Complaint
Nos. 234(1-6)/1993-94 before NHRC
by
Andhra Pradesh Civil Liberties Committee
National Human Rights Commission,
ANNUAL REPORT, 1996-97
(Annex to Annexure-VI:
Chairperson’s letter to Chief Ministers)
NATIONAL HUMAN RIGHT
COMMISSION
SARDAR PATEL BHAVAN
SANSAD MARG, NEW DELHI
Name of the complainant : A.P.C.L.C.
File Nos. :
234 (1)/93-94/NHRC
234 (2)/93-94/NHRC
234
(3)/93-94/NHRC
234
(5)/93-94/NHRCs
234
(6)/93-94/NHRC
From Naxalbari, a place
in the Northern region of West Bengal, under the initial leadership
of one Kanhu Sanyal, originated the concept of forcible protest against
the social order relating to holding of property and sharing of social
benefits. In course of time, it developed into what came to be known
as Naxallite movement. In due course it spread into parts of Bihar,
Orissa, Andhra Pradesh and bordering districts of Tamil Nadu, Madhya
Pradesh and Maharashtra. Naxallite got divided into different groups––sometimes
known by their faith and at other times going by the names of their
leaders. In Andhra Pradesh, though initially known as Naxallites, they
came to have their identity under the nomenclature of "Peoples
War Group" (PWG) by 1980.
2. It is unnecessary
to deal with various groups of the PWG operating in Andhra Pradesh.
The activities were broadly the same though the mode varied from group
to group and occasion to occasion. At the inception, so far Andhra Pradesh
is concerned, Naxallite activities were confined to the district of
Srikakulam and bordering areas of Orissa and spread into some of the
Telengana districts like Warangal, Karimnagar and Nalgonda.
3. Concentration
of activities has mostly been in rural areas but there have been many
eventful incidents in urban areas too. Hundreds of innocent villagers
and a considerable number of policemen have been done to death by the
PWG men, government property has been targeted and very often set on
fire causing substantial loss to government, both State and Central
and even owners of buildings where public offices were being held in
tenanted premises have suffered on this account. Initially, perhaps,
attacks were concentrated on the richer groups but later people from
the poor classes also did not escape attack, on both person and property.
There have been incidents where the male members have been done to death
and the female folk have been subjected to physical violence including
rape. There was also a case of a man being killed and his head severed
from the body, put into a basket and the widow compelled to go round
the village with that headload. Normal life and social order had been
destroyed/disturbed by such activities and extra legal operations of
Naxallite groups is indisputable. The State Government in a legislation
empowering it to declare an association to be or to have become unlawful
and in exercise of power under Section 3 of this legislation (Andhra
Pradesh Public Security Act, 1992), PWG had been declared to be an unlawful
association for a specific period. There was a short gap when the ban
was not in operation but the ban has now become operative.
4. Since the law
and order situation was disturbed by PWG activities, the police started
adopting initially stiff and gradually stiffer measures to contain their
illegal operations. As PWG people started moving in groups for carrying
out their activities, the police also formed groups for counter attack
and keeping the illegal activities, under check and control. This led
to frequent encounters in which there used to be loss of life and injuries
to persons on both sides. Government re-enforced the police force and
provided matching sophisticated weapons to them when it was found that
some of the members of the PWG were using sophisticated arms and ammunition.
PWG groups soon established access for getting land mines and started
setting them on several rural roads which killed police parties and
destroyed their vehicles. The relationship between the PWG and the police
force, therefore, became bitter and totally inimical.
