Civil Liberties Monitoring Committee. India

Extra judicial killing is carried out by order of a govt or with its complicity. it occurs within a govt own territory and are carried out by regular military or police force, by special units created to function without normal supervison,or by civilian agents working with govt forces or with its complicity, such forces, units often called death squads. The victim may be political opponents, human rights defenders, or criminal suspects

NATIONAL HUMAN RIGHTS COMMISSION [NHRC] GUIDELINES ON ENCOUNTER DEATHS March 29, 1997 and REVISED GUIDELINES

December 2, 2003

Under the law, no one including the police has an unqualified right to take the life of another person. Death of a person by a police officer amounts to culpable homicide not amounting to murder, unless it is established that the causing of death is not an offence in law. If a police officer kills someone in an encounter, s/he must prove that the death was caused either in the legitimate exercise of the right of private defence

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or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment.

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This can only be ascertained by a proper investigation and not otherwise . First Information Reports [FIR] recorded at police stations invariably say that, on sighting the police, the other party opened fire with a view to kill. They give the impression that the concerned officers are justified in causing death, exercising their right of self-defence. So, no attempts are made by the police to find out whether officers who fire the bullets are justified in law to doing so .

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Section 36 (2) of the Protection of Human Rights Act, 1993 lays down that human rights commissions cannot take up a fresh complaint if more than one year has elapsed since the human rights violation was committed.

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Under Sections 96-106 of the Indian Penal Code, 1860 [Private Defences]

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Section 46 (1) of the Code of Criminal Procedure, 1973 [CrPC] empowers a police officer to touch or confine the body of a person being arrested if s/he does not submit to the officer s custody by word or action (2) empowers a police officer to use all means necessary to effect an arrest if the person being arrested forcibly resists the endeavour to arrest him (3) includes a rider that nothing in this section gives a right to cause death of a person who is not accused of an offence punishable with death or with imprisonment for life .

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Responding to public concerns that in reported encounters, sufficient efforts are not made to ascertain the cause of death and whether the deceased have committed any offences, the National Human Rights Commission has directed all states and union territories to ensure adherence to proper police procedure and conduct of impartial investigations.

NHRC Guidelines

1. As soon as information about death being caused in a police encounter is received, the officer in-charge of a police station must record it in the appropriate register.
2. It is desirable that the investigation should be handed over to an independent investigation agency such as the Criminal Investigation Department [CID], if members of the encounter party belong to the same police station.
3. Whenever a specific complaint is made against the police for committing a criminal act that amounts to culpable homicide, an FIR should be registered under appropriate sections of the Indian Penal Code and investigation should invariably be handed over to the CID.
4. A magisterial inquiry must invariably be held in all cases where death has occurred in the course of police action. The next of kin of the dead person must invariably be associated with the inquiry.
5. Prompt prosecution and disciplinary action must be initiated against the officers found guilty in the magisterial inquiry/ police investigation.
6. The question of compensation being given to the dependents of the dead person will depend on the facts and circumstances of each case.
7. No out of turn promotion or instant gallantry rewards will be given to the concerned officers soon after the occurrence. It must be ensured [at all costs] that they are given only after the gallantry of the officer concerned is proven beyond doubt.
8. A six monthly statement of all cases of deaths in police action in the state shall be sent by the Director General of Police to the NHRC by January 15 and July 15 every year. The statement may be sent in the following format along-with post- mortem reports and inquest reports [wherever available] and also the inquiry reports:

.(i) Date and place of occurrence
(ii) Police station and district
(iii) Circumstances leading to death:

1. Self defence in encounter
2. In the course of dispersal of unlawful assembly
3. n the course of effecting arrest

(iv) Brief facts of the incident
(v) Criminal case number
(vi) Investigating agency
(vii) Finding of the magisterial inquiry/ inquiry by senior officers:

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(a) disclosing in particular names and designations of police officials, if found responsible for the deaths; and
(b) whether use of force was justified and action taken was lawful. Eliminating suspected members of outlaw or militant organisations by staging fake encounters amounts to murder. Article 21 of the Constitution lays down that no one shall be deprived of life or personal liberty, except according to the procedure established by law. The Supreme Court has said that !even a person under death sentence has human rights which are non-negotiable and even a dangerous prisoner, standing trial has basic liberties which cannot be bartered away#".

