
basic human values and made sensitive to the constitutional
ethos. Efforts must be made to change the attitude and
approach of the police personnel handling investigations so
that they do not sacrifice basic human values during
interrogation and do not resort to questionable forms of
interrogation. With a view to bring in transparency, the
presence of the counsel of the arrestee at some point of time
during the interrogation may deter the police from using
third-degree methods during interrogation.
9. The observations made by this Court in Om Prakash
2
(para
42, page 95 of the Report) are worth noticing:
42. It is not the duty of the police officers to kill the accused
merely because he is a dreaded criminal. Undoubtedly, the
police have to arrest the accused and put them up for trial.
This Court has repeatedly admonished trigger-happy police
personnel, who liquidate criminals and project the incident as
an encounter. Such killings must be deprecated. They are
not recognised as legal by our criminal justice administration
system. They amount to State-sponsored terrorism. But, one
cannot be oblivious of the fact that there are cases where
the police, who are performing their duty, are attacked and
killed. There is a rise in such incidents and judicial notice
must be taken of this fact. In such circumstances, while the
police have to do their legal duty of arresting the criminals,
they have also to protect themselves. The requirement of
sanction to prosecute affords protection to the policemen,
who are sometimes required to take drastic action against
criminals to protect life and property of the people and to
protect themselves against attack. Unless unimpeachable
evidence is on record to establish that their action is
indefensible, mala fide and vindictive, they cannot be
2
Om Prakash and Ors. v. State of Jharkhand through the Secretary, Department of Home, Ranchi-1 and
Anr.; [(2012) 12 SCC 72]
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subjected to prosecution. Sanction must be a precondition to
their prosecution. It affords necessary protection to such
police personnel. The plea regarding sanction can be raised
at the inception.
10. The statistics of the National Crime Records Bureau, 2013 are
worth noticing. Table 14.2 under the title “Persons Killed Or Injured in
Police Firing During 2013 (Event-Wise)” shows that there were 684
occasions of police firing classified as “Riot Control”, “Anti-Dacoity
Operations”, “Against Extremists and Terrorists” and “Against Others” in
2013 and, in these police firings, 103 civilians were killed and 213 were
injured and, as regards policemen, 47 were killed and 1158 were injured.
10.1 Table 15.1 gives details of police personnel killed across the
country in 2013 in terrorist/extremists operations, dacoity operations or
other raids by riotous mobs and by other criminals.
10.2 Table 16.1 catalogues the complaints/cases registered against
police personnel during 2013. During the year 2013, 51120 complaints
were received, of which 26640 were declared false or unsubstantiated. Of
the rest, 14928 were dealt departmentally. Of this, 3896 were reported for
regular departmental action while 799 were sent up for trials/charge-
sheeted. In the completed trials, 53 were convicted. In departmental
proceedings, 544 were dismissed from service and 3980 had been
awarded major punishment.
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10.3 Incidence of human rights violations by police during 2013 is
indicated in Table 16.2. This Table lists only two fake encounters (both
from Assam). The figure raises doubts about its correctness.
11. In some of the countries when a police firearms officer is
involved in a shooting, there are strict guidelines and procedures in place
to ensure that what has happened is thoroughly investigated. In India,
unfortunately, such structured guidelines and procedures are not in place
where police is involved in shooting and death of the subject occurs in
such shooting. We are of the opinion that it is the constitutional duty of this
Court to put in place certain guidelines adherence to which would help in
bringing to justice the perpetrators of the crime who take law in their own
hands.
12. Mr. Prashant Bhushan, learned counsel for PUCL has
suggested the following guidelines:
Whenever the police are in receipt of any intelligence or tip
off regarding criminal movements or activities pertaining to
the commission of grave criminal offences, it shall be
entered into a case diary. If the receiving authority is the
police officer of a particular police station, the relevant entry
must be made in the general diary and if the receiving
authority is a police officer of higher rank, the relevant entry
must be made in a separate diary kept and provided therefor
and then be pursued further in accordance with the
procedural law.
