SUPREME COURT'S GUIDELINES RELATED TO THE ENCOUNTER

SUPREME COURT'S GUIDELINES RELATED TO THE ENCOUNTER  I   RACE IAS : Best IAS Coaching in Lucknow I Current Affairs

Mains Exam: General Studies 3

(Challenge related to internal security and role of anti-regime elements)

Reference :

  • Recently, Asad, son of gangster, politician and contractor Atiq Ahmed and his associate Ghulam, known in Uttar Pradesh, died in a police encounter.
  • This encounter is being described as extrajudicial killing by many human rights organizations.

Key points related to the Encounter:

  • In the year 1999, a social organization 'People's Union for Civil Liberties' filed a petition in the Supreme Court.
  • In this petition, questions were raised on the encounter done by the Mumbai Police during the year 1995 to 1997.
  • In September 2014, a bench of the then Chief Justice of India RM Lodha and Rohinton Fali Nariman issued a detailed 16-point guide lines keeping in mind the fake encounter.

Supreme Court guidelines:

  • The Supreme Court has issued very strict guidelines regarding the encounter. Encounter killings are also called extra judicial killings.
  • Any intelligence about criminal activities should be recorded in the case diary or in any electronic medium.
  • In case of encounter-death, FIR should be registered.
  • An independent investigation of the encounter should be conducted by the CID or the police team of any other police station.
  • Mandatory magisterial inquiry under section 176 in all cases of death due to police firing.
  • Information about the incident should be sent to the National Human Rights Commission or the State Human Rights Commission, as the case may be.
  • Medical aid should be provided to the injured offender/victim and his/her statement should be recorded by the Magistrate or Medical Officer.
  • It should be ensured that there is no delay in sending FIR, diary, panchnama, photos etc. to the concerned court.
  • Investigation report under section 173 should be sent to the competent court.
  • In case of death, the next of kin of the alleged offender/victim should be informed at the earliest.
  • Six-monthly statements of all cases where deaths have occurred in police firing should be sent to the NHRC by the state's DGP.
  • If the death falls under the category of offense under IPC, disciplinary action should be initiated immediately and the police personnel should be suspended.
  • Police officer(s) must surrender their weapons for forensic and ballistic analysis.
  • The family of the police officer should also be informed of the incident and services of a lawyer/counseling should be provided.
  • No out of turn promotion or immediate gallantry award will be given to the officers concerned immediately after the incident.
  • If the family of a victim finds that the above procedure has not been followed, it can make a complaint to the Sessions Judge.
  • It may be noted that in the year 2011, in the Prakash Kadam vs Ram Prasad Vishwanath Gupta case, the Supreme Court had said that fake encounters by the police are nothing but cold-blooded murder and strict action should be taken against those who are carrying them out.

Encounter cases in the country:

According to the report of the Union Home Ministry-

  • Chhattisgarh is on the first number and Uttar Pradesh on the second in terms of encounters during the year 2016 to 2022.
  • In the case of encounters during the year 2021-2022, Jammu and Kashmir is on the first number and Chhattisgarh is on the second number.

What the law says:

  • There is no clear law in the constitution regarding encounter in India. This is the reason why the credibility and validity of police encounters have been questioned from time to time. There is no mention of legalizing encounter anywhere in the law of India. But the law of India gives the police the right to retaliate when criminals attack them and if the miscreant dies in this retaliatory action, it will not be the fault of the police.
  • In the Indian constitution, the police do not have the right to kill any citizen.
  • A person's life can be taken away only according to the provision of life and personal liberty mentioned in Article 21 of the Indian Constitution.

Section 46 of CrPC:

Under Indian law i.e. Section 46 of CrPC, the police get the right that if a criminal tries to escape from the police, tries to escape from arrest, attacks, then in such a situation the police can retaliate.

Guidelines of the National Human Rights Commission:

  • NHRC has also issued strict guidelines regarding the encounter. As per the 1997 guidelines of NHRC, all the states and union territories should follow the following guidelines-
  • As soon as the station in-charge comes to know, the information of death in the encounter should be registered in a proper way.
  • Immediate steps should be taken to investigate the facts and circumstances.
  • Since the police itself is involved in the encounter, the cases should be investigated by an independent agency like the state CID.
  • The investigation should be completed in four months. If the investigation results in an indictment, steps should be taken for a speedy trial.
  • In cases ending in conviction, the issue of compensation to the dependents of the deceased may be considered.
  • When a complaint is registered against the police in a cognizable case of culpable homicide not amounting to murder, an FIR should be registered under appropriate sections of the IPC.
  • In all cases of deaths due to police action, a magisterial inquiry should be conducted, preferably within three months.
  • All cases of deaths due to police action should be reported to the NHRC by the Senior Superintendent of Police/Superintendent of Police of the district within 48 hours of the death.
  • A second report should be submitted to the NHRC within three months, providing information about the postmortem report, investigation report, findings of the magisterial inquiry and inquiries conducted by senior police officers.

Problems arising from the Encounter:

  • Encounters undermine the rule of law and due process and violate human rights such as the right to life.
  • Police and security forces are accused of using excessive force.
  • In the absence of proper legal process, fake encounters start increasing.
  • Autocracy starts increasing in the states.
  • Public mistrust towards the constitutional process of justice increases.
  • States become less attractive to foreign investment
  • Criminal activities start to increase

Reasons for the Encounter:

  • In terms of security, the public believes that such encounters can help deter criminals and make their communities safer.
  • Due to the delay and length in the Indian judicial process, some people consider the encounter to be correct.
  • Lack of awareness among people about human rights.

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Mains Exam Question

How does the internal security of the country get affected by the encounter? What are the guidelines of the Supreme Court to stop the encounter?