5. APCLC is a Non-Governmental
Organization operating within the state of Andhra Pradesh with headquarters
at Hyderabad and is affiliated to PUCL at the national level. It filed
a complaint before the Commission on 30th March, 1993 giving
particulars of 285 police encounters which it described as fake ones
organised by the police to eliminate members of the Peoples War Group
or their supporters and sympathisers instead of subjecting them to the
due process of law for punishing the guilty. The complaint was scrutinised
in the Registry and it transpired that several of the incidents had
happened prior to one year before the making of the complaint and therefore,
were beyond the purview of the Commission on account of the special
limitation of one year provided under Section 36(2) of the Protection
of Human Rights Act, 1993. The complainant, therefore, agreed to confine
its complaint to cases within the period of limitation. Ultimately it
wanted the Commission to examine the question of fake police encounter
in six cases of its choice and gave a list of them being:
1. 234 (1)/93-94/NHRC (case
of Kayita Yakaiah)
2. 234 (2)/93-94/NHRC (case
of Chinnarapu Sangaiah)
3. 234 (3)/93-94/NHRC (case
of Varikuppala Shankaraiah)
4. 234 (5)/93-94/NHRC (case
of Badavath Jaitya)
5. 234 (6)/93-94/NHRC (case
of Battu Anjaiah & Peddaboyina Saidulu)
6.
When notice was issued the State
Government denied the plea of fake encounter and sought justification
for its action. The response of the State was notified to APCLC and
it wanted opportunity of leading evidence to substantiate/establish
its stand. The Commission, therefore, agreed to have a sitting at Hyderabad
to receive evidence and the State Government on being notified made
arrangements for such a sitting from August 21 to 24, 1995.
7. Evidence in five
of the cases was recorded from the side of the complainants. In some
of these cases, the State led evidence; some documents were exhibited.
No evidence was led in case no. 234 (4)/93-94/NHRC on the plea that
the complainant and his witnesses had been detained by the police at
some unknown place. It was agreed that further hearing would take place
at Delhi with opportunity to the complainant to produce his witnesses
in the case where no evidence was led at Hyderabad. On the 21st
of September, 1995, the Commission recorded the following proceeding:
"Six cases were
picked up by APCLC for evidence to be led and enquiry undertaken by
the Commission into what is alleged as police encounter deaths in
Andhra Pradesh. These six cases were set down for receiving evidences
at Hyderabad from August 21 to August 24, 1995. Evidence in five cases
was recorded and witnesses did not turn up in one case. We had given
opportunity to the parties to lead evidence if they so liked at Delhi.
Today counsel for APCLC has reported that they do not want to lead
evidence and press for that case. The enquiry is, therefore, confined
to the remaining five cases where evidence had already recorded…."
Pursuant to the aforesaid
direction, further hearings were undertaken. Mr. Dipankar Gupta, Learned
Solicitor General appeared on the request of the Commission to assist
it. Advocate General of Andhra Pradesh on one occasion and the Additional
Advocate General on the other argued for Andhra Pradesh and Mr. Sitapati
placed the case of the Andhra Pradesh police. Mr. Kannibaran appeared
on behalf of the complainant.
8. After we had
closed the matter, the judgement of a division bench of the Andhra Pradesh
High Court in Writ Petition No.16868/95 dated 14.8.1995 was produced
before us in support of the stand of the petitioner. Commission’s Registry
reported that a Special Leave Petition had been filed against the decision
and the Supreme Court ultimately has granted leave and directed the
stay of operation of the judgement.
9. Since the judgement
of the High Court had close bearing on the point in issue, we waited
for the decision of the apex Court but as it appears it may take some
more time and, therefore, we proceed to formulate our recommendations
without waiting any longer.
10. We would like
to indicate in brief the facts of the five cases pressed for consideration
before us.
I. Case No.234 (1)/93-94
The complainant in this
case is Kayita Lachchaiah. Deceased Kayita Yakaiah was neither a member
of the Naxallite groups nor had he ever participated in Naxallite activities.
There was a pending criminal case against him in a case relating to
the burning of RTC bus. He was involved along with 26 others in that
case. He was regularly appearing in court in this case. The family had
one acre of wet land and about the same extent of dry land which the
deceased was cultivating and he was also engaged in lorry loading work
with 14 labourers employed under him.
On 25.5.1993, after loading
four lorries he had came to the village to take bidi leaves and after
finishing that job he returned home around 10 PM and retired by 11 PM.