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Revised Guidelines/Procedures to be followed in dealing with deaths occurring in encounter deaths

The guidelines issued by the Commission in respect of procedures to be followed by the State Govts. in dealing with deaths occurring in encounters with the police were circulated to all Chief Secretaries of States and Administrators of Union Territories on 29.3.1997.

Subsequently on 2.12.2003, revised guidelines of the Commission have been issued and it was emphasised that the States must send intimation to the Commission of all cases of deaths arising out of police encounters. The Commission also recommended the modified procedure to be followed by State Govts.

In all cases of deaths, in the course of police action, and it was made clear that where the police officer belonging to the same police station are members of the encounter party, whose action resulted in deaths, such cases be handed over for investigation to some other independent investigating agency, such as State CBCID, and whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by the State CBCID. A Magisterial Inquiry must invariably be held in all cases of deaths which
occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.

All the Chief Ministers and Administrators have been directed to send a six monthly statement of all cases of deaths in police action in the States/ UTs through the Director General of Police to the Commission by the 15th Day of January and July respectively in the proforma devised for the purpose.

Justice A.S. Anand
Chairperson
(Former Chief Justice of India)

2nd December, 2003

Dear Chief Minister,

Death during the course of a police action is always a cause of concern to a civil society. It attracts criticism from all quarters like Media, the general public and the NGO sector.

The police does not have a right to take away the life of a person. If, by his act, the policeman kills a person, he commits an offence of culpable homicide or not amounting to murder, unless it is established 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 the death is caused in exercise of right of private defence. Another provision under which the police officer can justify causing the death of a person, is section 46 of the Criminal Procedure Code. This provision authorizes the police to use reasonable force, even extending up to the causing of death, if found necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, it is evident that death caused in an encounter if not justified would amount to an offence of culpable homicide.

The Commission while dealing with complaint 234 (1 to 6)/ 93-94 and taking note of grave human rights issue involved in alleged encounter deaths, decided to recommend procedure to be followed in the cases of encounter death to all the states. Accordingly, Hon’ble Justice Shri M.N. Venkatachaliah, the then Chairperson NHRC, wrote a letter dated 29/3/1997 to all the Chief Ministers recommending the procedure to be followed by the states in “cases of encounter deaths” (copy enclosed for ready reference).

Experience of the Commission in the past six years in the matters of encounter deaths has not been encouraging. The Commission finds that most of the states are not following the guidelines issued by it in the true sprit. It is of the opinion that in order to bring in transparency and accountability of public servants, the existing guidelines require some modifications.

Though under the existing guidelines, it is implicit that the States must send intimation to the Commission of all cases of deaths arising out of police encounters, yet some States do not send intimation on the pretext that there is no such specific direction. As a result, authentic statistics of deaths occurring in various states as a result of police action are not readily available in the Commission. The Commission is of the view that these statistics are necessary for effective protection of human rights in exercise of the discharge of its duties.

On a careful consideration of the whole matter, the Commission recommends following modified procedure to be followed by the State
Governments in all cases of deaths in the course of police action :-

1. 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.
2. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID.
3. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognisable
   case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State CBCID.
4. A Magisterial Inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.
5. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police
   investigation.
6. Question of granting of compensation to the dependents of the deceased would depend upon the facts and circumstances of each case.
7. 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 officer is established beyond doubt.
8. A six monthly statement of all cases of deaths in police action in the State shall be sent by the Director General of Police to the Commission, so as to reach its office by the 15th day of January and July respectively. The statement may be sent in the following format along with post-mortem
   reports and inquest reports, wherever available and also the inquiry reports:-

1. Date and place of occurrence
2. Police Station, District.
3. Circumstances leading to deaths:
i. Self defence in encounter
ii. In the course of dispersal of unlawful assembly
iii. In the course of effecting arrest.

4. Brief facts of the incident
5. Criminal Case No.
6. Investigating Agency
7. Findings of the magisterial Inquiry/enquiry 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. It is requested that the concerned authorities of the State are given
appropriate instructions in this regard so that these guidelines are adhered to both in letter and in spirit.

With regards,
Yours sincerely,
Sd/-
(A.S. Anand)

To :All Chief Ministers of States/UTs