A dedicated investigative team / separate cadre of police be
formed/established which shall be attached to the
NHRC/SHRC to investigate encounters and other matters of
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which NHRC/SHRC is seized. Till the time such dedicated
team/police cadre is established, it is mandatory that the
matters relating to encounter deaths/injuries are handed
over for investigation to an independent investigating agency
such as CBI/SHRC. NHRC/SHRC shall direct as to who will
conduct the investigation.
Whenever a police party is involved in an encounter it shall
immediately inform the NHRC/SHRC and the local police
station of the encounter and shall seal off the premises to
avoid any contamination till such investigative team of the
NHRC/SHRC arrives subject to compliance with the other
guidelines regarding the preservation of fingerprints etc.
When a Police Officer receives any information, either orally
or in writing, in furtherance of section 154 of the Cr.P.C.
regarding death or injuries caused in the course of an
encounter operation between the Police party and others, he
shall enter the information in the Crime Register or any other
appropriate register of that particular police station and shall
immediately send the Report (First Information Report) to the
court without any further delay through a proper channel.
The copies of the said report shall also be sent to the higher
officials including the DGP of the concerned State and
NHRC/SHRC. The DGP must also send his report with
regard to such encounter death to NHRC. The DGP shall
take disciplinary action against the officer-in-charge of the
police station if he/she fails to send the report regarding the
encounter death to NHRC and DGP. A report, as enjoined
under section 157(1) of the Criminal Procedure Code, shall
also be followed necessarily by the concerned police station.
The independent investigating team shall take such steps by
deputing the man or men to get the scene of crime guarded
so as to avoid or obliterate or disfigure the existing physical
features of the scene of occurrence or the operation
encounter. This guarding of the scene of occurrence shall
continue till the inspection of occurrence takes place by the
aforesaid independent investigating team and preparation of
spot panchnama and the recovery panchnama.
The police officer involved in the encounter operation and
the independent investigating team, shall make all necessary
efforts and arrangements immediately after the said criminal
was brought down to the ground and incapacitated to
preserve finger prints of the criminals or the dreaded
gangster, and those on the weapons handled during the
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course of the encounter. The said fingerprints, properly
taken and preserved, must be sent to the Chemical Analyzer
for comparison of the fingerprints of the dead body to be
taken.
The materials which are found on the scene of occurrence or
the operation encounter and such of the materials including
the blood stained earth and blood stained materials and the
sample earth and other moveable physical features, shall
also be recovered by the independent investigating team
under the cover of recovery panchnama attested by
independent witnesses.
To fix the exact date and actual place of occurrence in which
operation encounter has taken place, a rough sketch
regarding the topography of the existing physical features of
the said place shall be drawn by the aforesaid independent
investigating team either by themselves or by the help of the
staff of the Survey Department when the spot panchnama is
prepared.
The inquest examination shall be conducted by aforesaid
independent investigating team on the spot itself without any
delay and statements of the inquest witnesses are to be
recorded under section 161 of the Code of Criminal
Procedure and the inquest Panchnama shall be sent along
with the above case record prepared along with the First
Information Report without any delay whatsoever to the
Court.
A Magisterial Inquiry must invariably be held in all cases of
death which occur in the course of police action. The next of
kin of the deceased must invariably be associated in such
inquiry.
In every case when a complaint is made against the police
alleging commission of a criminal act on their part, which
makes out a cognizable case of culpable homicide, an FIR to
this effect must be registered under appropriate sections of
the I.P.C. Such case shall also be investigated by the
aforesaid investigating team.
Prompt prosecution and disciplinary action must be initiated
against all delinquent officers found guilty in the magisterial
enquiry/the said investigation. Prosecution of such
delinquent officers shall be conducted by the investigating
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agency. Such delinquent officers must be placed under
suspension.
Question of granting of compensation to the dependents of
the deceased would depend upon the facts and
circumstances of each case and it shall be determined by
NHRC. However, in every case of a person being killed by
the police party in the course of an encounter, the
compensation granted must necessarily be at least the same
as that granted to the dependants of a police officer killed by
terrorists in the course of duty by the Government.
