In the recent case in Hyderabad where the people accused of gang rape were all killed in a police encounter, mixed reaction came from the general public with some people justifying the encounter saying that justice was ultimately served through this process while those who oppose the encounter question the legality of the killings and contend that the police has taken justice into their own hands by doing this act. Whenever an encounter killing or extrajudicial killing takes place, mixed reactions are seen from the public as well as on the social media platforms. Encounter killing can be described as killings wherein the police encounter the accused or the convicts generally in self-defence. Though the concept of encounter killings was devised for self-defence, the general public, as well as various non-governmental organisations, complain about the increasing fake encounters by the police. Many a time, the police kill the convicts or the people accused of a crime and by doing so they take law into their own hands. They do not follow the due process of law which states the punishment for these criminals.
Supreme Court’s Guidelines for investigation of encounter killings
The National Human Rights Commission (NHRC) and the Supreme Court emphasises the need for a proper procedure which should be followed for the investigation of encounter killings so that justice prevails in the country. In view of this, the Supreme Court has given certain guidelines and requirements which need to be necessarily fulfilled while investigating police encounters. These guidelines were issued in 2014 when the court was dealing with the case of PUCL vs State of Maharashtra[i]where the PUCL questioned the 90 encounter killings in Mumbai by the police. They seek to bring in transparency and ensure that the police do not make fake encounter cases because these acts undermine the very nature of justice.
The sixteen guidelines which are required to be followed are elucidated as follows.
1. Recording the alerts and tip-off
It is the duty of the police to record all the alerts and information of some criminal movements or activities or regarding the commission of the grave offences which is provided to them by their sources in a register. In case of encounter killing, the information about the killing would be recorded in that register.
The register need not include the details of the offences like the details of the suspect, however, an entry has to be made of such tip in the register. If the tip received is relating to some higher authority, there is no need to provide the specific details including the name and location of the suspect.
2. Registration of FIR in case of encounter killings
In case the police use firearms and indulge in encounter killings and this results in the death of the individual, an FIR should be registered to that effect and immediately forwarded to the court under section 157 of the Code of Criminal Procedure (CrPC). The provisions of section 158 of the CrPC will be applied while forwarding FIR to the court. Section 158 defines the procedure which needs to be followed while submitting the report to the court.
3. Investigation of the encounter killings
An independent investigation should be done by the CID or police of any other police station. It is a point to be noted that the police team belonging to the same police station whose officers have indulged in encounter killings cannot investigate into this matter. This is because it may happen that these policemen are a part of the encounter killings. This would become an obstacle in the free flow of the investigation and the fake encounters would not be able to be identified. Hence there is a need for an independent agency or police team to investigate this matter. It should be ensured that the investigation is carried out in the supervision of a senior officer who is above the level of the head of the police team which has indulged in encounter killings.
The police team or the CID, whichever party is taking up this investigation should ensure that they investigate the following matters and get information regarding the same.
- Identity of the victim is the first and foremost thing which should be investigated upon. A coloured photograph of the victim should be taken by the investigating team.
- Next, the team investigating this matter must seek to preserve the evidence which could be presented in a court of law to prove the innocence or guilt of any party. The bloodstains on the floor, the hair, and fibre lying at the scene should all be collected and preserved.
- The investigating authority must seek to identify the witnesses of the encounter killings and get information about these witnesses which includes their complete names, address and contact details. They should also record a statement of the police officers who indulged in the encounter killings and also of these witnesses.
- The investigating authorities must seek to determine the location, the cause and the manner of the encounter killings and seek to find some physical evidence like a video/photograph of the event or a rough sketch of the encounter should be made by keeping in mind the evidence and the statements received. The time of death of the individual in case of an encounter killing must also be looked upon by the investigating authorities.
- The investigating team should look for the fingerprints at the scene of the encounter killings and the fingerprints found must be picked up and sent for chemical analysis. The fingerprints of the convict or the accused who died in the encounter killings must also be taken and sent for chemical analysis.
- A post mortem should be done in a district hospital by two doctors with one of them being the head of the hospital. The post mortem must be captured in a video and this video should be preserved just like the evidentiary material.
