Source: Delhi High Court

Why in News?

Recently, the Delhi High Court in the matter of State of NCT Of Delhi v. Puran Singh has held that an FIR to be registered against the Police whenever an allegedly fake encounter is reported.

What was the Background of the State of NCT Of Delhi v. Puran Singh Case?

• In the present case, First Information Report (FIR) was filed under Section 186, Section 353, Section 307, Section 34 of Indian Penal Code 1860 (IPC) and Section 25 & Section 27 Arms Act, 2019 (AA).
• The Special Team of Crime Branch, Rohini, Delhi had information that a dreaded, hardcore and desperate criminal Manoj @ Morekheri having a syndicate of associates, who had indulged in the offences of murder, extortion, collecting protection money from businessmen etc., was present in the area of Alipur, Delhi.
• The accused and other gang members were found in the car and when the Police tried catching them by firing in sueded between them which led to death one of the criminal named Rakesh @ Raka (deceased).
• The postmortem report also stated that the cause of the death was previous injuries on the lower back of the accused which got escalated due to the bullet shot.
• It was also argued that the incident had been thoroughly enquired into by the Sub Divisional Magistrate who concluded that the bullets were fired by the Police Officials in an act of self-defense to save themselves from the occupant of the car who had fired upon them.
• Shri Puran Singh (respondent), father of the deceased filed a Criminal Complaint under Section 200 of Code of Criminal Procedure, 1973 (CrPC) and for the offences punishable under Section 302 and 34 of IPC and Section 27 AA for causing death of his son.
• It was further contended that none of the three accused persons who were allegedly running to escape, had fired towards the police and none of the police officials received any injury.
• The Inspection Report of the car also established that the firing was done from all sides of the car as all the wind screens were broken, while Rakesh was found injured and lying in blood on the back seat.
• The deceased was not armed with any firearm, was first mercilessly beaten and then the gunshot was fired upon him, and it was a clear case of murder and not encounter.
• The cognizance was taken before the Chief Metropolitan Magistrate (CMM) who ordered the registration of FIR against the Police officials under Section 156(3) of CrPC.
• The order was challenged before the Additional Sessions Judge who confirmed the order of CMM.
• Aggrieved by the decision of the Trial Courts the present petition was filed before the Delhi High Court.
• The police took ground under Section 197 of CrPC that previous sanction is required to file an FIR against the police officials.

What were the Court’s Observations?

• The Delhi High Court observed that any act done extra judicially must be examined with due care to meet the ends of justice.
• The Delhi High Court referred to various judgements and inferred that the police cannot use Section 197 of CrPC (now Section 218 of BNSS) as a protective barrier against all acts.
• The Delhi High Court stated that Section 197 of CrPC protects the police officials only against those acts which are done in discharge of their duty.
• It is rightly held by the Delhi High Court that an FIR to be registered against the Police whenever an allegedly fake encounter is reported.

What is Fake Encounter?

About:

• It is an act of extra-judicially killing of persons who are reported as criminals in various occasions and are under the custodies of law enforcement agencies.
• This act is done without following the due process of law.
• Encounters are a violation of Human rights.
• Fake encounters are rapidly increasing which also violated the fundamental and constitutional rights of the victims.

Legal Provisions Related to Encounters in India:

• There are no direct provisions related to encounter in India while certain provisions empower the police officials or other investigating agencies to take the necessary actions when required as per the following provisions.
• Section 34 to Section 44 of Bharatiya Nyaya Sanhita, 2023 (BNS) states the provisions related to arrest how to be made and also states the circumstances such as death grievous hurt, rape, acid attack where a person causing death in exercise of his private defense will be exempted from the legal liabilities.
• Section 43 (3) of the Bhartiya Nagarik Suraksha Sanhita empowers, 2023(BNSS) enables the Police officers to cause death at the time of the arrest to an accused who is punishable with death or imprisonment for life.
• Section 4 of the Armed Forces Special Powers Act confers special power on the Armed forces where it enables the officials to take necessary actions against the accused whenever necessary.

Rights of Victims of Fake Encounters:

• The victims of the fake encounters have the right to bring the suit against the officials as per the following provisions:
  • Article 14 of the Constitution of India (COI): As per this Article 14, the State shall not deny equality to any person before law but due to encounter the right of the person to present himself and face the trial got waived.
  • Article 21 of COI: Article 21 Ensures no one should be deprived of personal right and liberty, which also protects the person having a criminal history.
  • Article 22 of the COI: Article 22 gives certain rights to an accused person presumed to be innocent until proven guilty.
  • Section 100 of BNS: Section 100 of BNS is also available against the officials to be convicted for the act of fake encounters.

