SUPREME COURT GUIDELINES ON ENCOUNTER KILLINGS Amaresh Patel BASICS OF LAW Tue, Dec 10, 2019, at ,07:14 AM Recently, all four accused in the rape and murder case of the Telanagana veterinarian were killed in a police encounter. The police claimed the accused snatched their weapons and opened fire on them. They retaliated in self-defence leading to the deaths of the four men, accused of raping and setting the 27-year-old woman ‘Disha’ on fire. The encounter triggered celebrations as well as outrage among the masses. While some justified the killings, saying on-the-spot justice was the best possible way to deal with such a crime, others described it as "extrajudicial killings" and questioned police's version. Even as the public is divided on whether justice has been served or evaded, and the National Human Rights Commission (NHRC) has taken suo motu cognizance over the incident. In 2014, the apex court, while hearing plea moved by People's Union of Civil Liberties (PUCL) against the authenticity of 90 encounter deaths by Mumbai police in between 1995-97, first underlined the right to life guaranteed under Article 21 of the constitution. The two-judge bench of the then Chief Justice of India RM Lodha and Justice RF Nariman said the right to life was the "most precious" one and even the state had no authority to violate it. The court stressed the "killings in police encounters require independent investigation," for they affect the credibility of the law and criminal justice system. The recent killings of the accused in the Hyderabad rape case in an alleged encounter have created divided opinions among the public at large. On one hand, we understand the emotions attached to the brutal case, but on the legal perspective, the question involved is whether encounter killing is justifiable? SOME OF THE GUIDELINES- Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of a 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. 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 CrPC, the procedure prescribed under Section 158 of the Code shall be followed. 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. The team conducting inquiry/investigation shall, at a minimum, seek: To identify the victim; colour photographs of the victim should be taken; To recover and preserve evidentiary material, including blood-stained earth, hair, fibres and threads, etc., related to the death; 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; 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; It must be ensured that intact fingerprints of deceased are sent for chemical analysis; Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be video-graphed and preserved; 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; The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide. A Magisterial inquiry under Section 176 of the CrPC 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. 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. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness. It should be ensured that there is no delay in sending FIR, diary entries, panchnamas (statement of person present at the time of arrest, search and seizure) , sketch, etc., to the concerned Court. After full investigation into the incident, the report should be sent to the competent court under Section 173 of the CrPC. The trial, pursuant to the charge sheet submitted by the Investigating Officer, must be concluded expeditiously. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest. 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. 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. 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 CrPC must be applied. 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. 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. It must be ensured that no gallantry awards shall be bestowed soon after the occurrence of the act. All costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt. 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.