- The weapons which are found to be related to the killings must be preserved as it serves as a piece of vital evidence. The weapons can include guns, bullets, cartridge cases, etc.
- Tests for gunshot residue or other detector tests must be performed if they are applicable to a given situation
- The cause of death should be ascertained by the investigating officers. The officers should investigate whether these deaths were homicide or accidental deaths.
4. Magisterial Investigation
A magisterial investigation must take place in case of an encounter killing under section 176 of the CrPC. A report of the investigation must be sent to the judicial magistrate who has the jurisdiction to investigate this matter under section 190 of the CrPC.
5. Informing the NHRC
The National Human Rights Commission (NHRC) or the State Human Rights Commission must be provided with the information of the encounter killing which has taken place immediately. However, the NHRC is not required to involve itself in the investigation of the matter unless and until there is a serious doubt that the investigation is not taking place fairly.
6. Medical Aid to the victim
If the convict or the accused who had become a victim of firing by the policemen has been injured owing to the use of firearms by the police personnel, he/she should immediately be provided with medical help. Also, the statement of the convict/victim will be recorded and duly preserved by the investigating authority.
7. Timely submission of documents in the court
The FIR, sketch, statements, and diary entries relating to the encounter killings must be sent to the court timely.
8. Submission of the report to the court
After the investigating authority has completed the investigation of the encounter killings, a report should be submitted to the concerned court as per the provisions of section 173 of the CrPC. The charge sheet must be submitted by the investigating officers and the trial must be concluded pursuant to the charge sheet submitted to the court.
9. Informing the family members of the victim
If the use of firearms by the policemen had resulted in the death of the victim, the family members of the deceased must be informed without any delay.
10. Submission of the six-monthly report to NHRC
Half-yearly or six-monthly reports must be submitted to the National Human Rights Commission regarding the death caused by the use of firearms by the policemen. The reports should reach the NHRC timely i.e. till the 15th day of January or July as applicable.
11. Action against the guilty policemen
If after the investigation of the case, the evidence clearly shows that the policemen had committed an offence under the IPC by the use of firearms on the victim, necessary action must be taken without any further delay. Disciplinary action should be taken against these officers and they should be suspended.
12. Compensation to the dependants
If it is proved that the police officers had committed an offence under the provisions of IPC, the dependants of the deceased will be given compensation under the provisions of sections 357-A of the CrPC.
13. Surrender of weapons
The investigating officers can take the weapons of the police officers who had indulged in encounter killing or any other material belonging to the police officers in order to perform a forensic or ballistic analysis of the said weapons to investigate more closely on the matter in front of them. However, this act should be in accordance with the rights provided under Article 20 of the Constitution of India.
14. Communication of incidents to the officer’s family members
The incident wherein the police officers had indulged in the encounter killings must be communicated to the family members of these officers and if the family members require any legal services, it should be provided to them.
15. No immediate reward to the police officers
The police officers who had been a part of the encounter killings must not get any instant promotions or Gallantry awards for their deeds soon after the occurrence of the encounter killings. These police officers should be rewarded only after the investigation is completed and their gallantry has been established.
16. Victims family can go to court if the investigation is not done according to the procedure
If the victim’s family thinks that the procedure and investigation was not done fairly or the investigation was not done by an independent body which influenced the result of this investigation, it may register a complaint to the sessions judge, who would then review the procedure and investigation and thereby address the grievances of the family members.
Today, there has been an increase in complaints of fake encounter cases which harms the justice delivery system as the people do not follow the law. The criminals are subjected to killings by policemen using firearms instead of punishing them using the due process of law. To combat this problem and uphold the concept of justice, the Supreme Court had made certain guidelines for investigating the encounter killing cases so that fake encounters can be identified and the people indulging in these acts can be punished with the help of the law. These guidelines were issued in 2014 when the court was dealing with the case of PUCL vs State of Maharashtra where the PUCL questioned the 90 encounter killings in by the police. The guidelines, as mentioned in the article, are devised to ensure transparency in the justice delivery system and to punish wrongdoers for their acts. Therefore, these guidelines must be met and the procedure must be followed to uphold the idea of justice through proper punishments as mentioned in the law.
Endnotes[i] CDJ 2014 SC 831
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