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Chairperson's letter to all Chief Ministers
regarding 'fake encounters'
by police alongwith its enclosure
National Human Rights Commission,
ANNUAL REPORT, 1996-97
Annexure-6
March 29, 1997
Dear Chief Minister,
The Commission has been
receiving complaints from the members of the general public and from
the non-governmental organisations that instances of fake encounters
by the police are on the increase and that police kill persons instead
of subjecting them to due process of law if offences are alleged against
them. No investigation whatsoever is made as to who caused these unnatural
deaths and as to whether the deceased had committed any offences.
2. Complaint Nos.
234 (1 to 6)/93-94 brought before the Commission by the Andhra Pradesh
Civil Liberties Committee (APCLC), referred to one such instance. It
was stated in the complaint that the police had shot and killed some
persons alleging that they were members of the outlawed People's War
Group who attempted to kill the police party that was attempting to
arrest them. The case of the APCLC, on the other hand, was that these
are cases of unjustified and unprovoked murders in what they describe
as 'fake encounters'.
3. The practice
obtaining in Andhra Pradesh, as perhaps elsewhere also, is that when
an encounter death takes place, the leader of the police party engaged
in the encounter furnishes information to the Police Station about the
encounter and the persons that died. The stand taken by the police in
all these cases brought by the APCLC was that the deceased persons,
on sighting the police, opened fire at them with a view to killing them
and were, therefore, guilty of the offence of attempt to murder under
Section 307 IPC. The police justified their firing and killing as done
in exercise of their right of self-defence. This information was recorded
in the Police Station describing the persons killed by the bullets fired
by the police as accused and FIRs were drawn up accordingly. Without
any more investigation, the cases were closed as having abated, in view
of the death of accused. No attempt whatsoever was made to ascertain
if the police officers who fired the bullets that resulted in the killings,
were justified in law to doing so, and if otherwise whether and if so
what offences were committed by them.
4. Under our laws
the police have not been conferred any right to take away the life of
another person. If, by his act, the policeman kills a person, he commits
the offence of culpable homicide whether amounting to the offence of
murder or not unless it is proved that such killing was not an offence
under the law. Under the scheme of criminal law prevailing in India,
it would not be an offence if death is caused in the exercise of right
of private defence. Another provision under which the police officer
can justify the causing of death of another person, is Section 46 of
the Criminal Procedure Code. This provision authorises the police to
use force, extending upto the causing of death, as may be necessary
to arrest the person accused of an offence punishable with death or
imprisonment for life. It is, therefore, clear that when death is caused
in an encounter, and if it is not justified as having been caused in
exercise of the legitimate right of private defence, or in proper exercise
of the power of arrest under Section 46 of the Cr. P.C., the police
officer causing the death in the encounter in a particular case was
justified as falling under any one of the two conditions, can only be
ascertained by proper investigation and not otherwise.
5. The validity
of the above procedure followed by the police in Andhra Pradesh was
challenged before the Commission. After hearing all the parties and
examining the relevant statutory provisions in the context of the obligation
of the State to conform to Article 21 of the Constitution, the Commission,
by its order dated 5.11.1996, found that the procedure followed in Andhra
Pradesh was wrong and the Commission laid down and indicated the correct
procedure to be followed in all such case. A copy of the order of the
Commission furnishing the reasons and the correct procedure to be followed
is enclosed. These recommendations have been accepted by the Andhra
Pradesh Government.
6. As the decision
of the Commission bears on important issues of Human Rights which arise
frequently in other parts of the country as well, the Commission decided
to recommend the correct procedure to be followed in this behalf to
all the States. The procedure, briefly stated, is as follows:
A.
When the police officer in charge of a Police Station receives
information about the deaths in an encounter between the Police party
and others, he shall enter the information in the appropriate register.
B.
The information as received shall be regarded as sufficient to
suspect the commission of a cognizable offence and immediate steps
should be taken to investigate the facts and circumstances leading
to the death to ascertain what, if any, offence was committed and
by whom.
C.
As the police officers belonging to the same Police Station are
the 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.
D.
Question of granting of compensation to the dependents of the deceased
may be considered in cases ending in conviction, if police officers
are prosecuted on the basis of the results of the investigation.
7. May I request you kindly
to issue directions, through the Director General of Police, to all
the Police Stations in your State of follow the procedure as indicated
above in regard to all cases where the death is caused in police encounters
and similar situations?
With regards,
Yours sincerely,
(M.N. Vekatachalaiah
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