No out-of-turn promotion, cash award or gallantry reward
shall be bestowed on the concerned officers pursuant to
their role in an encounter as this may be an incentive for
officers to conduct encounters.
A six monthly statement of all cases of deaths in police
action in the State shall be sent by the Director General of
Police to the Commission, so as to reach its office by the
15
th
day of January and July respectively. The statement
may be sent in the following format along with post-mortem
reports and inquest reports, wherever available and also the
inquiry reports:-
1. Date and place of occurrence.
2. Police Station, District.
3. Circumstances leading to deaths:
i. Self defence in encounter
ii. In the course of dispersal of unlawful assembly
iii. In the course of affecting arrest.
4. Brief facts of the incident
5. Criminal Case No.
6. Investigating Agency
7. Findings of the magisterial Inquiry/enquiry by Senior
Officers:
a. disclosing in particular names and designation of
police officials, if found responsible for the death;
and
b. whether use of force was justified and action taken
was lawful.
In order to ascertain the identity of persons killed in Police
encounter, their photographs and other details should be
advertised on T.V., newspapers etc.
13
With respect to the post mortem conducted after an
encounter it is imperative that such a post mortem is, at the
least, conducted in the District Level Government Hospital in
the presence of at least three qualified doctors of which one
must be a senior doctor. All such post-mortems must also
necessarily be videotaped and copies of such videotapes
preserved.
If the injured criminals during the operation encounter are
found alive, not only that they should be provided medical
aid immediately but also arrangements and attempts shall be
taken by the independent investigative team to record their
statements under Section 164 of the Criminal Procedure
Code, either by a Magistrate, if possible and if not, by the
Medical Officer concerned, duly attested by the hospital staff
mentioning the time and factum that while recording such
statements the injured were in a state of position that they
will be able to give statements and the connected certificates
by the doctors appended thereto.
After the examination of further witnesses and completing
the investigation inclusive of securing the accused or
accused persons, the independent investigative team is
directed to send final report to the Court of Competent
jurisdiction as required under Section 173 of the Criminal
Procedure Code for further proceeding.
Either in sending the First Information Report or sending with
the general diary entry referred in the guideline nos. 1 and 2,
the concerned police / independent investigative team, shall
avoid any iota of delay under any circumstances whatsoever
so also rough sketch showing the topography of the scene
and the recovery of materials and the blood stained
materials with the sample earth and the blood stained earth
with the other documents viz, the spot panchnama, recovery
panchnama - all seems very vital documents - the
respondents police are also directed to send them to the
Court of concerned jurisdiction without any delay.
13. The revised guidelines/procedures to be followed in cases of
deaths caused in police action framed by NHRC read as under:
A. When the police officer in change of a police station
receives information about death in an encounter with the
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police, he shall enter that information in the appropriate/ reg-
ister.
B. Where the police officers belonging to the same
police station are members of the encounter party, whose
action resulted in death, it is desirable that such cases are
made over for investigation to some other independent
investigation agency, such as State CBCID.
C. Whenever a specific complaint is made against the
police alleging commission of a criminal act on their part,
which makes out a cognizable case of culpable homicide, an
FIR to this effect must be registered under appropriate
sections of the I.P.C. Such case shall be investigated by
State CBCID or any other specialized investigation agency.
D. A magisterial enquiry must be held in all cases of
death which occurs in the course of police action, as
expeditiously as possible, preferably, within three months.
The relatives of the deceased, eye witnesses having
information of the circumstances leading to encounter, police
station records etc. must be examined while conducting such
enquiry.
E. Prompt prosecution and disciplinary action must be
initiated against all delinquent officers found guilty in the
magisterial enquiry/police investigation.
F. No out-of-turn promotion or instant gallantry rewards
shall be bestowed on the concerned officers soon after the
occurrence. It must be ensured at all costs that such rewards
are given/recommended only when the gallantry of the
concerned officer is established beyond doubt.
