THE TROUBLE WITH EXTRA JUDICIAL KILLINGS VIJAYALAKSHMI RAJU BASICS OF LAW Sat, Jan 11, 2020, at ,01:48 PM While many people have welcomed the killing of all four accused in the Hyderabad rape-murder case in a police encounter, questions have also been raised over the legality and propriety of the police action. Encounter killings have been under scrutiny for decades. This is what the National Human Rights Commission (NHRC) and the Supreme Court have said on the proper procedures to be followed during such action by the police. NHRC GUIDELINES In March 1997, NHRC chairman Justice M.N. Venkatachaliah wrote to all chief ministers, saying that the commission has been receiving complaints from members of the general public and NGOs that the occurrence of fake encounters by the police are on the rise and that police kill the accused persons instead of subjecting them to the due process of law”. Justice Venkatachaliah, who was the CJI in 1993-94, underlined that “under our laws, the police have not been conferred any right to take away the life of another person”, and “if by his act, 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”. The only circumstances under which such a killing would not constitute an offense are… * If the death is caused in the exercise of the right of private defense. * Under Section 46 of the CrPC, which authorizes the police to use force, extending up to the cause of death, as may be necessary to arrest the person accused of an offense punishable with death or imprisonment for life. In light of this, the NHRC asked all states and Union Territories to ensure that the police follow a set of guidelines in cases where death is caused in police encounters. They were… * When the officer in charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register. * Information, as received, shall be regarded as sufficient to suspect the commission of a cognizable offense and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offense was committed and by whom. * As officers belonging to the same police station are members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as state CID. * The question of granting compensation to the dependents of the deceased may be considered in cases ending in a conviction if police officers are prosecuted on the basis of the results of the investigation. In May 2010, acting NHRC chairman Justice G.P. Mathur repeated the crux of the 1997 letter, and underlined that “the police do not have a right to take away the life of a person”. The NHRC expanded the guidelines, adding several new procedures, including… * Whenever a specific complaint is made against the police alleging commission of a criminal act, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC. * A magisterial inquiry must be held in all cases of death which occur in the course of police action, as expeditiously as possible, preferably within three months. * All cases of death in police action in the states shall be reported to the NHRC by the senior superintendent of police/superintendent of police of the district within 48 hours of such death in (a given) format. * A second report must be sent in all cases to the NHRC within three months providing information (including) post-mortem report, inquiry report, findings of the magisterial inquiry/inquiry by senior officers. SUPREME COURT DIRECTIVES In the People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors, a Bench comprising Chief Justice of India R.M. Lodha and Justice Rohinton Nariman issued a detailed 16-point procedure “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 directives include... * Whenever the police are in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of a grave criminal offense, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. * 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. * 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 head of the police party engaged in the encounter). * A magisterial inquiry under Section 176 of the code must invariably be held in all cases of death that occur in the course of police firing and a report thereof must be sent to the judicial magistrate having jurisdiction under Section 190 of the code. * The NHRC’s involvement is not necessary unless there is serious doubt about the investigation being independent and impartial. However, the information of the incident without any delay must be sent to the NHRC or the State Human Rights Commission as the case may be. * 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 the law declared under Article 141 of the Constitution.