'Ignorance Of The Correct Position'

NATIONAL HUMAN RIGHTS COMMISSION
Sardar Patel Bhawan
New Delhi

Name of the complainant : Shri Kuldip Nayar, MP and others
Case no.: 2620/30/2002-2003
Date: 14 November, 2002        

CORAM:
Justice Shri J.S. Verma, Chairperson
Justice Mrs. Sujata V. Manohar, Member
Shri Virendra Dayal, Member

PROCEEDINGS

The Commission had occasion to consider the procedure to be followed in cases of death in police encounter in view of the complaints it had been receiving that instances of fake encounters by the police are on the increase in which no investigation, as required by law, into the cause of these unnatural deaths was being made. 

In some complaints alleging killings in fake police encounters in Andhra Pradesh, the question which arose for consideration by the Commission was whether the police officers who fired the bullets that resulted in the killings, were justified in law to do so, and if otherwise whether and if so what offences were committed by them. 

The Commission considered this question on the basis of the existing law and made an order dated November 5, 1996 (Coram: Justice Ranganath Misra, Chairperson, Justice M. Fathima Beevi and Justice V.S. Malimath, Members) in File Nos. 234 (1-6)/93-94/NHRC, dealing with this question.
 
Reference to some extracts from that order is instructive:
 
".........Article 21 of the Constitution of India provides that no person shall be deprived of his life except according to the procedure established by law. Article 6 of the International Covenant on Civil and Political Rights provides:
 
"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."
 
"Right to life" is the most important one so far as any person is concerned because all other rights would be dependent upon the subsistence of life. The Constitution and the Covenant have, therefore, guaranteed life in emphatic terms and the only limitation is that it could be taken away by the procedure established by law. 

It is not necessary to support this conclusion by any authority and it appears to us as too elementary. What is next to be examined is, is there a procedure which authorises taking away of life in the facts of these cases.
 
... The scheme of the criminal law prevailing in India is that a person who claims the right of private defence as a cover against prosecution has to plead and establish the same. Chapter IV of the Indian Penal Code deals with "General Exceptions" and makes no distinction between an ordinary person and a policeman in this regard excepting in the matter of the plea of performance of duty. In case a situation as contemplated in these Sections arises, police is certainly entitled to take to arms and even kill the attackers without suffering any punishment for the killing.

Right of private defence, if raised, has to be established. Criminal law contemplates that entitlement of protection under an exception would be available if the conditions are satisfied. ............ Section 105 of the Evidence Act clearly prescribes:
 
"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
... 

...The hardship of the State, in our view, cannot take away or abridge the guarantee under Article 21 of the Constitution or Article 6 of the Covenant and while enforcing the guarantee and working in favour of its sustenance in full form, we cannot invoke the doctrine of necessity and apply it as a cover against the fundamental right.
 
.........When the information received indicates that death was caused in the encounter as a result of the firing by the Police, prima facie the ingredients of Section 299 IPC which defines culpable homicide, are satisfied. This is sufficient to suspect that an offence of culpable homicide has been committed. 

Thus, Section 157 of the Code is attracted calling for investigation. Any plea like causing of the death in the case does not constitute an offence either because it was done in exercise of the right of private defence or in exercise of the powers of arrest conferred by Section 46 of the Code, can be accepted only after investigating into the facts and circumstances. Section 100 of IPC provides that right of private defence of the body extends to the voluntary causing of death if occasion for exercise of the right falls in any one of the six categories enumerated in that Section. 

Whether the case falls under any one of the six categories, can only be ascertained by proper investigation. Similarly, when Section 46 (3) of the Code is invoked, it has to be ascertained as to whether the death of the deceased occured when he forcibly resisted the endeavour of the Police to arrest him and whether the deceased was accused of an offence punishable with death or imprisonment for life. Without proper investigation, the Police officer cannot say that the causing of the death in the encounter was not an offence either because it was done in exercise of the right of private defence or was done in legitimate exercise of the power conferred by Sec. 46 of theCode..

...These provisions indicate that unnatural death has to be taken note of seriously by the Police and required them to find out by investigation the real cause of death. The responsibility is greater when it is the Police that are the cause of unnatural death. There is also a general feeling that most of the encounters are fake. It is, therefore, in public interest that the conduct of the Police involved is subjected to proper scrutiny by investigation. 

To avoid the possibility of bias, the investigation in such cases should be entrusted to an independent agency like the State CID by a general order of the Government. We are, therefore, of the opinion that when information is received in the Police Station about the causing of the death by the Police officer in an encounter, the officer-in-charge of the Police Station must, after recording that information, draw the inference that there is reason to suspect the commission of an offence and proceed to investigate the same as required by Section 157 of the Code. 

If such a procedure is not required to be followed, it would give licence to the Police to kill with impunity any citizen in the name of an encounter by just stating that he acted in ‘the right of private defence’ or under Section 46 of the Code. A procedure which brings about such unjust, unfair and unreasonable consequences cannot be countenanced as being within Article 21 of the Constitution."
 
