Police Encounters always happens to be a point of discussion among the public as well as by the courts. First thing we have to understand that police force is not like Army or any other Armed forces of Unions and is meant to save not to kill. But in certain circumstances police may use the force and that to in exercise of right of private defence as mentioned in IPC.
But now a days various cases has come up where allegations of false or fake encounter is being made against the police forces. In order to keep a check on this the hon'ble Supreme Court of India has issued following guidelines which must be observed in every case of encounter by police forces not only in the cases of death in encounter but also where it results in grievous hurt..
In case of People’s Union for Civil Liberties & AnrVersus State of Maharashtra
& Ors Criminal Appeal No. 1255 of 1999 decided on 23-9-14.
In
light of the discussion and having regard to the directions issued by the Bombay High Court,
guidelines issued by NHRC,suggestions of the appellant – PUCL, amicus curiae
and the affidavits filed by the Union of India, State Governments and the Union Territories, we
think it appropriate to issue the following requirements to be followed in the
matters of investigating police encounters in the cases of death as the
standard procedure for thorough, effective and independent investigation:
(1)
Whenever the police is 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. Such recording need not reveal details of
the suspect or the location to which the party is headed. If such intelligence
or tip-off is received by a higher authority, the same may be noted in some
form without revealing details of the suspect or the location.
(2)
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 without any delay. While
forwarding the report under Section 157 of the Code, the procedure prescribed
under Section 158 of the Code shall be followed.
(3)
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). The team
conducting
inquiry/investigation shall, at a minimum, seek:
(a)
To identify the victim; colour photographs of the victim should be taken;
(b)
To recover and preserve evidentiary material, including blood-stained earth,
hair, fibers and threads, etc., related to the death;
(c)
To identify scene witnesses with complete names, addresses and telephone
numbers and obtain their statements (including the statements of police
personnel involved) concerning the death;
(d)
To determine the cause, manner, location (including preparation of rough sketch
of topography of the scene and, if possible, photo/video of the scene and any
physical evidence) and time of death as well as any pattern or practice that
may have
brought
about the death;
(e)
It must be ensured that intact fingerprints of deceased are sent for chemical
analysis. Any other fingerprints should be located, developed, lifted and sent
for chemical analysis;
(f)
Post-mortem must be conducted by two doctors in the District Hospital, one of
them, as far as possible, should be Incharge/ Head of the District Hospital.
Post-mortem shall be videographed and preserved;
(g)
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.
(h)
The cause of death should be found out, whether it was natural death,
accidental death, suicide or homicide.
(4)
A Magisterial inquiry under Section 176 of the Code 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 Judicial Magistrate having jurisdiction under Section
190 of the Code.
(5)
The involvement of 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 NHRC or the State Human Rights
Commission, as the case may be.
(6)
The injured criminal/victim should be provided medical aid andhis/her statement
recorded by the Magistrate or Medical Officer with certificate of fitness.
(7)
It should be ensured that there is no delay in sending FIR,diary entries,
panchnamas, sketch, etc., to the concerned Court.
(8)
After full investigation into the incident, the report should be sent to the
competent court under Section 173 of the Code. The trial, pursuant to the
chargesheet submitted by the Investigating Officer, must be concluded
expeditiously.
(9)
In the event of death, the next of kin of the alleged criminal/victim must be
informed at the earliest.
(10)
Six monthly statements of all cases where deaths have occurred in police firing
must be sent to NHRC by DGPs. It must be ensured that the six monthly
statements reach to NHRC by 15th day of January and July, respectively. The
statements may be sent in the following format along with post mortem, inquest
and, wherever available, the inquiry reports:
(i)
Date and place of occurrence.
(ii)
Police Station, District.
(iii)
Circumstances leading to deaths:
(a)
Self defence in encounter.
(b)
In the course of dispersal of unlawful assembly.
(c)
In the course of affecting arrest.
(iv)
Brief facts of the incident.
(v)
Criminal Case No.
(vi)
Investigating Agency.
(vii)
Findings of the Magisterial Inquiry/Inquiry by Senior Officers:
(a)
disclosing, in particular, names and designation of police officials, if found
responsible for the death; and
(b)
whether use of force was justified and action taken was lawful.
(11)
If on the conclusion of investigation the materials/evidence having come on
record show that death had occurred by use of firearm amounting to offence
under the IPC, disciplinary action against such officer must be promptly
initiated and he be placed
under
suspension.
(12)
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 Code must be applied.
(13)
The police officer(s) concerned must surrender his/her weapons for forensic and
ballistic analysis, including any other material, as required by the
investigating team, subject to the rights under Article 20 of the Constitution.
(14)
An intimation about the incident must also be sent to the police officer’s family and should the family
need services of a lawyer / counselling, same must be offered.
(15)
No out-of-turn promotion or instant gallantry rewards shall be bestowed on the
concerned officers soon after the occurrence. It must be ensured at all costs
that such rewards are given/recommended only when the gallantry of the
concerned officers is established beyond doubt.
(16)
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. Upon such complaint being made, the concerned Sessions Judge shall
look into the merits of the complaint and address the grievances raised
therein.
(17)The
above guidelines will also be applicable to grievous injury cases in police
encounter, as far as possible.
(18)
Accordingly, we direct that the above 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 Constitution of India.
