Disappointing judgement of Supreme Court pertaining to ‘encounters’ – HRF

July 28, 2019

Press Release

The Human Rights Forum (HRF) is deeply disappointed and concerned with the July 18, 2019 order by a three-judge Bench of the Supreme Court in the ‘encounters’ case.

This is not an order that upholds the landmark judgment by a 5-judge bench of the Andhra Pradesh High Court on February 6, 2009. It does not state, as the AP HC judgement did, that after every ‘encounter’ death a first information report (FIR) has to be registered against police personnel who have participated in the ‘encounter’.

The Supreme Court has now only said that an FIR has to be registered, not that it has to be filed against those police personnel who have participated in the said exchange of fire and are resorting to the plea of self-defense.

The Supreme Court has placed faith in the matter of investigation of police encounters on a 2014 decision of the Supreme Court (Peoples Union for Civil Liberties and another vs State of Maharashtra and others, 2014). Stating that this judgment “laid down a detailed and exhaustive procedure to be followed in such cases”, the SC on July 18 held that the directions in the PUCL case be treated as law in the matter of investigating police encounters.

HRF does not agree with this view. In the PUCL case, there is no clear and explicit direction to register FIR against the police personnel responsible for causing death in an ‘encounter’, only that an FIR has to be registered. By reiterating this judgement and holding it to be the law of the land, the Supreme Court has circumvented the fundamental issue – which is that FIRs have to be filed against police personnel in all cases of ‘encounter’ deaths.

This SC order will only result in police personnel getting away scot-free without being criminally prosecuted as has been the case all these years and even so after the September 23, 2014 PUCL judgement. It is amazing that such lack of clarity can emanate from the highest court of the land.

We cannot understand how the Supreme Court has failed to comprehend the reality that FIRs are indeed being registered after every ‘encounter’. The police do lodge an FIR – that is against the dead person – under Section 307 of the IPC alleging that the now deceased attempted to murder police personnel. And since the person or persons who had so attempted to kill police personnel is now dead in the purported encounter, the case is simply closed.

Is the SC not aware that this has been the devious practice across the country which is why the police have been literally getting away with murder without being subjected to any kind of criminal investigation? Magisterial inquiries are being held and cases closed and that is that. It would be pertinent to point out that in many of these ‘encounters’, it is unarmed civilians who have been summarily liquidated.

It is the HRF’s view that all ‘encounter’ cases must be registered as two crimes – under Section 307 and Section 302 of the IPC. The first is a crime of attempt to murder by the now deceased and the other a crime of culpable homicide amounting to murder by the police purportedly in self-defence.

The burden of establishing to a competent court a preponderance of probabilities in favour of the exception relating to self-defense rests upon the police who have fired causing death. In effect, the plea for self-defense must be established at the stage of trial and not during the course of investigation.

And who is to conduct investigation into the case? According to the Supreme Court: “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).”

In other words, the police will be investigating alleged crimes of their brethren. This is unacceptable since any such investigation cannot be just, fair and independent and will only come to naught as we have seen on numerous occasions. We believe that a truly independent criminal investigation mechanism is called for in all cases of administrative liquidation.

It is worth recalling a core para from the exemplary judgement of the 5-member Bench of the AP High Court that ruled on February 6, 2009: “Where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstance shall be recorded and registered as FIR, enumerating the relevant provisions of Law, and shall be investigated.”

If on July 18, 2019, the Supreme Court had upheld the AP High Court order of 2009, it would have resulted in bringing police personnel/officers responsible for the odious phenomena of extra-judicial executions to trial. If the SC had upheld the cardinal principle of filing FIRs against police personnel involved in ‘encounters’ to be followed by a fair investigation by a truly independent body, it would have gone a long way in ending impunity that the police have been enjoying all these many decades.

Sadly, the apex court was not up to the task. It has to be said that in this case, the SC has failed to protect the seminal principle of right to life contained in Article 21 of the Constitution. HRF is of the opinion that the July 18 order has to be re-visited.

VS Krishna S Jeevan Kumar (HRF AP&TS Coordination Committee members)

27-7-2019 Hyderabad