Gangster-turned-politician Atiq Ahmed’s son Asad and his aide Ghulam, both wanted in connection with the Umesh Pal murder case, were killed in an encounter on Thursday at Jhansi.
On these extra-judicial killings, popularly known as “encounters”, the National Human Rights Commission (NHRC) and subsequently, the Supreme Court have laid down proper guidelines and procedures to be followed to prevent any misuse of power by the law enforcement agencies.
What was the case Asad was accused in?
The case involves the alleged kidnapping of Umesh Pal, who along with his two police guards was shot dead in Prayagraj on February 24. Umesh was an eyewitness in the 2005 Raju Pal murder case in which Ahmed is a prime accused.
According to Umesh’s wife Jaya, in 2006, the former MP and his associates kidnapped her husband and forced him to give a statement in their favour in court.
What has the Supreme Court said on “encounters”?
On September 23, 2014, a bench of then CJI RM Lodha and Rohinton Fali Nariman issued detailed guidelines enumerating 16 points 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.”
The guidelines came in the case “People’s Union for Civil Liberties v State of Maharashtra”, and included the registration of a first information report (FIR) as mandatory along with provisions for magisterial inquiry, keeping written records of intelligence inputs and independent investigation by bodies such as the CID.
“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 IPC,” the court said in its judgment, adding that such an inquiry made under Section 176 of the Code of Criminal Procedure, 1973, must show “whether use of force was justified and action taken was lawful.”
Following such an inquiry, a report must be sent to the Judicial Magistrate having jurisdiction under Section 190 of the Code, the court said.
The guidelines also stated that whenever the police receives any intelligence or tip-off on criminal movements or activities relating 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.”
Following such tip-off or intelligence, if an encounter takes place and a firearm is used by the police party, resulting in death, then an FIR to that effect has to be registered and forwarded to the court under Section 157 without delay.
Provisions for an independent investigation into the encounter are also listed which “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 head of the police party engaged in the encounter).”
Further, the court directed that these “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”. Article 141 says that the law declared by the Supreme Court shall be binding on all other courts in Indian territory.
With regard to the National Human Rights Commission’s involvement, the court deemed it as not necessary, “unless there is serious doubt about independent and impartial investigation.” However, the information about the incident must be sent to NHRC or the State Human Rights Commission, the court added.
Following these guidelines, the top court had directed the Uttar Pradesh government to hold an inquiry into the killing of gangster Vikas Dubey, who was shot dead by policemen after he allegedly tried to flee while being transported from Madhya Pradesh.
Prior to this, the NHRC, in 1997, under its former chairperson Justice MN Venkatachaliah, had given a set of guidelines in cases where death is caused in police encounters.
What did the NHRC say?
In March 1997, former CJI Justice M N Venkatachaliah wrote to all Chief Ministers saying that the NHRC was receiving complaints from the general public and NGOs that instances of fake encounters by the police were on the rise, and that the police kills accused(s) instead of subjecting them to the due process of law.
“Under our laws the police have not been conferred any right to take away the life of another person”, and “if, by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law,” the letter said.
In the light of this, the NHRC asked all states and Union Territories to ensure that police follow a set of guidelines in cases where death is caused in police encounters. These included the police’s duty to enter all information received about encounter deaths in an “appropriate register” and provisions for investigation by independent agencies like the State CID.
“Information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom,” the guidelines stated.
The guidelines also said that the grant of compensation to the deceased’s dependents may be considered where police officers may be convicted and prosecuted after investigation.
In 2010, these were amended under the then NHRC chief Justice GP Mathur, to include provisions for 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.
Three months after the encounter, a second report must be sent to the NHRC, providing information, inclusive of the post mortem report, inquest report and the enquiry findings.
What is a recent case that saw action on cops?
In December 2019, the Supreme Court ordered an independent investigation headed by former SC judge VN Sirpurkar into the killing of four men accused of the gangrape and murder of a 26-year old veterinary doctor in Hyderabad by the police. In doing so, the SC 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, in May 2022, the Commission booked the 10 policemen for murder, deeming the encounter to be a fake one, and directed the registration of FIRs against the police personnel.
