IX. COMPLAINTS BEFORE THE COMMISSION

National Human Rights Commisiion, ANNUAL REPORT, 1996-97

(C) ILLUSTRATIVE CASES

9.11 As in previous years, this report also includes illustrative cases identified by the Commission which reflect the nature and content of grievances of human rights violations brought to its notice. They cover custodial death and rape, violence against women, illegal detention, wrongful implication, failure of the police to take appropriate action to protect the victim’s interest, conditions relating to jails or violence in areas of insurgency and terrorism.

9.12 The gist of selected illustrative cases follows below:

(i) Deaths in Alleged "Fake Encounters" with Police in Andhra Pradesh

These cases arose out of complaints made by the Andhra Pradesh Civil Liberties Committee (APCLC), a non-governmental organization, which alleged that the Andhra Pradesh police had staged "fake encounters" in order to eliminate members of the People’s War Group (PWG), their supporters and sympathizers. The APCLC, in their complaint, gave particulars of such encounters which they described as fake, and stated that, instead of following the due process of law in respect of the PWG, the police was resorting to "executing elimination". In some cases, the deceased were found to be only remotely connected with the People’s War Group and in some others the deceased were not involved in any naxalite activity nor had they been arrested or even mentioned in any police record.

The claim of the police in each of the cases was that the persons killed had committed several offences and were accused in criminal cases. Warrants for arrest, it was said, were issued against them and they were evading arrest and that the police had the right to use force for effecting arrest which could extend upto causing of death of the accused if they were involved in offences punishable with death or with imprisonment for life. The police also claimed that the deceased were the aggressors and would have killed the police-personnel had the police not fired at them in exercise of their right of self-defence. They thus sought to justify their killing on the ground that the deceased themselves were guilty of attempts to commit the murder of police personnel.

The Commission noted that the evidence on record did not show in any of the cases that any prior attempt was made by the police to arrest the deceased persons. In none of these "encounters", did police personnel receive any injury while one or more persons from the other side had died. The Commission further observed that the criminal law clearly prescribed that a person who claimed the right of private defence as a cover against prosecution had to establish the same.

Entries were made in the respective police stations to the effect that the deceased made attempts to kill the police and were, therefore, guilty of the offence of attempt to murder under Section 307 of Indian Penal Code. On that basis, they were described as "accused" and FIRs were drawn up accordingly. The cases were, however, closed without investigation on the ground that they had abated on account of the death of the accused persons. No attempt whatsoever was made to ascertain as to who were the police officers that fired the bullets that caused the respective deaths and as to whether their killing was justified in law. Attention was confined to the conduct of the deceased and not to that of the police who had caused the deaths. No attempt was made to investigate the circumstances under which the police opened fire causing death of several persons. As this appeared to be the pattern of the procedure following by the police, the Commission felt it necessary to conclude that the procedure followed by them was opposed to law. The Commission had to indicate the correct procedure to be followed in such cases.

The police do not possess unchartered right to kill any person with impunity. They can, like any other citizen, exercise the right of private defence. When a policemen causes death in exercise of such a right of private defence it would not be an offence as provided in Sec. 96 of the IPC. That apart, Sec.46 (3) of the Code of Criminal Procedure empowers the police officer making an arrest of a person who is accused of an offence punishable with death or imprisonment for life to use of such force as may be necessary to effect the arrest which may extend upto the causing of death of such person. The police has to act within these limitations when it has to deal with situations of an encounter. When a person is killed by the bullet of a police officer in an alleged encounter it results in an unnatural death. When information about it is received by the Officer-in-charge of the police station, he has to find out if there is reason to suspect the commission of a cognizable offence. In a situation when death occurs in an encounter by the bullet of a police officer it cannot be said whether the causing of death was justified as an act done in proper exercise of the right of private defence or falling within the limits prescribed in regard to causing of arrest falling u/s 46 (3) of the Code of Criminal Procedure without ascertainment of facts after due investigation. The police cannot make a presumption without investigation that the causing of the death by the bullet of the police is not an offence. The correct procedure to be followed in situations of such ‘encounters’ is that the police officer-in-charge of the police station on receipt of information that death was caused by the firing of the police party should record that information and draw the inference that there is reason to suspect the commission of a cognizable offence. After making necessary entries, steps should be taken to investigate the facts and circumstances leading to the death admittedly caused by the bullets of the police to find out whether it was justified either in the exercise of the right of private defence or in the legitimate exercise of the power of arrest under the circumstances specified in Section 46 (3) of the Cr. P. C. As the police party of the same police station is involved in the firing resulting in the killing, such cases should invariably be made over to an independent investigating agency.