By 1 AM, 60 to 70 policemen came to the village and when they reached
his house, all the members of the family were asleep. Some 30 policemen
entered into the house. They lighted a powerful torch which made PW
3 wake up. When he shouted, the other members of the family were aroused
from sleep. They identified Kumaraswamy, Sub Inspect of Police who was
then trying to take out Yakaiah. When the members of the family prevented
his being taken away, force was applied by the police. On 26.5.1993
and the day following, PWs 1 and 3 accompanied by the Village Surpanch
(PWG) and some others went to the neighbouring police stations to ascertain
the whereabouts of the deceased. He was alleged to have been killed
at 9 AM on 26.5.1993 within Eturnagaram Police Station limits. PWs 1
and 2, who are respectively father and mother of the deceased, were
informed about the killing of the deceased in the hands of the police.
The police version was that the deceased was an un-identified naxallite
notwithstanding the fact that he was arrested by the police in the pending
case and had been appearing in the court on the fixed dates. Madhusudan,
Sub Inspector of Police of Mangapet Police Station (RW 1), who led the
raiding party which participated in the alleged encounter accepted in
cross-examination that many of the Naxallites he confronted were wearing
olive green uniform but the deceased was not in such uniform. The inquest
report shows that the deceased was wearing a lungi and a shirt. PW 4,
sister of the deceased, stated to the Commission that police had made
serious attempts to keep the witnesses away from the Commission and
to give effect to their designs, the window of the deceased and PW 4
herself had been forcibly taken by the police to the village of the
deceased about 140 kms from their own place. The police witnesses accepted
the position that there were 24 policemen and 12 naxallites involved
in the alleged encounter. The firing went on for half an hour in broad
day light, and the distance between the two parties was only 50 yards.
Yet no policeman sustained any injury while all the alleged naxallites
were killed. The deceased, as would appear from the post-mortem report
(Exhibit R 7) had three fractured bones; obviously these could not have
been caused by gun fire and could fit into the position that the deceased
had sustained injuries on account of torture and was later killed. It
has been contended that this position is also suggestive of the fact
that the deceased had been taken to the police station, assaulted there
and later was shot dead. The bullet injuries are on the upper part of
the body – the chest, shoulder, etc – which is indicative of the fact
that the intention was to kill.
Counsel for the complainant
contended that the oral and documentary evidence on record lead to the
following conclusions:
I. The deceased was not
a naxallite but a peasant and a lorry loading worker by occupation.
II.
There was only one criminal case
of arson against him pending on the date of occurrence.
III.
He had been taken into police custody
from his house in the presence of many wit][nesses and had been killed
in the alleged encounter.
IV. The Magisterial enquiry
was delayed for a long period and was completed only when the Commission
decided to include this case within the ambit of enquiry.
V. Serious attempt was
made by the police to keep the witnesses away from the Commission
We have read through the
evidence and prima facie the conclusions suggested above, in our opinion,
are borne out by the evidence.
II.
Case No.234 (2)/93-94
11. Deceased Sangaiah was a resident
of village Variguntham in Medak District of Andhra Pradesh and was an
activist of CPI (ML). On 25th May, 1993, he went to his own
agricultural lands, took the meal brought there by his wife and he again
went to Variguntham, sent word to his wife and they met in the field.
According to the complainant, the deceased was taken away by the police
from the place of work and was shot dead. The version of the incident
by the respondent was that while combing the local forest area they
found a group of extremists and an encounter followed at about 5 AM
and in the exchange of fire the deceased died.