Subsequently, by a letter dated March 29, 1997, the then Chairperson, Justice M.N. Venkatachaliah wrote to Chief Ministers of all States indicating the correct procedure to be followed in all cases of death in police encounter.
 
Relevant extracts from the said letter dated March 29, 1997 are as under:

".........Under our laws the police have not been conferred any right to take away the life of another person. If, by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law. Under the scheme of criminal law prevailing in India, it would not be an offence if death is caused in the exercise of the right of private defence. 

"Another provision under which the police officer can justify the causing of death of another person, is Section 46 of the Criminal Procedure Code. This provision authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life. It is, therefore, clear that when death is caused in an encounter, and if it is not justified as having been caused in exercise of the legitimate right of private defence, or in proper exercise of the power of arrest under Section 46 of the Cr.P.C., the police officer causing the death, would be guilty of the offence of culpable homicide. Whether the causing of death in the encounter in a particular case was justified as falling under any one of the two conditions, can only be ascertained by proper investigation and not otherwise.
 
.........After hearing all the parties and examining the relevant statutory provisions in the context of the obligation of the State to conform to Article 21 of the Constitution, the Commission, by its order dated 5.11.1996, found that the procedure followed in Andhra Pradesh was wrong and the Commission laid down and indicated the correct procedure to be followed in all such cases. A copy of the order of the Commission furnishing the reasons and the correct procedure to be followed is enclosed. These recommendations have been accepted by the Andhra Pradesh Government.
 
As the decision of the Commission bears on important issues of Human Rights which arise frequently in other parts of the country as well, the Commission decided to recommend the correct procedure to be followed in this behalf to all the States. The procedure, briefly stated, is as follows:
 
A. When the police officer in charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register.
 
B. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.
 
C. As the police officers belonging to the same Police Station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as State CID.........."

In view of the above extracts from the Commission’s order dated November 5, 1996 and the gist thereof communicated to all the Chief Ministers by the said letter dated March 29, 1997, it is unnecessary to elaborate further the correct legal position and the procedure required to be followed in such matters under our Constitution and the laws.    
 
In this context, it is significant to remember that Article 359 of the Constitution of India expressly provides that Article 20 (prohibition against ex post facto penal law, double jeopardy and testimonial compulsion) and Article 21 (protection of life and personal liberty) are non-derogable even when a proclaimed emergency is in operation. Similarly, Article 6 of the International Covenant on Civil and Political Rights to which India is a State party is non derogable under the terms of the Covenant.
 
It is instructive to remember that in the case of a death caused in police encounter, the stand taken invariably by the police force, which caused the death, is that the death was caused by the police force in the performance of its duty and in exercise of its right of private defence so as to bring its case within the scope of the General Exceptions in the Indian Penal Code or Section 46 of the Criminal Procedure Code. This itself is sufficient to show that no right higher than that given under the law to kill a person is claimed even by the police to justify death in police encounter. These obvious facts are overlooked when criticism is leveled against the requirement to justify a killing under the rule of law. 
 
One of the functions of the Commission enumerated in Section 12 of the Protection of Human Rights Act, 1993, is to enquire, suo motu or on a petition presented to it by any interested person, into complaint of violation of human rights or abetment thereof; or negligence in the prevention of such violation, by a public servant. This statutory obligation on the Commission coupled with the mandate under the Constitution and the laws spelled out in the Commission’s above order dated November 5, 1996 followed by the letter of the then Chairperson dated March 29, 1997, makes it the Commission’s duty to enquire into any incident of death in police encounter brought to its notice in any manner.
 
In the present case, the complaint was presented personally by Shri Kuldip Nayar, senior journalist and Member of Parliament and Shri Praful Bidwai, a senior journalist. Taking cognizance of the complaint, the Commission called upon the police to furnish a report of the incident. To say the least, this was an obvious requirement in discharge of the Commission’s statutory obligation and in keeping with its practice since inception of taking cognizance of such complaints.
 
In response to the Commission’s notice, a report by the police authorities has now been received in the Commission’s office and the same would be considered and dealt with according to the procedure followed by the Commission in all such cases. That exercise will be undertaken in the coming days.

The Commission considers it appropriate to reiterate the correct position under our Constitution and the laws which was examined at length in the above order of November 5, 1996 and was later communicated to all the Chief Ministers by the above letter dated March 29, 1997 by the then Chairperson. It is unfortunate that some intemperate observations have appeared in media reports, commenting on cognizance of this matter having been taken by the Commission in the normal course. Such remarks betray an ignorance of the correct position under our Constitution and the laws, and more disturbingly, depict a degree of intolerance inconsistent with the principles of our democratic polity.
 
A copy of this proceeding be sent to each of the noticees as well as to the Union Home Secretary, Ministry of Home Affairs, Government of India.