G. (a) All cases of deaths in police action in the states shall
be reported to the Commission by the Senior Superintendent
of Police/Superintendent of Police of the District within 48
hours of such death in the following format:
1. Date and place of occurrence
2. Police station, district
3. Circumstances leading to death :
(i) Self-defence in encounter
(ii) In course of dispersal of unlawful assembly
(iii) In the course of effecting arrest
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(iv) Any other circumstances
4. Brief facts of the incident
5. Criminal case No.
6. Investigating agency
(b) A second report must be sent in all cases of death in
police action in the state by the Sr. Superintendent of
Police/Superintendent of Police to the commission within
three months providing following information:
1. Post mortem report
2. Inquest report
3. Findings of the magisterial enquiry/enquiry by
senior officers disclosing:
(i) Names and designation of police official, if found
responsible for the death:
(ii) Whether use of force was justified and action
taken was lawful:
(iii) Result of the forensic examination of 'handwash'
of the deceased to ascertain the presence of residue
of gun powder to justify exercise of right of self
defence; and
(iv) Report of the Ballistic Expert on examination of
the weapons alleged to have been used by the
deceased and his companions.
14. Union of India in its counter affidavit has given its comments to
the guidelines framed by the High Court and so also to the guidelines
suggested by learned counsel for PUCL. Union of India has expressed its
reservation on certain guidelines on diverse counts including the practical
difficulties in their implementation. As regards States and Union Territories,
their views are not uniform on the guidelines framed by the High Court and
also the guidelines suggested by PUCL. In respect of some of the
guidelines, some States and Union Territories have toed the line of Union
of India in not accepting the same on the ground of practical difficulties in
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their implementation. Few States have highlighted the procedure that is
being followed by them when any death or encounter takes place. As
regards investigation in such cases, some of the States have highlighted
that the investigation of such cases cannot be done by officers /
employees of the same police station and it is ensured that investigation of
such cases is done by some higher officer. On the other hand, few States /
Union Territories have stated that initial investigation may be conducted by
the local police because local police is acquainted with the modus
operandi of local criminals and crime.
15. Before we proceed further, we put on record our appreciation
for the efforts of learned amicus curiae in collating the guidelines framed
by the High Court, guidelines suggested by PUCL and guidelines issued
by NHRC and their acceptability or otherwise by the Union / States / Union
Territories and his own comments.
16. Article 21 of the Constitution provides “no person shall be
deprived of his life or personal liberty except according to procedure
established by law”. This Court has stated time and again that Article 21
confers sacred and cherished right under the Constitution which cannot be
violated, except according to procedure established by law. Article 21
guarantees personal liberty to every single person in the country which
includes the right to live with human dignity.
17
17. In line with the guarantee provided by Article 21 and other
provisions in the Constitution of India, a number of statutory provisions
also seek to protect personal liberty, dignity and basic human rights. In
spite of Constitutional and statutory provisions aimed at safeguarding the
personal liberty and life of a citizen, the cases of death in police
encounters continue to occur. This Court has been confronted with
encounter cases from time to time. In Chaitanya Kalbagh
3
, this Court was
concerned with a writ petition filed under Article 32 of the Constitution
wherein the impartial investigation was sought for the alleged killing of 299
persons in the police encounters. The Court observed that in the facts and
circumstances presented before it, there was an imperative need of
ensuring that the guardians of law and order do in fact observe the code of
discipline expected of them and that they function strictly as the protectors
of innocent citizens.
18. In R.S. Sodhi
4
, a writ petition was brought to this Court under
Article 32 of the Constitution relating to an incident in which 10 persons
were reported to have been killed in what were described as “encounters”
between the Punjab militants and the local police. The Court observed,
“Whether the loss of lives was on account of a genuine or a fake encounter
is a matter which has to be inquired into and investigated closely”. The
3
Chaitanya Kalbagh and Ors. v. State of U.P. and Ors.; [(1989) 2 SCC 314]
4
R.S. Sodhi, Advocate v. State of U.P. and Ors.; [ 1994 Supp (1) SCC 143]
18
Court entrusted the investigation to the Central Bureau of Investigation (for
short, “the CBI”) to ensure that the investigation did not lack credibility.