12. The complainant
examined four witnesses to support the version and the State examined
one witness. The complainant’s witnesses stated that the deceased was
shot dead in the alleged encounter. Mr. Sitapati cross-examined the
complaint’s witness at length. The evidence of the witness, which has
been stated to be natural, has been asked to be brushed aside. RW-1
is the then Inspector of Police, Medak Circle. From his cross-examination
it appears that he was also the Investigating Officer of the case registered
on his report. It is the admitted position that while on complainant’s
side there has been death, on the side of the police there was not even
a single abrasion caused by the alleged exchange of fire. The autopsy
report indicates three gun shot injuries and an abrasion on the person
of the deceased. On a close scrutiny of the evidence, prima facie it
appears that the evidence of picking up the deceased from the rural
agricultural field has not been shaken. The complaint himself assumed
the role of Investigating Officer with a view to hampering an adequate
investigation
III. Case
No.234 (3)/93-94
13. Varikuppala Shankaraiah,
was not involved in any naxallite activity nor had he been arrested
or even mentioned in any police record. Three years before his death,
he shifted from his paternal to the maternal village Inolu in Achampet
Mandal with a view to helping his Uncle in the construction of a school
building. After the work was over, he stayed on as a mason in the village
along with his wife. The deceased was constructing the house of one
Madavath Madhya by June, 1993. In the morning of 5.6.1993, the deceased
and his wife, PW 1, left the village to reach the hamlet where they
had undertaken work. Around 6 PM, Shantamma came back alone to Inolu
and told PW 1 that the deceased had gone to Achampet government hospital
to get the treatment of his leg injury. On his return by bus, near the
check post outside Achampet, four policemen in plain clothes forced
him to get down from the bus. On 6.6.1993 Shantamma and PW 1 made enquiries
at Achampet and Amrabad Police Stations, but the police told them that
they knew nothing about the arrest of the deceased. The leader of the
police party, who participated in the alleged encounter resulting in
the death, sent information to the Amrabad Police Station at 7 AM on
6.6.1993 about the occurrence in which the deceased had been killed.
There is evidence to show that the wife and the relatives were not informed
about the incident and they came to know about it through newspaper
and when they went to see the body, they saw several injuries apart
from those caused by gun shots. The post-mortem report referred to three
contusions, one of which was close to the eye. The post-mortem doctor,
stated that these injuries could have been caused by a blunt weapon.
A Magisterial enquiry had been held where PWs 5, 6 and 10 before us
had given evidence. The Magisterial Enquiry had not been completed for
more than 2 years. The Inspector of Police, RW-1, who led the raiding
party, himself became the Investigating Officer. He admitted in cross-examination
that the deceased was not wanted in any criminal case by the police.
The deceased was wearing a white pant and a pink coloured shirt and
not the olive green uniform usually worn by the PWG activists. Pressure
had been put on some of the witnesses examined by us in the left over
Magisterial enquiry. The evidence of RW 1 clearly indicates that there
were 17 policemen and 10 to 12 naxallites in the alleged encounter.
The exchange of fire is said to have taken place for half an hour. The
distance between the police and the naxallites was about 50 yards and
yet there was no injury to the policemen.
IV.
Case No.234 (5)/93-94
14. One Badavath Jaitya,
son of PW-1 is the deceased, Badavath Jagni, wife of the deceased is
PW-2. The deceased is claimed not to be naxallite but he had been implicated
in cases connected with nxallite activities because local landlords
had given false information to the police. He had surrendered to the
police and Government had given him 12 bicycles to run a cycle taxi
shop but he sold the bicycles as he could not run it. His family land
was sold and he was making arrangements with the money thus obtained
to go to the Gulf countries. From 1989 onwards, the deceased was busy
in his efforts for going over to the Gulf countries. He was in Bombay
for most of the time and had come to the village only 5 to 6 times in
those four years. He was away and did not appear in the pending cases;
so non-bailable warrants were taken out. On a joint application of his
and his wife, Government had sanctioned a house loan. The deceased had,
therefore, come form Bombay to complete the transaction preceding the
obtaining of the loan. He was killed within 2 days of his return on
2nd October, 1993. The deceased was taken by four people,
who had come on two scooters, to one side of the road and he was directly
shot dead. One of these four men went in a vehicle and came back with
many policemen in a jeep and a van. When the deceased was forcibly taken,
no one mentioned that there was a warrant against him to be executed.
The records produced by the police before the Commission show that the
deceased had surrendered to the police in response to an appeal made
by the State Chief Minister to naxallites on 9th August 1989.
While he was in jail, he was shown as involved in three cases in all.
The Investigating Officer, RW-2, admitted before the Commission that
when he proceeded to enquire into the case, no local man supported the
police stand.
