One week to the day his men ambushed and killed eight policemen sent to arrest him, Uttar Pradesh gangster Vikas Dubey was killed in an encounter in the early hours of Friday, 10 July. Dubey had been arrested in Ujjain, Madhya Pradesh, and was being transported to Kanpur by the UP police.
According to UP ADG (Law and Order) Prashant Kumar, the incident happened when the car in which he was being transported overturned, after which Dubey grabbed a policeman’s gun and tried to escape.
The killing follows the death of several of Vikas Dubey’s associates in encounters over the past few days as well, including that of Amar Dubey, in similar circumstances – he too was killed when trying to escape police custody after the car he was being transported in had a flat tyre.
As questions begin to be raised by opposition parties over the ‘encounter’, it is clear that an investigation will need to be made into the circumstances of Dubery’s death, as well as those of his associates by the police during their hunt for him.
But how are encounter killings to be investigated in India? Are there any specific laws and guidelines which need to be followed?
SUPREME COURT’S GUIDELINES IN PUCL CASE
In 2014, the Supreme Court of India, in its judgment in PUCL vs State of Maharashtra, laid down 16 guidelines to be followed when it came to investigating encounter killings by the police.
The bench of Justices RM Lodha and Rohinton Nariman noted that that Article 21 of the Constitution – the guarantee that no person shall be deprived of their life or liberty except according to procedure established by law – is applicable to everyone, and that the government does not have the power to violate this.
The judges quoted from previous decisions of the Supreme Court, which had said that: "It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism."
The judges acknowledged that there are also several incidents in which the police are actually attacked, and hence said there was a need for "thorough, effective and independent investigation", in line with India's constitutional guarantees and international legal obligations.
As a result, they laid down the following guidelines:
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 video-graphed 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 15 th 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
In addition to these guidelines specifically on encounter killings, there are two other relevant procedures that need to be followed in a case when someone dies in police custody:
- A magisterial inquiry is mandated under Section 176(1)(A) of the Code of Criminal Procedure. This can’t be some formality by an executive magistrate, but a proper judicial inquiry, along the lines described by the Supreme Court in its PUCL guidelines.
- The National Human Rights Commission (NHRC) has laid down certain guidelines for making video recordings of the post-mortem examinations of any person who dies in police action. While the SC also specified this as part of its 16 guidelines in the PUCL case, the NHRC guidelines have more detail on the kind of photographs which also need to be collected, which can then be used to ascertain if the police account of the incident is genuine (for instance, separate ones of each injury, front and back of body, etc). The video and photographs also then need to be sent to the NHRC, which can then decide if it needs to investigate the killings.
(This article was originally published on 6 December 2019, after all four men accused in the rape and murder of a woman veterinarian in Hyderabad were killed in an encounter with the police in similar circumstances. It has been republished with additional details and context in light of the death of Vikas Dubey.)