Archive for the ‘Court Order’ Category

Supreme Court guidelines regarding deaths in encounters

November 7, 2016
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Requirements to be followed in cases of encounter deaths issued by the Supreme Court

(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of 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.

(2) 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 Code, the procedure prescribed under Section 158 of the Code shall be followed.

(3) 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). The team conducting inquiry/investigation shall, at a minimum, seek:  

(a) To identify the victim; colour photographs of the victim should be taken; 

(b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;

(c) 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;

(d)  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;

(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis.  Any other fingerprints should be located, developed, lifted and sent for chemical analysis;

(f) 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 videographed and preserved;

(g) 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.

(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.    

(4) A Magisterial inquiry under Section 176 of the Code 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.

(5) 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.          

(6) The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.

(7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.

(8) After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously.

(9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.    

(10) 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. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports:

(i) Date and place of occurrence.

(ii)  Police Station, District.

(iii)  Circumstances leading to deaths:

                                (a)  Self defence in encounter.

(b) In the course of dispersal of unlawful assembly.

(c)  In the course of affecting arrest.

(iv)  Brief facts of the incident.

(v)  Criminal Case No.

(vi)  Investigating Agency.

(vii) Findings of the Magisterial Inquiry/Inquiry 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.

 

(11) 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.

(12) 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 Code must be applied.

(13) 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.

(14) 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.

(15) 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 officers is established beyond doubt.

(16) 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.

Issued in People’s Union for Civil Liberties and Another Vs State of Maharastra and Others (CRIMINAL  APPEAL NO.1255 OF 1999)

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Supreme Court directives regarding arrest of accused by police for offences punishable with seven years imprisonment or less

July 3, 2015
Supreme Court Guidelines regarding arrests of the accused by the police in cases punishable with 7 years imprisonment or less issued Arnesh Kumar Vs. State of Bihar and Another (Criminal Appeal No. 1277 of 2014):
1.All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41Cr.PC;
2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
9. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
10. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

Supreme Court sets out guidelines to make police accountable for fake encounters

September 23, 2014

From THE CITIZEN

Supreme Court of Inda

Supreme Court of Inda

NEW DELHI: In an environment where fake encounters are increasingly rapidly, as are deaths in police custody, the Supreme Court has sought to restore a level of accountability by issuing a set of directives aimed at ensuring proper investigation and punitive action as and where necessary. In doing so it has sought to take away the power of trial and execution from the forces with the gun and bring it back into the courts and concerned institutions.

The court has directed the police to keep a record—in writing or electronic—of intelligence inputs received about terrorists before going after them, And if the encounter leads to death, the police will now have to file a FIR immediately and ensure a proper, independent enquiry by a valid source that was not involved in the operations.

A bench headed by Chief Justice RM Lodha has also said that the weapons used in the encounter should be surrendered for ballistic tests. Investigation into these encounters will now have to be investigated by the state criminal investigation department or officers from another area of jurisdiction and not by anyone involved in the raid as has often happened in the past.

The court has said that police bravery awards for such encounters should not be rushed into, and that a policeman’s bravery has to be proven before honours can be conferred on him. Several ‘encounter specialists’ as human rights activists describe them have received gallantry awards for the same in the past along with handsome financial rewards.

The court has also made it mandatory for the information of an encounter to be sent to the National Human Rights Commission along with a status report on the investigation undertaken, every six months.

The court also said that police bravery awards for such encounters should not be rushed into, and that a policeman’s bravery has to be proven before honours can be conferred on him. Several ‘encounter specialists’ as human rights activists describe them have received gallantry awards for the same.

The court has intervened following a Public Interest Litigation filed by the People’s Union for Civil Liberties’ (PUCL) which had said that officers should not be promoted or rewarded for encounter killings until investigations were complete, and that independent enquiries under independent agencies should be instituted. The Supreme Court has ruled in favour of the litigation except that it has made it clear that the National Human Rights Commission should not intervene unless it was absolutely necessary.

In ten years from 2002 till 2014 India reported 1788 encounter deaths although activists insist that the figures are fudged as the police and authorities do not admit to encounter killings in the first place, and hush up the matter more often than not. Even so the National Human Rights Commission taking cognisance of the official statistics found that the highest number of encounters had been reported from Uttar Pradesh, 743, followed by Assam, 273, Andhra Pradesh, 101 and Maharashtra 88. Despite the high profile encounter killings in Gujarat with several cases still in courts the statistics from this state are on the low side, registering just about 12 fake encounter deaths since 2002. The Ishrat Jahan encounter case is still facing trial in the courts. Delhi has a higher number, with 55 encounter deaths to its dubious credit with the Batla House encounter seen as a landmark in the capital’s history.

Human rights activists have been agitating constantly against encounter deaths and about the attitude of the police and state governments that look at these as “justified.” There is an unwritten policy justifying these with the tacit support of not just the police system, but also the politicians and the bureaucrats. Political pressure is seen as one of the causes behind fake encounters with state leaders and others having their own list of ‘criminals’ to be so eliminated by the police.

On the record all agree that fake encounters are “reprehensible” but little has been done at the level of the legislature and the executive to check this practice that has grown over the years. In insurgent prone areas like the Maoist belt, the north eastern states and Jammu and Kashmir these are accepted practice, and are seen as “instant justice” under which the army, police, paramilitary and of course the concerned governments have complete impunity.

This despite the fact that the judiciary sees this, as it has endorsed now, as legally impermissible. Chaman Lal and Savita Bhakhry, the two authors of a 2013 NHRC journal, said: “Fake encounters are considered an operational necessity, legally impermissible, but morally justified by most police personnel. Fake encounters are occurring with such sickening frequency that occasional reports of genuine encounters are viewed with suspicion.”

There is no place in the legal system for exceptions to the rule that everyone is honest until and unless proven guilty. Encounters allow the forces with the gun to become the dispensers of justice without a trial.

Read the full text of the order  here or here