SUPREME COURT ORDAINED “STANDARD OPERATING PROCEDURE” IN
ALL CASES OF DEATH AND GRIEVOUS INJURY IN POLICE ENCOUNTERS
People’s Union for Civil Liberties & Anr. V. State of
Maharashtra & Ors. (CRIMINAL APPEAL NO.1255 OF 1999), DOD SEPT 23, 2014
In light of the 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, the Supreme Court issued the following requirements to be
followed as the standard procedure for thorough, effective and independent
investigation 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:
(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 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;
(f) Post-mortem
must be conducted by two doctors in the District Hospital, one of them, as far
as possible, should be Incharge/ Head of the District Hospital. Post-mortem
shall be videographed 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.
(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 15th 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:
(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 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.
NOTE:
1. Section 100 IPC…when the right of private defence of the body extends to
causing death.—The right of private defence of the body extends….. to the
voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions
hereinafter enumerated, namely:—
(First) —
Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(Secondly) —Such
an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
2.
CrPC 46: Section 46 of the Criminal Procedure
Code: Arrest how made……in
making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there
be a submission to the custody by word or action…..if such person forcibly
resists the endeavour to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means necessary to effect the arrest…..nothing
in this section gives a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment for life.
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SC recipe for 'fake encounters' is harsh, ranges from probe to death penalty for cops
Updated: November 1, 2016 19:37 IST | Krishnadas Rajagopal
Judgments show the law is heavily, even fatally, loaded against police officers found guilty of 'fake encounters.
As videos of the alleged police encounter of eight SIMI men who broke out of the Bhopal Central Jail continue to raise demands for a judicial probe, a series of Supreme Court judgments show that the law is heavily, even fatally, loaded against police officers found guilty of 'fake encounters'.One of the judgments even recommends death penalty to “trigger-happy” cops and compares them to Nazi war criminals at Nuremberg trials who tried to brush off their culpability on their superior officers.“We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law,” the Supreme Court held in Prakash Kadam versus Ramprasad Vishwanath Gupta on May 13, 2011. “The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this,” Justice Katju, who wrote the judgment, observed. The case concerned policemen used as contract killers. The 2011 judgment became a precedent for a larger Bench of three judges led by then Chief Justice of India R.M. Lodha in the PUCL case, which dealt with 99 encounters committed by the Mumbai police between 1995 and 1997. In the 2014 judgment, the apex court empathised with the police force, saying their job was tough: “We are not oblivious to the fact that police in India have to perform a difficult and delicate task, particularly, when many hardcore criminals, extremists, terrorists, drug peddlers, smugglers who have organised gangs...” But that did not mean the police overlook the rule of law, the Supreme Court cautioned. It listed 16 guidelines to be mandatorily complied by the State in case of police encounter deaths. This included a scientific, well-documented and decisive investigation by an independent agency. The fairness of the probe was open to challenge before a Sessions Court. More importantly, if the Bhopal encounter videos are found to be true, it shows that the officers involved violated the Supreme Court judgment that immediate medical aid should be administered to the suspects shot in an encounter. Further, the Supreme Court laid out that the intelligence tip-off leading to the encounter should be recorded and an FIR registered. The court held that “killings in police encounters require independent investigation” to restore the public's faith in the police force. “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both... This is the requirement of a democracy,” the Supreme Court held in a July 2016 judgment on 1,528 cases of alleged fake encounters involving the Army and the police in Manipur.
http://m.thehindu.com/news/national/sc-recipe-for-fake-encounters-is-harsh-ranges-from-probe-to-death-penalty-for-cops/article9291652.ece
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