The Commission recommended to the Government of Andhra Pradesh to take steps to investigate the facts and circumstances leading to the death of members of People’s War Group (PWG) in alleged encounters with the police and to complete the investigations within 4 months. If the investigations resulted in the need for prosecution, steps be taken for speedy trial. In pursuance of the Commission’s recommendations, the Andhra Pradesh Government have entrusted the State CID with the responsibility of undertaking detailed investigations into the death of five persons killed in the alleged "fake encounters" and the officers concerned have been instructed to complete the task within tree months.

The Chairperson has drawn the attention of all Chief Ministers to the detailed recommendations of the Commission in this case. His letter may be seen at annexure six of this report.

(ii) Complaints from Shri Sanjay Singh Umesh of Daltonganj, Bihar regarding police encounter killings

The complainant alleged that on 15 April, 1996 six naxalites were killed by the police at Murumdag village, Daltonganj, Bihar. The PUCL Palamau which had earlier enquired into the matter stated that an armed group came to the village to settle a dispute. On receipt of information, the police came and encircled the members of the armed group who surrendered to the police. Thereafter, the members of the group were made to stand at different places and fired at by the police. In all six persons were killed as a result of the firing by the police. The PUCL found that the allegation of the police that the naxalite group had attacked the police party with bombs and firearms and that the police returned fire in self-defence resulting in the death of six persons to be untrue. The armed group came in plain clothes but after their post mortem they were dressed in khaki uniforms which had neither any holes nor bullet marks on them. The dead bodies were thrown away but when there was a protest by the people, six bodies were transported in a police van and cremated by the police.

On notice being issued, SP Palamau submitted his report. The report stated that the persons killed belonged to a proscribed organisation, Jan Mukti Morcha, which had been committing atrocities including murder, looting etc. It further stated that the villagers had not invited these people for the settlement of any dispute. Contraband rifles were recovered from the six 'decreased extremists'. There was exchange of fire between the police and the naxalites for about two hours. The police party was attacked by the naxalites with bombs and, therefore, the police had to return the fire, resulting in the killings. All the other allegations in the complaint were denied. It further stated that the complainant was liable to be prosecuted under section 182/211 IPC for making false allegations against the police.

The Commission in its orders noted that it had occasion to examine the correct procedure to be followed by the police in cases where deaths occur in an encounter between the police and others, in a batch of cases from Andhra Pradesh. That order of the Commission had been accepted and given effect to by the Government of Andhra Pradesh. The procedure followed in this case was found to be clearly inconsistent with the correct procedure explained by the Commission in the said order.

As indicated in the order of the Commission in the Andhra Pradesh case, the police officer of the police station on receipt of information about the death of six persons in this case, ought to have registered cases of unnatural deaths of six persons as a result of the firing by the police party and taken immediate steps to investigate the facts and circumstances to find out as to whether the killings were justified either in the exercise of the right of private defence or in the exercise of the right of private defence or in the exercise of the power of arrest under the circumstances specified in Section 46 of the Cr. P. C. As the police attached to the same police station were involved in the firing resulting in the killing, the Commission recommended that the case should be made over to an independent investigation agency namely the State CID and to complete the investigation within four months. If the investigation called for launching of prosecution, steps for speedy trial be taken. The Commission expressed the hope that compensation would be awarded by the State if the case ended in conviction.

(iii) Killing of 11 persons by Gaya police in April, 1994 in Bihar

Suo-motu congnizance was taken by the Commission on perusal of an article regarding the killing of 11 persons by Gaya Police in April, 1994 that appeared in "The Statesman" dated 19 May 1994. The People's Union for Civil Liberties, Bihar also investigated the matter and furnished its report. The findings in the report were that this was a case of 'cold-blooded murder' of 11 persons by the police and that the story of an "encounter" was concocted to cover up their crime and to lend a façade of legal justification to an otherwise cold-blooded murder committed on 12 April 1994. S/Shri Syed Shahabuddin, former Member of Parliament and Arjun Kumar, an advocate also sent separate complaints.