19. In Satyavir Singh Rathi
5
, the matter before this Court arose
from the First Information Report (for short, “FIR”) registered against police
personnel involved in a shoot-out for an offence punishable under Sections
302/34 of the Indian Penal Code (for short, “IPC”). In the complaint, it was
alleged that the police officials had surrounded the car and had fired
indiscriminately and without cause at the occupants, killing the two and
causing grievous injuries to the third. This Court concurred with the High
Court and the trial Court on the conviction under Section 302 IPC and
rejected the defence set up by the accused persons relying on Exception 3
in Section 300 IPC as it was found to be not in good faith or due discharge
of their duty.
20. In Prakash Kadam
6
, the allegation was that the accused
persons decided to eliminate the deceased in a false police encounter. The
Court noted that this was a very serious case wherein prima facie some
police officers and staff were engaged by some private persons to kill their
opponent and the police officers and the staff acted as contract killers for
them. The Court warned policemen that they would not be excused for
5
Satyavir Singh Rathi, Assistant Commissioner of Police and Ors. v. State through Central Bureau of
Investigation; [(2011) 6 SCC 1]
6
Prakash Kadam and Ors. v. Ramprasad Vishwanath Gupta and Anr.; [(2011) 6 SCC 189]
19
committing murder in the name of “encounter” on the pretext that they
were carrying out the orders of their superior officers or politicians. The
Court said that the “encounter” philosophy is a criminal philosophy.
21. In Om Prakash
2
, the allegation against the accused persons
was that the complainant’s son was killed by them in a fake police
encounter. The Court, however, held that the encounter was a genuine
one though NHRC guideline for photography of the autopsy was not
complied with.
22. A two-Judge Bench of this Court in B.G. Verghese
7
dealt with
two writ petitions. In Writ Petition (Criminal) No.31/2007, it was stated that
during the years 2003-2006, 21 police encounter killings took place in the
State of Gujarat. It was alleged that the so-called police encounters were
fake and the persons were killed by the police officials in cold blood. In the
writ petition a prayer was made for ordering an inquiry into all the cases of
police encounters, which, according to the petitioner, were fake in order to
establish the rule of law and to bring out the truth in each case. In the
other Writ Petition (Criminal) No. 83/2007, the allegation related to the
killing of one person in a police encounter. It was alleged that this too was
an instance of fake encounter in which the victim was killed by the officers
of the crime branch of police in cold blood and in a premeditated manner.
7
B.G. Verghese v. Union of India and Ors.; [(2013) 11 SCC 525]
20
The prayer was made in the writ petition to order an independent
investigation by a special investigation team into all the fake encounters.
During the pendency of the matter before this Court, the State of Gujarat
had constituted a Monitoring Authority and Special Task Force for
investigation of police encounters. Since the former Judge of this Court
was appointed as Chairman of the Monitoring Authority, the Court
requested the Chairman of the Monitoring Authority to look into all the
cases of alleged fake encounters as enumerated in the two writ petitions
and to have them thoroughly investigated so that full and complete truth
comes to light in each case.
23. In Rohtash Kumar
8
, again a two-Judge Bench of this Court
was confronted with killing of a person in an encounter by the police
officials. Having found that the death took place in the fake police
encounter, the Court directed an independent investigating agency to
conduct the investigation so that guilty could be brought to justice.
24. The above cases have been referred only by way of
illustration to show that killings in police encounters require independent
investigation. The killings in police encounters affect the credibility of the
rule of law and the administration of the criminal justice system.
8
Rohtash Kumar v. State of Haryana through the Home Secretary, Government of Haryana, Civil
Secretariat, Chandigarh and Ors.; [(2013) 14 SCC 290]
21
25. We are not oblivious of the fact that police in India has to
perform a difficult and delicate task, particularly, when many hardcore
criminals, like, extremists, terrorists, drug peddlers, smugglers who have
organized gangs, have taken strong roots in the society but then such
criminals must be dealt with by the police in an efficient and effective
manner so as to bring them to justice by following rule of law. We are of
the view that it would be useful and effective to structure appropriate
guidelines to restore faith of the people in police force. In a society
governed by rule of law, it is imperative that extra-judicial killings are
properly and independently investigated so that justice may be done.
