The recent history of encounter killing of gangster Vikas Dubey by the UP police has brought back to light the important question as to the lawlessness of the encounter killings by police. These executive killings most of which are alleged to be “fake encounters” are speeding in modern times. As the entire system of governance runs on the three pillars, any imbalance would lead to collapse of the entire machinery. To avoid that happen the system of checks and balance comes in place. Thus, to address the same, Supreme Court and the National Human Rights Commission (NHRC) had framed guidelines to be adhered to in cases of custodial deaths.
In 1997, Justice MN Venkatachaliah, then chairperson of the NHRC, issued following directions in the Shankaraiah’s case.
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.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 death to ascertain what, if any, offence was committed and by whom.
3 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 adal ddeugency, such as the state CID.
4. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.
Following which, again in the year 2010 NHRC added some key procedures to be followed in cases of executive killings, expeditious magisterial inquiry to be made preferably within three months. If any police officer found guilty in such inquiry, prompt prosecution and disciplinary actions must be taken against such officer. Also, to hold any promotion or instant gallery reward to such officer. NHRC required reporting all the cases of deaths in police encounter by the SP of the concerned district within 48 hours of such encounter killing along with the explanation as to why the use of force was unavoidable. Also, the post mortem report, inquest report and the findings of the magisterial enquiry should be attached to the same.
The Supreme Court has given two landmark judgments with regards the executive killings.
In People’s Union for Civil Liberties v. State of Maharashtra, decided by Justice RM Lodha and Justice Rohinton Fali Nariman made it mandatory to file an FIR and made it mandatory that in all the cases of custodial death it is to be probed by the magistrate as per section 170 of CrPC. The court also issued 16 points guidelines to be followed for an independent investigation to be carried in such cases. To ensure the same, investigation to be made by CID or by police department of any other police station under the supervision of a senior officer who must be a level senior to the heading officer of the police party so involved in the encounter.
In Andhra Pradesh Civil Liberties Committee v. Govt. of AP, the court made it clear that in cases where police offer is found guilty of illegal killing, the concerned officer is to be charged with culpable homicide as other citizens without any exception made.
Extent of implementation
Irrespective of the guidelines laid down by the Supreme Court and NAL, there are cases of encounter killings continuing. There are human rights activists who have highlighted several lacunae with regards to the investigation of such cases. The political influence has become successful in molding the due process to be followed. Right from the time of incident taking place to the investigation and findings, is done by the police. This does not ensure proper investigation. Magisterial inquiry rarely hold police accountable. Since 2017, all the 74 cases of encounter killings were given clean chit by UP police.