V. Case
No. 234 (6)/93-94
15. On November
1, 1993, Anjaiah belonging to village Kambalapalli of Warangal District
along with Saidulu was going on a motor cycle. By the time they reached
the outskirts of Mahabubabad it was around 9 PM. The police party led
by the Deputy Superintendent of Police Akula Ramakrishna killed the
two persons on the motor cycle in a fake encounter. The police came
forward with the story that they received information through VHF set
that a police picket at Matpally in Karimnagar district had been blasted
by two motorcycle borne extremists and that the Deputy Superintendent
of Police, Mahabubabad alerted all the police stations under his jurisdiction
and he led a police party to check the vehicular traffic on the outskirts
of Mahabubabad and around 9.30 AM they tried to stop a motor cycle coming
from Nellikiduru road and the driver and the pillion rider in an attempt
to evade the police fell in a ditch, and the pillion rider took position
behind the bushes and fired three rounds and in self defence the police
party fired 38 rounds and that the motor cycle driver and pillion rider
died of gun-shot injuries. PWs 1 and 3 are eye witnesses to the occurrence.
Anjaiah was a sympathiser of the CPI (ML) and he was acting as an elderly
person in the area, conducting arbitration of disputes and was brining
public issues to the notice of the authorities concerned for solution.
Around 8 PM on November 1, 1993, while he was coming on foot from B.T.
road he saw a jeep coming from Mahabubabad with head lights on and a
motor-cycle coming from opposite direction. He saw the Head-Constable
and Sub-Inspector of Police getting down from the jeep. They caught
hold of the motor cycle driver as also the pillion rider and within
5 minutes killed them. The gun shot injuries on Saidulu, one of the
deceased, clearly indicate that the shot entered from his backside which
fits into the case of the complainant. The distance between the place
where the blast had taken place and the place of the incident would
be around 300 kms. It is indeed very difficult to cover the same in
two and a half hours by motor cycle.
16. In order to
appreciate the material placed before the Commission and reach the conclusion
as to whether there was a true encounter or a fake one, we shall have
to assess the evidence. Broad features have to be looked into and on
the analysis of the material before the Commission, it has to be found
out whether the stand of the police is correct or not. Mr. Sitapati
has taken the stand that the allegation of encounter was true and there
was no scope to hold that they were fake ones. We have already pointed
out the several features relevant to the issue while dealing with the
facts of each case. Prima facie the version of the complainant appears
to be nearer truth but we would not like to come to any definite conclusion
as the cases have got to be investigated and truth has to be ascertained.
17. Reliance has
been placed on Section 46 of the Code of Criminal Procedure and in support
of the contention that the persons who have been killed were involved
in criminal cases, warrants for arrest had been issued and the police
had the right to use force, which could extend upto causing of death
as the deceased were involved in offences punishable with death or with
imprisonment for life. It is also the claim of the police that in each
of the encounters, they had the right to private defence as the members
of the naxallite groups (PWG) were the aggressors and unless the police
had defended themselves, they would have been killed by the members
of the unlawful association.
18. As has already
been mentioned, one of the deceased persons was not at all connected
with any criminal case. The evidence on record does not show, in each
of other four cases, an attempt by the police to arrest the deceased
persons and their offer of resistance. Sub Section (3) of Section 46
of Cr. P.C. provides that the causing of death could be conditioned
upon the involvement of the accused in an offence punishable with death
or with imprisonment for life and offer of resistance when attempt is
made to arrest him.
19. Article 21 of
the Constitution of India provides that no person shall be deprived
of his life except according to the procedure established by law. Article
6 of the International Covenant on Civil and Political Rights provides:
1. "Every
human being has the inherent right of life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life."
"Right of life"
is the most important one so far as any person is concerned because
all other rights would be dependent upon the subsistence of life. The
Constitution and the Covenant have, therefore, guaranteed life in emphatic
terms and the only limitation is that it could be taken away by the
procedure established by law. It is not necessary to support this conclusion
by any authority and it appears to us as too elementary. What is next
to be examined is, is there a procedure which authorises taking away
of life in the facts of these cases.