26. Learned amicus curiae submits that when a police encounter
occurs, it is important that a complaint is registered; the evidence is
preserved; independent and fair investigation takes place; victims are
informed and inquest is conducted.
27. Sections 174
ϒ
, 175
∞
and 176
♣
of the Code of Criminal
ϒ
Section 174. Police to inquire and report on suicide, etc. - (1) When the officer in charge of a police
station or some other police officer specially empowered by the State Government in that behalf receives
information that a person has committed suicide, or has been killed by another or by an animal or by
machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some
other person has committed an offence, he shall immediately give intimation thereof to the nearest
Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by
the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall
proceed to the place where the body of such deceased person is, and there, in the presence of two or more
respectable inhabitants of the neighbourhood shall make an investigation, and draw up a report of the
apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be
found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks
appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur
therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
22
Procedure, 1973 (for short “Code”) provide for Magisterial inquiries into
(3) When-
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances
raising a reasonable suspicion that some other person committed an offence in relation to such woman;
or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the
woman has made a request in this behalf; or
(iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient so to do, he shall, subject to such rules
as the State Government may prescribe in this behalf, forward the body, with a view to its being
examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the
State Government, if the state of the weather and the distance admit of its being so forwarded without
risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-
divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State
Government or the District Magistrate.
∞
Section 175. Power to summon persons. - (1) A police officer proceeding under section 174, may, by
order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and
any other person who appears to be acquainted with the facts of the case and every person so summoned
shall be bound to attend and to answer truly all questions other than questions the answers to which have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.
(2) If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall not be
required by the police officer to attend a Magistrate's Court.
♣
Section 176. Inquiry by Magistrate into cause of death. - (1) when the case is of the nature referred to in
clause (i) or clause (ii) of sub-section (3) of section 174, the nearest Magistrate empowered to hold inquests
shall, and in any other case mentioned in sub- section (1) of section 174, any Magistrate so empowered
may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the
police officer; and if he does so, he shall have all the powers in conducting it which he would have in
holding an inquiry into an offence.
(1A) Where,-
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody authorized by the
Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an
inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within
whose local jurisdiction the offence has been committed.
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith
in any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any
person who has been already interred, in order to discover the cause of his death, the Magistrate may cause
the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the
relatives of the deceased whose names and addresses are known, and shall allow them to remain present at
the inquiry.
(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer
holding an inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four
hours of the death of a person, forward the body with a view to its being examined to the nearest Civil
Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not
possible to do so for reasons to be recorded in writing.
Explanation.- In this section, the expression “relative” means parents, children, brothers, sisters and spouse.
23
cases of unnatural death. It is apposite to mention that a system for
investigating the cause of death in cases of unusual or suspicious
circumstances is in place in most countries. The system centers around
the policy to have reassurance that unexplained deaths do not remain
unexplained and that the perpetrator is tried by a competent court
established by law.
28. Universal Declaration of Human Rights (UDHR) has framed
certain general principles on the effective prevention and investigation of
extra-legal, arbitrary and summary executions
ℑ
. The principles so framed
by the UDHR are intended to guarantee independence while investigating
police killings and help in preventing potential for abuse, corruption,
ineffectiveness and neglect in investigation.
ℑ
1. Requiring states to provide the investigative authority with sufficient power to compel any
relevant parties including the official implicated to testify (Provision 10).
2. Obligating states to provide for an independent inquiry into alleged police misconduct through an
appointed commission when existing procedures are inadequate or when there are allegations of
such inadequacies. The commission members must be independent of individuals implicated in the
incident (Provision 11).
3. Requiring that those conducting autopsies must be able to function independently and impartially
(Provision 14).
4. Requiring states to protect those who witness or allege police misconduct and obligating states to
remove the implicated officers from any involvement in the investigation (Provision 15).
5. Affording the victim’s family and legal representative the right to request that an independent
qualified representative be present during the autopsy of the victim’s body (Provision 16).
