Police encounters and the fallacy of flower petals

A large number of people cheered for and showered flower petals on the police personnel, who on December 6, 2019 killed in an early morning encounter four people accused of raping and murdering a woman in Hyderabad. But, a commission of inquiry, appointed by the Supreme Court and headed by Justice (retd) V S Sirpurkar concluded after a two-year-long investigation that the encounter was fake and all the 10 police officials involved should be tried under Section 302 (murder) and Section 201 (attempt to tamper evidence) of the Indian Penal Code.

The Special Investigation Team of the Telangana Police, however, reportedly conducted a simultaneous probe and submitted a report, giving clean chit to the cops. The report was submitted to the Telangana High Court. The Supreme Court also sent the report of the commission headed by Justice Sirpurkar to the Telangana High Court. So, the spotlight is on the High Court, which shall examine two contrasting reports on the same encounter.

But will the police officials be ultimately prosecuted? The precedents are not encouraging. The state governments usually block independent inquiry into cases of deaths of police encounters and, when fair investigations expose the reality of such encounters, permissions for prosecution under Section 197 of the CrPC are not provided.

In the killing of Ayub, Aslam, Manoj, Sanjay and Shehzad Babu in an alleged fake encounter by the Delhi Police on May 5, 2006 in the capital, the postmortem report had revealed that the deceased had been physically assaulted before they had been killed by police bullets. The magisterial inquiry and the National Human Rights Commission (NHRC) recommended a probe by the Central Bureau of Investigation (CBI). The Lieutenant Governor of Delhi and the union Ministry of Home Affairs, however, declined permission for a CBI inquiry on the ground that “the said criminals were involved in 74 heinous crimes before (the) said encounter”.

Read | Encounter killings: ‘We want probe by CBI or NIA’

With respect to the death of Ram Darshi, Jitender, Sunder and Parvinder in an encounter with police in Dehradun, Uttarakhand on August 24, 2006, just within 10 hours after an alleged chain snatching, the state government did not allow a CBI probe despite the NHRC’s recommendation for the same.

In connection to the killing of 20 persons in an encounter by the Joint Team of Special Police and Forest Personnel in Seshachalam Forests of Chittoor district in Andhra Pradesh in 2015, the NHRC recorded “the reluctance of the State Government of Andhra Pradesh to share even basic information” with the commission and described the killing as “serious violation of human rights of 20 persons”. An SIT set up by the Andhra Pradesh government filed a closure report citing lack of evidence to prosecute the police personnel. The families have challenged the SIT’s closure report and the case is pending before the Andhra Pradesh High Court.

In the last two decades, from 1 April 2001 to 10 March 2022, the NHRC recorded a total of 3,173 complaints of encounter deaths.

The National Crime Record Bureau’s annual reports from 2005 to 2020 revealed that 1,464 persons died in police custody, but no police personnel were convicted. In custodial death cases, evidence of torture does exist, but in the encounter death cases, it is the police, who are often the executioners, witnesses and complainants. Hence, the conviction rate in encounter killings is unlikely to be better than the custodial deaths.

In a petition filed by the state Civil Liberties Committee, the High Court of Andhra Pradesh delivered its judgment on February 6, 2009, making it mandatory for registration of the FIR “where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defense as the case may be”. The Supreme Court in its judgment in People’s Union for Civil Liberties & Anr Vs State of Maharashtra & Ors on September 23, 2014 overturned the same and merely directed for registration of an FIR. It thus allowed continuation of the current practice of registration of FIR against persons already killed in encounters. The Supreme Court restricted the NHRC’s authority and scope on encounter deaths. The NHRC filed an application on December 1, 2014 before the Supreme Court challenging its judgment and requesting to issue a writ of mandamus directing the concerned governments and police authorities to continue to send the reports or information as per the guidelines issued by it in May 2010. The last hearing in the matter took place on March 23, 2017.

Also Read | 2019 gang rape, subsequent encounter: Punish rogue Hyderabad cops quickly

But the report of the commission headed by Justice Sirpurkar at least revealed that what happened on December 6, 2019 was not at all a heroic act that could earn the police officials flower petals or accolades. The frustration over judicial delay cannot be an excuse for promoting such instant Talibani justice in India. The accused policemen must be tried for murder, if we have to arrest our slide into a lawless society. Justice in this case is as important for the nation as it is for the four accused, who were executed even before being convicted.

(The writer is a human rights activist and the Director of the Rights and Risk Analysis Group)

Deaths in Police Encounters:

813 Cases registered with NHRC between April 2016 to March 2022

1 No. of cases in which disciplinary action initiated against policemen

0 No. of cases in which policemen were prosecuted

The NHRC has recommended total compensation of Rs 7.16 crore in 107 reported cases of deaths in police encounter during the period from 01/04/2016 to 10/03/2022.

The SC has repeatedly said the killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.

In 2014, the SC laid down a detailed guideline as the standard procedure for thorough, effective and independent investigation in case of encounter killings.