20. Mr. Sitapati
has clearly accepted the position that the practice obtaining in Andhra
Pradesh is that when an encounter death takes place, an entry is made
in the police station of the fact and FIR is drawn up showing the deceased
as accused and closing the case as having abated on account of death
of the accused person. No investigation is ordinarily undertaken. In
many of these cases, the police has claimed the right of private defence
and since the investigation is made very often by the officer at the
police station who has himself led the alleged encounter, he utilises
his own knowledge to close the matter.
21. This practice
of showing the deceased person as accused and closing the case as abated
is seriously challenged by Mr. Kannibaran, as being contrary to legal
procedure. We had enquired from learned Solicitor General as also from
the Advocate General of Andhra Pradesh as to whether this was a tenable
practice in law and whether this could stand the test of criminal jurisprudence.
Both of them found it difficult to support this as a legal practice.
Even conceding that the police stand is correct––that there had been
a real encounter––the dead lot cannot be shown as the accused because
in most of these cases they prima facie did not do anything which would
justify their being arrayed as accused persons particularly in the process
of killing subject, of course, to the acceptance of the plea of resistance
to arrest. As we have already pointed out while dealing with the evidence,
in none of these encounters did the police receive any injury, while
in every case one or more persons from the other side died. The scheme
of the criminal law prevailing in India is that a person who claims
the right of private defence as a cover against prosecution has to plead
and establish the same. Chapter IV of the Indian Penal Code deals with
"General Exceptions" and makes no distinction between an ordinary
person and a policemen in this regard excepting in the matter of the
plea of performance of duty. In case a situation as contemplated in
these Sections arises, police is certainly entitled to take to arms
and even kill the attackers without suffering any punishment for the
killing.
22. Right of private
defence, if raised, has to be established. Criminal law contemplates
that entitlement to protection under an exception would be available
if the conditions are satisfied. It is difficult to apply the golden
scale when the battle for life is on. The punishment prescribed is a
lesser one than in normal situation. The right of private defence has
to be raised and established at the trial and not during investigation.
Section 105 of the Evidence Act clearly prescribes:
"When a person is
accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the General Exceptions in the Indian
Penal Code (45 of 1860) or within any special exception or proviso
contained in any other part of the same Code, or in any law defining
the offence, is upon him, and the Court shall presume the absence
of such circumstances."
23. Mr. Sitapati
for the police was very emphatic that the procedure which is being followed
is just and proper and has the authority of being in vogue for over
a century. He also emphasised before us in unequivocal terms that if
it be otherwise, it would be difficult for the police to function in
the areas where the normal law and order is not operating and groups
of unlawful associations have taken the law into their own hands and
have been disturbing peace. There may be force in his submission that
taking a contrary view would be inconvenient to the police. What is
for consideration is not inconvenience but the legality of the action
within the frame of Article 21. We do not think there is scope for acceptance
of the stand of Mr. Sitapati.
24. We would, however,
like to mention about the human rights of the innocent citizens and
the policemen who fall prey to the illegal activities of the PWG men.
Human rights are universal and every one is entitled to them. In course
of arguments we had suggested and we repeat that the PWG should stop
their extra-legal activities and show respect for the lives of others
and bring themselves into the fold of law and confirm to the conduct
prescribed.
25. We are conscious
of the position that the State of Andhra Pradesh is undergoing severe
strain and turmoil on account of the illegal activities of the PWG.
Apart from the attacks which police suffer now and then in the hands
of the PWG people, the common man, both in urban and non-urban areas
is badly affected. He runs the risk of his life; there is no protection
to his property and peace and tranquility within the society are totally
in the hands of groups of PWG. The hardship of the State, in our view,
cannot take away or abridge the guarantee under Article 21 of the Constitution
or Article 6 of the Covenant and while enforcing the guarantee and working
in favour of its sustenance in full form, we cannot invoke the doctrine
of necessity and apply it as a cover against the fundamental right.