6. Calling for the prompt submission of a written report on the investigation specifically detailing the
methods utilized as well as the findings of fact and law resulting from the inquiry. It further
requires that such reports be released to the public (Provision 17).
7. Recognizing that those undertaking these investigations must “have at their disposal all the
necessary budgetary and technical resources for effective investigation” into police killings.
24
29. The United Nations Code of Conduct for Law Enforcement
Officers (which includes all officers of the law, who exercise police powers)
lays down that in the performance of duties, Law Enforcement Officers
shall respect and protect human dignity and maintain and uphold human
rights of all persons. Basic human rights standards for good conduct by
Law Enforcement Officers by Amnesty International, inter alia, suggest, (1)
Do not use force except when strictly necessary and to the minimum
extent required under the circumstances and (2) Do not carry out, order or
cover up extra-judicial executions or “disappearances” and refuse to obey
any order to do so.
30. Minnesota Protocol (Model protocol for a legal investigation of
extra-legal, arbitrary and summary executions) establishes a long line of
requisite steps. The Protocol sets the principles and medico legal
standards for the investigation and prevention of extra legal, arbitrary and
summary executions. The Protocol provides for in-depth guidance in a
general way on the subjects (1) purpose of an inquiry (2) procedure for an
inquiry (3) processing of the crime scene (4) processing of the evidence (5)
avenues to investigation (6) personal testimony etc. In Section C of the
Minnesota Protocol, a long list of requisite steps is suggested, some of
which being:
25
1. the area in which evidence is located should be closed off
to the public;
2. photographs of the scene and physical evidence located at
the scene should be taken in a prompt manner;
3. investigators should promptly record the condition of the
body;
4. weapons such as guns, projectiles, bullets and cartridge
cases should be taken and preserved;
5. tests for gunshot residue and trace metal detection should
be performed on the victims’ bodies and the police officers
involved;
6. fingerprints of relevant persons should be preserved;
7. information should be obtained from witnesses;
8. all persons at the scene should be identified;
9. a report detailing the work of the investigators during their
on-site visit should be kept and later disclosed;
10. evidence should be properly collected, handled, packaged,
labeled, and placed in safekeeping to prevent
contamination and loss of evidence.
31. In light of the above discussion and having regard to the
directions issued by the Bombay High Court, guidelines issued by NHRC,
suggestions of the appellant – PUCL, amicus curiae and the affidavits filed
by the Union of India, State Governments and the Union Territories, we
think it appropriate to issue the following requirements to be followed in the
matters of investigating police encounters in the cases of death as the
standard procedure for thorough, effective and independent investigation:
26
(1) Whenever the police is in receipt of any intelligence or tip-off
regarding criminal movements or activities pertaining to the
commission of grave criminal offence, it shall be reduced into writing
in some form (preferably into case diary) or in some electronic form.
Such recording need not reveal details of the suspect or the location
to which the party is headed. If such intelligence or tip-off is
received by a higher authority, the same may be noted in some form
without revealing details of the suspect or the location.
(2) If pursuant to the tip-off or receipt of any intelligence, as
above, encounter takes place and firearm is used by the police party
and as a result of that, death occurs, an FIR to that effect shall be
registered and the same shall be forwarded to the court under
Section 157 of the Code without any delay. While forwarding the
report under Section 157 of the Code, the procedure prescribed
under Section 158 of the Code shall be followed.
(3) An independent investigation into the incident/encounter shall
be conducted by the CID or police team of another police station
under the supervision of a senior officer (at least a level above the
27
head of the police party engaged in the encounter). The team
conducting inquiry/investigation shall, at a minimum, seek:
(a) To identify the victim; colour photographs of the victim
should be taken;
(b) To recover and preserve evidentiary material, including
blood-stained earth, hair, fibers and threads, etc., related to the
death;
(c) To identify scene witnesses with complete names,
addresses and telephone numbers and obtain their statements
(including the statements of police personnel involved) concerning
the death;
(d) To determine the cause, manner, location (including
preparation of rough sketch of topography of the scene and, if
possible, photo/video of the scene and any physical evidence) and
time of death as well as any pattern or practice that may have
brought about the death;
(e) It must be ensured that intact fingerprints of deceased
are sent for chemical analysis. Any other fingerprints should be
located, developed, lifted and sent for chemical analysis;
28
(f) Post-mortem must be conducted by two doctors in the
District Hospital, one of them, as far as possible, should be In-
charge/Head of the District Hospital. Post-mortem shall be video-
graphed and preserved;
(g) Any evidence of weapons, such as guns, projectiles,
bullets and cartridge cases, should be taken and preserved.
