Killings in police encounters affect the credibility of rule of law and the administration of criminal justice system, the Supreme Court had said in a 2014 judgment while issuing a slew of guidelines to be followed in matters of investigating police encounters which have led to death or grievous injury.
The apex court's verdict in the case of People's Union for Civil Liberties and another versus State of Maharashtra and others assumes significance in light of the encounter by the Uttar Pradesh Police on Thursday in Jhansi in which gangster-turned-politician Atiq Ahmad's son Asad and an accomplice, both wanted in the Umesh Pal murder case, were killed.
In its September 23, 2014, judgment, a bench of then Chief Justice of India R M Lodha and Justice R F Nariman (since retired) had dealt with the pleas raising the issue of genuineness or otherwise of nearly 99 encounters between Mumbai police and alleged criminals resulting in death of about 135 people between 1995 and 1997.
Noting that the right guaranteed by Article 21 of the Constitution, which deals with protection of life and personal liberty, is available to every person and even the State has no authority to violate it, the top court had said, "In a society governed by rule of law, it is imperative that extrajudicial killings are properly and independently investigated so that justice may be done."
In another judgment delivered on May 13, 2011, in the case of Prakash Kadam and others vs Ramprasad Vishwanath Gupta and others, an apex court bench of Justices Markandey Katju and Gyan Sudha Misra (both since retired) had said fake encounters are nothing but "cold blooded, brutal murder by persons who are supposed to uphold the law".
"We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases," the top court had said, adding, "We warn policemen that they will not be excused for committing murder in the name of 'encounter' on the pretext that they were carrying out the orders of their superior officers or politicians, however high."
In its September 2014 judgment, the top court had issued a slew of guidelines, including that whenever police are in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.
"If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under section 157 of the Code (CrPC) without any delay," the apex court had said.
It had said an independent investigation into the incident/ encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
It had said the team conducting inquiry/investigation shall, at a minimum, seek to identify the victim, recover and preserve evidentiary material including blood-stained earth, hair, fibres and threads etc related to the death, identify scene witnesses and obtain their statements (including the statements of police personnel involved) and determine the cause, manner, location and time of death as well as any pattern or practice that may have brought about the death.
"Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed," it said, adding, "The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide."
The top court said a magisterial inquiry under section 176 of the CrPC must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to the judicial magistrate having jurisdiction under section 190 of the code.
It said the involvement of National Human Rights Commission (NHRC) is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident, without any delay, must be sent to the NHRC or the state human rights commission, as the case may be.
The injured criminal/victim, it said, should be provided medical aid and his or her statement be recorded by a magistrate or medical officer with certificate of fitness.
"After full investigation into the incident, the report should be sent to the competent court under section 173 of the code (CrPC). The trial, pursuant to the charge sheet submitted by the investigating officer, must be concluded expeditiously," the guidelines said, adding in the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
The SC guidelines said if on the conclusion of investigation, the material or evidence having come on record show that death had occurred by use of firearm amounting to offence under the Indian Penal Code (IPC), disciplinary action against such officer must be promptly initiated and he be placed under suspension.
The court said as regards compensation to be granted to the dependants of the victim, who suffered death in a police encounter, the scheme provided under section 357-A of the CrPC must be applied.
The top court also had said no out-of-turn promotion or instant gallantry rewards shall be bestowed on the officers concerned soon after the occurrence of the encounter and it must be ensured at all costs that such rewards are given/recommended only when the gallantry of the officers is established beyond doubt.
"If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the sessions judge having territorial jurisdiction over the place of incident," the apex court had said in the guidelines.