26. The question
for consideration is as to whether the procedure followed as above has
the sanction of law. Section 154 Cr. P.C. provides that if information
is given orally relating to the commission of a cognizable offence,
the officer-in-charge of the Police Station shall reduce it into writing.
Section 156 speaks of power of Police officers to investigate cognizable
cases. Section 157 provides that if a cognizable offence is suspected
from the information received or from other sources, the officer-in-charge
of the Police Station shall forthwith send a report of the same to the
Magistrate empowered to take cognizance of such offence and he shall
proceed to take up investigation of the case. Section 173 requires the
investigation to be completed with expedition and as soon as it is completed
to forward the investigation report to the concerned Magistrate. The
investigation must be directed to find out if and what offence is committed
and as to who are the offenders. If, upon completion of the investigation,
it appears to the officer-in-charge of the Police Station that there
is no sufficient evidence or reasonable ground, he may decide to release
the suspected accused, if in custody, on his executing a bond. If, however,
it appears to him that there is sufficient evidence or reasonable ground
to place the accused on trial, he has to take necessary steps as provided
in Section 170 of the Code. In either case, on completion of the investigation,
he had to submit a report to the Magistrate. The report of investigation
in such cases should be examined thoroughly by the Magistrate so that
complete application of the judicial mind is available to ensure just
investigation and upright conclusion. The Magistrate, on consideration
of the report, many either accept the same or disagree with the conclusions
and call for further investigation as provided in Section 173 (8) of
the Code. If the Magistrate accepts the report, he has take cognizance
of the offence under Section 190 of the Code.
27. Section 157(1)
requires the officer-in-charge of the police station to apply his mind
to the information received and the surrounding circumstances to find
out whether there is reason to suspect the commission of a cognizable
offence which he is empowered under Section 156 to investigate. He cannot
mechanically accept the information received. When the information received
indicates that death was caused in the encounter as a result of the
firing by the Police, prima facie the ingredients of Section 299 IPC
which defines culpable homicides, are satisfied. This is sufficient
to suspect that an offence of culpable homicide has been committed.
Thus, Section 157 of the Code is attracted calling for investigation.
Any plea like causing of the death in the case does not constitute an
offence either because it was done in exercise of the right of private
defence or in exercise of the powers of arrest conferred by Section
46 of the Code, can be accepted only after investigating into the facts
and circumstances. Section 100 of IPC provides that right of private
defence of the body extends to the voluntary causing of death if occasion
for exercise of the right falls in any one of the six categories enumerated
in this Section. Whether the case falls under any one of the six categories,
can only be ascertained by proper investigation. Similarly, when Section
46 (3) of the Code is invoked, it has to be ascertained as to whether
the death of the deceased occurred when he forcibly resisted the endeavour
of the Police to arrest him and whether the deceased was accused of
an offence punishable with death or imprisonment for life. Without proper
investigation, the Police officer cannot say that the causing of the
death in the encounter was not an offence either because it was done
in exercise of the right of private defence or was done in legitimate
exercise of the power conferred by Sec. 46 of the Code. One of the deceased
persons in these cases, was not at all connected with any criminal case.
Hence, Section 46 could not be invoked in that case. Section 174 of
the code says that when the Police officer in charge of the Police Station
receives information that a person has been killed by another, he shall
make an investigation about the apparent cause of death and submit a
report to the District or Sub-Divisional Magistrate and also to take
steps to arrange for the autopsy of the body. These provisions indicate
that unnatural death has to be taken note of seriously by the Police
and required them to find out by investigation the real cause of death.
The responsibility is greater when it is the Police that are the cause
of unnatural death. There is also a general feeling that most of the
encounters are fake. It is, therefore, in public interest that the conduct
of the Police involved is subjected to proper scrutiny by investigation.
To avoid the possibility of bias, the investigation in such cases should
be entrusted to an independent agency like the State CID by a general
order of the Government. We are, therefore, of the opinion that when
information is received in the Police Station about the causing of the
death by the Police officer in an encounter, the officer-in-charge of
the Police Station, must, after recording that information, draw the
inference that there is reason to suspect the commission of an offence
and proceed to investigate the same as required by Section 157 of the
Code. If such a procedure is not required to be followed, it would give
licence to the Police to kill with impunity any citizen in the name
of an encounter by just stating that he acted in ‘the right of private
defence’ or under
Section 46 of the Code. A procedure which brings about such unjust,
unfair and unreasonable consequences cannot be countenanced as being
within Article 21 of the Constitution.