Wherever applicable, tests for gunshot residue and trace metal
detection should be performed.
(h) The cause of death should be found out, whether it was
natural death, accidental death, suicide or homicide.
(4) A Magisterial inquiry under Section 176 of the Code must
invariably be held in all cases of death which occur in the course of
police firing and a report thereof must be sent to Judicial Magistrate
having jurisdiction under Section 190 of the Code.
(5) The involvement of NHRC is not necessary unless there is
serious doubt about independent and impartial investigation.
However, the information of the incident without any delay must be
sent to NHRC or the State Human Rights Commission, as the case
may be.
29
(6) The injured criminal/victim should be provided medical aid and
his/her statement recorded by the Magistrate or Medical Officer with
certificate of fitness.
(7) It should be ensured that there is no delay in sending FIR,
diary entries, panchnamas, sketch, etc., to the concerned Court.
(8) After full investigation into the incident, the report should be
sent to the competent court under Section 173 of the Code. The trial,
pursuant to the chargesheet submitted by the Investigating Officer,
must be concluded expeditiously.
(9) In the event of death, the next of kin of the alleged
criminal/victim must be informed at the earliest.
(10) Six monthly statements of all cases where deaths have
occurred in police firing must be sent to NHRC by DGPs. It must be
ensured that the six monthly statements reach to NHRC by 15
th
day
of January and July, respectively. The statements may be sent in the
following format along with post mortem, inquest and, wherever
available, the inquiry reports:
(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths:
30
(a) Self defence in encounter.
(b) In the course of dispersal of unlawful
assembly.
(c) In the course of affecting arrest.
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial Inquiry/Inquiry by
Senior Officers:
(a) disclosing, in particular, names and
designation of police officials, if found responsible
for the death; and
(b) whether use of force was justified and action
taken was lawful.
(11) If on the conclusion of investigation the materials/evidence
having come on record show that death had occurred by use of
firearm amounting to offence under the IPC, disciplinary action
against such officer must be promptly initiated and he be placed
under suspension.
(12) As regards compensation to be granted to the dependants of
the victim who suffered death in a police encounter, the scheme
provided under Section 357-A of the Code must be applied.
(13) The police officer(s) concerned must surrender his/her
weapons for forensic and ballistic analysis, including any other
31
material, as required by the investigating team, subject to the rights
under Article 20 of the Constitution.
(14) An intimation about the incident must also be sent to the
police officer’s family and should the family need services of a
lawyer / counselling, same must be offered.
(15) No out-of-turn promotion or instant gallantry rewards shall be
bestowed on the concerned officers soon after the occurrence. It
must be ensured at all costs that such rewards are
given/recommended only when the gallantry of the concerned
officers is established beyond doubt.
(16) If the family of the victim finds that the above procedure has
not been followed or there exists a pattern of abuse or lack of
independent investigation or impartiality by any of the functionaries
as above mentioned, it may make a complaint to the Sessions Judge
having territorial jurisdiction over the place of incident. Upon such
complaint being made, the concerned Sessions Judge shall look into
the merits of the complaint and address the grievances raised
therein.
32. The above guidelines will also be applicable to grievous injury
cases in police encounter, as far as possible.
32
33. Accordingly, we direct that the above requirements / norms
must 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.
….………..……………………CJI.
(R.M. Lodha)
NEW DELHI; …….………..……………………J.
SEPTEMBER 23, 2014. (Rohinton Fali Nariman)