On July 13, 2007, a three-judge bench of the High Court in Andhra Pradesh ruled, while disposing of a batch of writ petitions that it is not mandatory for the police to register a case of murder when there is an encounter killing. Human rights groups were understandably up in arms as Naxal activities and encounter deaths are rampant in the state. On February 6, 2009, a five-judge bench of the same court ruled it mandatory for the police to register an FIR whenever an encounter death took place. The HC judgment — whose operative part does not use the term ‘police encounter’, fake or genuine —mandated compulsory registration of an FIR under Section 154 of the Criminal Procedure Code (CrPC) for a murder case wherever a police officer causes death, acting or purporting to act in discharge of official duties or in self-defence. It directs that such a case be investigated like any other offence. Even if the investigating officer’s final report under Section 173, CrPC, concludes that no case is made out, the magistrate is to critically examine the evidence and take cognizance if necessary.
This was hailed as a landmark judgment by human rights organisations claiming it would end the practice of the police closing encounter cases on the plea of self-defence. Law enforcement authorities, however, found the judgment disturbing and through an appeal by the Andhra Pradesh Police Officers’ Association, obtained on March 4, 2009, a stay on the High Court Order from the Supreme Court of India.
Mr. Maxwell Pereira, a former joint commissioner of police, Delhi, in his article, ‘In the Line of Fire’ strongly supported the cause of law enforcement agencies and suggested that ‘police cannot combat violence with their hands tied down’. The reasons put forward by the former joint commissioner are reproduced below:
(a) The law of private defence stands abrogated, and all Indian Penal Code provisions concerning right of self-defence become obsolete and nullified.
(b) Registration of FIRs against police officers is mandatory for death caused even during discharge of official duties, including encounters.
(c) Police officers involved in thwarting the 2001 attack on Parliament and all National Security Guard (NSG) commandos who killed terrorists involved in the 26/11 Mumbai attacks could now face murder trials — as also other police officers and army and navy personnel including the NSG chief, Mumbai police commissioner and army area commander who extended protection or guided them during the operation. Perhaps the entire home ministry, state and central, and all police chiefs can also figure as accessories to a large criminal conspiracy and face the same murder trial as conspirators.
(d) This ruling could apply to other parts of India via other court judgments.
(e) There could be confusion among field formations handling tough situations.
(f) It would be prudent for state police forces to disarm personnel, withdrawing all arms and ammunition considered a must in their operations.
(g) It could lead central forces like the CRPF to request the Centre against deployment for internal security duties in states faced with violence, riots and insurgency, and/or anti- terrorist duties or situations warranting use of firearms.
(h) Because this judgment is to be implemented retrospectively, murder cases could even be registered for past police actions resulting in death. That means the prospect of cases being slapped on some of us retired policemen who supervised officers in encounter cases at some stage or the other. Further, the next time a terrorist fires at a police officer, it would be advisable for the latter to either get killed or run from the scene and face charges of cowardice and dereliction of duty. Else, he would face a murder case for killing the terrorist.
(j) The police now feel stifled to effectively perform their statutory duties and assigned tasks, as forces in armed combat cannot function with the prospect of a murder charge hovering over them thanks to impractical or unrealistic judicial pronouncements. The morale for those facing bullets is hit. Courtroom logic does not cut ice for the underpaid, overworked jawan risking life and livelihood for lofty ideals. He cannot perform if he is not guaranteed security from prosecution for genuine exchanges of fire.
When faced with the task of combating violence, be it from the terrorists, Naxals or criminal gangs, the job of the security forces is an unenviable one. It is but natural that no soldier or policeman would like to take on a hostile target if the subsequent legal process would treat him as a criminal. The five judge bench of the Andhra Pradesh High Court would certainly have considered this aspect. That they still chose to pass an order making it mandatory for the police to register an FIR whenever an encounter death took place thus needs more careful deliberation and introspection.
In the years soon following independence, the Army was called to quell insurgencies that had broken out in Nagaland and in some other parts of the North East. The conduct of army personnel in the initial phases paid scant regard to human rights and in many cases the local junior commanders became a law unto themselves. The situation was however quickly rectified through strict action against defaulters and by instituting proper training for conduct of counter insurgency operations. In one case, when it came to light that a certain group of soldiers escorting a women prisoner had raped her repeatedly through the night, the entire lot was dismissed from service and given sentences of rigorous imprisonment. This happened more than forty years ago but the principle followed then has not been diluted till date. Stray allegations of abuse still surface against the army deployed in low intensity conflict operations in J&K and in the North East, most of which are biased and unfounded. But in all cases, the matter is investigated and if there is truth in the allegations, strict action is taken against the defaulters.
We do not find such things happening in the police forces. There is no in house enquiry that takes place; neither do we hear of any action being taken against guilty police officials. Action is only taken if the case cannot be covered up due to media pressure as in the case of the killing of two Haryana businessman on Barakhamba Road by the then ACP Mr. SS Rathi and his team in a fake encounter case.
The term encounter specialist is one which should be avoided but is unfortunately used with great pride by the police themselves. Statistically, whenever an encounter takes place, the probability of casualties to the security forces is high. When encounters take place by the score and not a single policeman is injured in the shootouts doubts are certainly going to be raised about their genuineness.
We must also ask ourselves why the police is compelled to act both as the prosecutor and the judge? Is it something to do with the lack of investigative skills which results in evidence being thrown out by the courts? Or does it have something to do with the lethargic manner in which courts themselves function? In either case, law enforcement agencies have a lot to answer for.
References given by Maxwell Pereira with respect to the possibility of action being taken against the security forces for taking on the terrorists in the attack on India’s Parliament and in the Mumbai carnage of 26 Nov 2008 is farfetched and seeks to deflect attention from the real issue which is that “All cases need to be properly investigated and brought before a court of law for proper disposal”. The courts too, need to get their act in order for speedy disposal of cases. Both the police and the courts thus have a vital role to play in our legal system and our thrust should be to ensure that our justice system delivers and delivers in time. Fake encounters are NOT the solution.
The Supreme Court of India has imposed a stay on the ruling of the five bench court of Andhra Pradesh. While the matter will be debated upon by our legal luminaries, the time has come for our police forces to act proactively against their own people who break the law and to institute measures to see that the criminal justice system is made effective.
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