The law on Extra Judicial Killings Part- II Teesta Setalvad Published in Rashtriya Sahara, Urdu, May 2015

The law on Extra Judicial Killings

Part- II

Teesta Setalvad

Why do Indian institutions observe the law more in it’s breach? A critical judgement of our Indian Supreme Court makes it mandatory for the law to ensure complete transparency and accountability in the case of brutal acts of killing.

What must be done after the incident of extra-judicial killing?

In September 2014 the Supreme Court of India (in PUCL vs State of Maharashtra ) laid down clear guidelines about the action that needs to be taken in the aftermath of an incident of extra-judicial killing:

a) para 31(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."

So the first requirement is the recording of a First Information Report (FIR) about the incident. At a minimum the FIR must contain- the fact that the 'encounter' took place, where it took place and details of the resultant deaths that occurred. Shockingly, it is common practice for the police, particularly those in the erstwhile undivided Andhra Pradesh to lodge the FIR against the deceased individuals without naming the police personnel responsible for the deaths. However in the PUCL case the Apex Court has clearly directed that the fact of 'homicide/murder' of the deceased be recorded. By implication the names of the police personnel who caused the deaths and the offence of 'homicide/murder' must also be mentioned in the FIR, especially because the identity of the perpetrators is already known.

2) "31(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)."

So the next requirement is that the Investigation Officer must be: 1) from the CID or another Police Station and 2) of a rank higher than that of the person who headed the police party.

3) 31(3)(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."

31(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."

So the next requirement is that the weapons used in the incident must be taken away from the police personnel, preserved and sent for ballistic examination. I am unable to understand the connection with Article 20 as it is about non-self incrimination and protection from double jeopardy. Perhaps readers might like to educate me about this.

4) "31(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."

So in the Telangana case- the inquiry into the murder of the undertrials must be conducted by a Judicial Magistrate under Section 176, CrPC as the deaths occurred in police custody. But in the Andhra case an inquiry under Section 176 may be conducted by any Magistrate from the Executive or by a judicial Magistrate.

5) "31(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."

So in both Telangana and Andhra Pradesh, human rights activists and organisations must watch out for the list of awardees of gallantry or police medals or promotion orders that may be given to the officers involved in the in two incidents in future.

6) 31(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.

There are many more directions in the PUCL judgement. Under Article 142 and 144 of the Constitution they become the law of the land which must be followed scrupulously.

Meanwhile, here are some of the NHRC's guidelines about how post mortem (PM) examination of the bodies of victims must be conducted after incidents of extra-judicial killings occur (2nd attachment):

1) Clothing of the body of the deceased should not be removed by the police or any person. Media reports indicate that the bodies of the victims in the Andhra Pradesh incident had been stripped to their underclothes and their clothes were lying in a heap beside them (See: http://www.tehelka.com/mystery-surrounds-the-killing-of-alleged-20-sandalwood-smugglers/) So the trend of disobeying the law, norms and standards continues after the incident. This is why I have put together these norms and standards.

2) The PM examination must be videographed along with a recording of the voice of the doctor conducting the examination. The Apex Court in the PUCL case has directed that the PM examination must be conducted by two doctors from the District Hospital one of whom should be its head, as far as possible;

3) 20-25 colour photos pf the bodies must be taken from the angles specified by the NHRC. The photography/videography must be done by a person trained in forensic photography and videography;

4) Within 48 hours of such incidents the police must send detailed reports to the NHRC and later on send PM reports, reports of the magisterial inquiry, ballistic examination and most importantly reports containing the names and designations of the officers responsible for the deaths and whether the use of force was justified and the action taken was lawful.

All these directions and guidelines have been laid down and must be followed so that each incident is properly documented, investigated and the guilt of the persons responsible is determined for further action in law.

Finally, as RTI activist Venkatesh Nayak has pointed out, since those killed so brutally and the police are citizens of India, the expenses of the salaries of those who killed are borne by the Indian taxpayer, the sandalwoos trees (centre of the Andhra incident) are also public property, the authorities must release information about each and all of these under the Right to Information Act, 2005!

The central government, under the Regime has virtually rendered paralysed the RTI by not appointing a CIC (Chief Information Commissioner) for months despite recently promising the Delhi High Court that it has! Transparency scares all those in authority making a mockery of democratic and accountable governance.

Ends