The Commission issued notices to the Chief Secretary and DGP of Bihar. In response, a report was received from the Assistant Inspector General of Police, Bihar. It was stated in the report that Case No. 62/94 was registered on a complaint about this incident from the Sub-divisional Police Officer, Sherghati in PS Mohanpur. The case was registered against the 11 deceased extremists and 100-125 other terrorists u/s 147/148/149/307/323/353 IPC, 17 CLA Act, 25(B) (A), 26/27/35 Arms Act and 3/5 V. P. Act. On investigation, SP Gaya stated that the 11 deceased persons and other unknown persons had gathered in Masaudha forest with a view to committing offences. Two months earlier, 3 innocent persons had been killed in broad daylight and a truck and a motorcycle burnt by the extremists. It was also contended that the extremists, out of enmity, had planned to kill the MLA and also to attack the police party. It was further stated that members of the MCC (Maoist Communist Centre) had planned to commit offences on the date of the encounter. The police having come to know about it, arrived there. The 11 persons who were hiding were asked to surrender to the police. Instead of surrendering they opened fore at the police whereupon the police fired at the hiding miscreants. After several rounds of firing from both sides there was a lull. When the police went inside they found the dead bodies of the 11 persons and some firearms and explosives. A sum of Rs. 8798/- in addition to arms and ammunition and some literature in which a call was given to the farmers to fight against feudalism were recovered. The others had fled away. The villagers were called to get the bodies of the 11 persons identified but nobody recognised them. After a confidential enquiry it was found that 6 out of the 11 persons who were killed were involved in Mohanpur PS Case No. 19/94 for murder of 3 persons and the burning of a truck and motorcycle and for other offences under the IPC.

On examination of the report, the Commission felt that unless the matter was inquired into by a senior judicial officer, the explanation of the police could not be accepted. With the permission of the High Court, the Chief Judicial Magistrate, Gaya has accordingly been entrusted with the inquiry.

(xvii) Alleged abduction and killing of Shri Jalil Andrabi, Advocate, Srinagar, by the security forces in J & K.

The Commission took cognizance of this issue on 12 March 19996 on receipt of a communication from the South Asia Human Rights Documentation Centre through its Executive Director who expressed his apprehension for the safety and physical integrity of Shri Jalil Andrabi, Advocate from Srinagar who was reportedly abducted by some personnel of Rashtriya Rifles on the evening of 8 March 1996 while returning home from the Court. The Commission issued notice to the Chief Secretary, Government of Jammu and Kashmir asking for response within four weeks. Simultaneously, the Commission asked its Director General (Investigation) to collect the facts. A Senior Superintendent of Police of the Investigation Division of the Commission visited Srinagar, Badgam and its adjoining areas and after conducting an on the spot enquiry, gave his report stating that Shri Jalil Andrabi, prima-facie, has been abducted and killed.

The said report was considered by the Commission. The Commission took note of the fact that the defence forces denied their involvement in the matter. The Commission also noted that a Writ Petition had been filed in the J & K High Court and that the Court had set up a special investigation team for investigating the matter and reporting to the Court. The Commission felt that it needed an indepth, transparent and honest investigation in view of the serious allegation of violation of human rights and, therefore, considered it essential to intervene in the pending proceedings before the J & K High court. At the same time, the Commission offered to make the report and record of the investigation carried out by its team available to the Court. Th Commission also offered the services of its investigation team to the Court for participation in the investigation. Since the report of the investigation indicated that the family members of the deceased Advocate were apprehensive about their safety and were in need for security, the Commission issued directions to the Chief Secretary and Director General of Police, Jammu and Kashmir to provide an appropriate security cover to Mrs. Andrabi and other members of the family and to the witnesses of the case.

The High Court of Jammu and Kashmir permitted the Commission to intervene in the pending proceedings and, since then, the Commission had placed the report of its team before the High Court of Jammu and Kashmir. The case is pending