Guidelines Against Fake Encounters:

Supreme Court Guidelines

• In the PUCL v. State of Maharashtra case (2014), the Supreme Court was dealing with writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997.
• The Supreme Court then laid down the following 16 point guidelines as the standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during police encounters:
  • Record Tip-off: Whenever the police receives any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence, it must be recorded either in writing or electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed.
  • Register FIR: If in pursuance to a tip-off, the police uses firearms and this results in the death of a person, then an FIR initiating proper criminal investigation must be registered and be forwarded to the Court without any delay.
  • Independent Probe: Investigation into such death must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. It has to fulfil eight minimum investigation requirements like, identify the victim, recover and preserve evidentiary material, identify scene witnesses, etc.
  • Magisterial Probe: Mandatory magisterial inquiry into all cases of encounter deaths must be held and a report thereof must be sent to the Judicial Magistrate.
  • Inform NHRC: The NHRC or State Human Rights Commission (as the case may be) must be immediately informed of the encounter death.
  • Medical Aid: It must be provided to the injured victim/criminal and a Magistrate or Medical Officer must record his statement along with the Certificate of Fitness.
  • No Delay: Ensure forwarding FIR, panchnamas, sketch, and police diary entries to the concerned Court without any delay.
  • Send Report to Court: After full investigation into the incident, a report must be sent to the competent Court ensuring expeditious trial.
  • Inform Kin: In the case of death of accused criminal, their next of kin must be informed at the earliest.
  • Submit Report: Bi-annual statements of all encounter killings must be sent to the NHRC by the DGPs by a set date in set format.
  • Prompt Action: Amounting to an offence under the IPC, disciplinary action must be initiated against the police officer found guilty of wrongful encounter and for the time being that officer must be suspended.
  • Compensation: The compensation scheme as described under Section 357-A of the CrPC (now Section 396 of BNSS) must be applied for granting compensation to the dependants of the victim.
  • Surrendering Weapons: The concerned police officer(s) must surrender their weapons for forensic and ballistic analysis, subject to the rights mentioned under Article 20 of the Constitution.
  • Legal Aid to Officer: An intimation about the incident must be sent to the accused police officer’s family, offering services of lawyer/counsellor.
  • Promotion: No out-of-turn promotion or instant gallantry awards shall be bestowed on the officers involved in encounter killings soon after the occurrence of such events.
  • Grievance Redressal: If the victim's family finds that the above procedure has not been followed, it may complain to the Sessions Judge with territorial jurisdiction over the place of incident. The concerned Sessions Judge must look into the merits of the complaint and address the grievances raised therein.
• The Court directed that these requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Indian Constitution.

NHRC Guidelines

• In March 1997, Justice M. N. Venkatachaliah (the then chairperson of the NHRC), in the backdrop of increased complaints from the general public and non-governmental organisations related to instances of fake encounters by the police underlined that the police have not been conferred with any right to take away someone's life, except under two circumstances:
  • If the death is caused in the exercise of the right to private defence.
  • Section- 43 of the BNSS, authorizes the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.
• In the light of this notion, the NHRC asked all states and Union Territories to ensure that police follow the following set of guidelines in cases of encounter killings:
  • Register: When the in-charge of a Police Station receives information about the deaths in an encounter, he shall record that information in the appropriate register.
  • Investigation: Received information shall be regarded as sufficient to suspect and immediate steps must be undertaken to investigate the relevant facts and circumstances leading to the death so as to ascertain, if any, offence was committed and by whom.
  • Compensation: It can be granted to the dependents of the deceased when the police officers are prosecuted on the basis of the results of the investigation.
  • Independent Agency: Whenever the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases for investigation are referred to some other independent investigation agency, such as State CID.
• In 2010, NHRC extended these guidelines by including:
  • Registering FIR: When a complaint is made against police alleging committing of a criminal act recognized as cognizable case of culpable homicide, an FIR must be registered under appropriate sections of the IPC.
  • Magisterial Probe: A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible (preferably within three months).
  • Reporting to Commission: All cases of deaths in police action in the states shall be preliminary reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death.
  • A second report must be sent in all cases to the Commission within three months providing information like post mortem report, findings of the magisterial enquiry/enquiry by senior officers, etc.
• The Supreme Court guidelines observed that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not impartial.

Landmark Judgements:

• Anil Kumar and Others vs. M.K. Aiyappa and Anr (2013): The Supreme Court held that a Magistrate cannot refer to a matter under Section 156(3) for registration of FIR against a public servant without a valid Sanction Order. Therefore, any cognizance of offence against a Police official is barred unless a Sanction is obtained from an appropriate Authority, under Section 197 of CrPC.
• Rohtash Kumar v. State of Haryana (2013): It was observed that two crucial guidelines given by NHRC that the investigations into the encounter death must be done by an independent Investigating Agency and that registration of FIR in case whenever a complaint is made against the Police making out a case of culpable homicide, had not been complied with.
• Vinothini v. The State and Ors. (2023): Wherein the court had reiterated the NHRC Guidelines and also stated that the registration of FIR is mandatory against the police officials if they are involved in an encounter killing.
• Devender Singh v. State of Punjab, (2016): It was observed that it is not a part of official duty to commit an offence. Hence, the question of sanction may not be relevant at the initial stage but at any stage during trial.
• Bakhshish Singh v. Gurmej Kaur (1988): The Hon'ble Supreme Court opined that to determine whether the Police Officer while acting in his official duty, had exceeded the limits of his official capacity or not, the cognizance of the offence has to be taken and in these circumstances, trial shall not be stayed for the want of sanction for the prosecution of the accused officer.