28. The stand of
the Police in these cases is that in the course of the encounters that
took place, several persons alleged to belonging to the PWG, died as
a result of the firing on the side of the police without even a simple
injury being suffered by the police. On the basis of the information
furnished by the leader of the Police party that was engaged in the
encounter, entries were made in the respective Police Stations stating
that the deceased persons made an attempt to kill the Police and were,
therefore, guilty of the offences of attempt to murder under Section
307 IPC. On that basis, they were described as accused and FIRs were
drawn up by the Police. The cases were closed without investigation
on the ground that they have abated on account of the death of the accused
persons. No attempt whatsoever was made to ascertain as to the Police
Officers responsible for the respective killings and as to whether any
offences were committed by any of them punishable in law. The stand
of the Police before us is that they have not committed any offence
as they acted in exercise of the right of private defence. In some of
the cases, the killing is sought to be justified by invoking Section
46(3) of the Cr. P.C. It is on this assumption that information was
recorded in the Police Station. The information recorded in the Police
Station in many of these cases is as furnished by the very Police officer
who led the alleged encounter. Attention was confined to the conduct
of the deceased and not to that of the Police who had caused the deaths
when the information was received at the Police Station. Causing of
death by the Police firing in the alleged encounter has been assumed
to be justified either in exercise of the right of private defence,
or in course of exercise of power of arrest under Section 46. No attempt
was made to investigate the circumstances under which the police opened
fire, causing death to several persons. The procedure followed in this
case is not sanctioned by law. It is even opposed to the procedure prescribed
by the Code. The procedure is unjust, unfair and unreasonable and, therefore,
violative of the fundamental right guaranteed by Article 21 of the Constitution.
29. For the reasons
stated above, we make the following recommendations:
i)
As the information furnished to the Police
officers in charge of the respective Police Stations in each of these
cases is sufficient to suspect the commission of a cognizable offence,
immediate steps be taken to investigate the facts and circumstances
leading to the death of the PWGs, in the light of the elucidation
made in this order.
ii) As the Police themselves in
the respective cases are involved in perpetrating encounter, it would
be appropriate that the cases are made over to some other investigation
agency – preferably the State CID. As a lot of time has already been
lost, we recommend that the investigation be completed within four
months from now. If the investigation results in prosecution, steps
for speedy trial be taken. We hope compensation would be awarded in
cases ending in conviction and sentence.
iii)
Deceased Shankariah (Case No. 234 (3)/93-94/NHRC) admittedly was not
involved in any pending criminal case and ending his life through
the process of alleged encounter was totally unjustified. So far as
he is concerned, we are of the view––learned Advocate General conceded
that our view was right––that the State Government should immediately
come forward to compensate his window by payment of compensation of
Rs. 1 lakh as done in similar cases and the police involved in killing
him should be subjected to investigation and trial depending upon
the result of investigation.
iv) We
recommend to the State Police to change their practice and sensitise
everyone in the State to keep the legal position in view and modulate
action accordingly. In case the practice continues notwithstanding
what we have now said, the quantum of compensation has to be increased
in future and stricter view of the situation has to be taken. Being
aware of the fact that this practice has been in vogue for years and
the people have remained oblivious of the situation, we are not contemplating
the award of any interim compensation at this stage.
30. Our recommendation
be forwarded to the State Government without delay for acceptance and
30 days’ time is given for intimation of response.
31. We are thankful
to learned Solicitor General for responding to our request to assist
the Commission. We place on record our appreciation for the assistance
given by counsel for the parties.
Sd/-
(Ranganath
Misra)
Chairperson
Sd/-
(M.
Fathima Beevi)
Member
Sd/-
(V.S.
Malimath)
Member
November 5, 1996
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