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Showing weak judgement

Comment on Indian Supreme Court decision regarding encounter deaths

by Colin Gonsalves, 27 September 2014

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Indian Express

Showing weak judgement

The crux of the matter was the filing of an FIR against the police officer in all cases of encounter killings. The crux of the matter was the filing of an FIR against the police officer in all cases of encounter killings.

Written by Colin Gonsalves | Posted: September 25, 2014

The decision of the Supreme Court in the People’s Union for Civil Liberties case (in which the genuineness of nearly 99 encounters between the Mumbai police and alleged criminals, resulting in the death of 135 persons between 1995 and 1997, were questioned) has avoided the real issue and is disappointing. The direction given to the effect that an FIR should be registered in all cases of encounter deaths misses the core issue, namely that FIRs are being registered today in every encounter case.

The trick the police engage in is to register an FIR against the dead person under IPC Section 307, alleging that he attempted to murder a police officer, and since the accused is dead, the criminal case is treated as closed by the police themselves without taking the case to the magistrate.

As a remarkable full bench decision of the Andhra Pradesh High Court recently held, the correct procedure is to first register an FIR against the police officer causing death. If the criminal investigation revealed that the officer had fired in self-defence, a closure report would be filed before the magistrate and the case closed by the magistrate, not the police. If the investigation showed that a case under IPC 302 (murder) was made out against the police officer, a chargesheet would be filed and the trial would proceed. The crux of the matter was the filing of an FIR against the police officer in all cases of encounter killings. This is not done anywhere in the country. The result is that criminal prosecutions of policemen do not take place, which is why fake encounters that amount to nothing but extra-judicial executions have spread to every part of this country. In the present case, the direction is merely for an FIR to be registered. By this weak drafting, the entire judgment is undermined.

The full bench decision of the Andhra HC was regrettably stayed by the SC on an argument made by the counsel for the state that the policemen who risk their lives nabbing terrorists would themselves face legal proceedings. The argument is more rhetorical than real. If the law mandates that any person who causes unnatural death must have an FIR registered against him and be subject to a criminal investigation where he may take the plea of self-defence, and if the law makes no distinction between a civilian and a person in uniform, then so be it. The irritation caused to a policeman who takes part in a genuine encounter can be obviated by commencing the criminal investigation on the spot, quickly recording the statements of the witnesses, including independent witnesses, and then filing a closure report before the magistrate, who would then close the case. This is a small inconvenience compared to the larger good of the rule of law applying equally to civilians and policemen.

The second significant mistake lies in the directive that encounter killings ought to be investigated by the CID or a police team from another police station. This is in spite of numerous decisions by the SC that the CBI ought to be appointed as the investigator and prosecutor in all cases of custodial killings and fake encounters. The CID or the police from another police station can hardly be expected to act independently and fearlessly. This judgment therefore undermines previous decisions calling upon the CBI to replace the state police.

SC decisions on fake encounters have, in the recent past, been heartbreaking. The most shocking of these was the decision in the Pathribal massacre case in Kashmir, where the CBI reported that the killings by the security forces were coldblooded murder and yet the court held that the sanction of the state under Section 197 of the IPC was necessary for the prosecution of the officers. In a similar matter arising from Punjab, where the CBI filed a chargesheet confirming that a senior police officer had killed the son of a senior civil servant in cold blood and thereafter fabricated records to make out as if the accused had escaped from custody, the court quashed the prosecution. These cases sent shock waves through civil society and reinforced people’s impression that on police misconduct, the judiciary generally stands with the establishment and not the people of India.

The roles of the National Human Rights Commission and the state human rights commissions in dealing with fake encounters are uniformly deplorable. After the majority decision of the SC (Justice Sabharwal holding to the contrary) that policemen could be appointed to these commissions, they have been appointed everywhere and are sometimes acting chairpersons. Apart from framing guidelines that are proudly presented in court, these commissions have become inactive and merely order pitiable amounts of compensation to the families of victims. This practice of ordering compensation without prosecution is interpreted by the police in a perverse manner as only requiring the police force to pay for a killing. In police budgets throughout the country, there must be a special line item for such routine payments.

It is time to break new ground. The orders of the apex court in the case of the killings of over 1,500 persons in Manipur over the last decade saw the setting up of a court commission headed by Justice Santosh Hegde, who reported that from the sample of cases considered, not a single encounter was genuine and that not a single victim had a terrorist background or even a criminal record. In the police reform case, the court ordered that police complaints authorities had to be established in every district and headed by a judge. This judgment has been subverted by the states, which have framed rules for the authorities to be headed by policemen. Judicial deference to the police must come to an end if democracy is to survive.

The writer is a senior advocate, Supreme Court of India, and founder director of Human Rights Law Network

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