Police Encounter Rules in India

Today the police encounter has become one of the threats among criminals as well as to society. There are many reasons behind the encounter, sometimes encounter are done in the good faith or private defence of the police officials and sometimes it can also be done for their personal benefits such as for their publicity, shifting and for gain the crown of an “Encounter Specialist”, or under political issues and pressures.

Recently, due to an increase in growing numbers of crimes against women, the encounter of four accused of a rape case in Hyderabad District of Telangana takes a new turn as it is welcomed by the society as well as the public figure. But it also intrudes the Right of Livelihood of accused. Due to which the question has also been raised about the constitutional validity of encounters and how the speedy justice to the victims takes place.

The state cannot violate the Right of Life and Personal and if he does so then there is a breach of Article 21 of the Indian Constitution.

There is also a legal framework for the protection of an encounter. We can view or decides from most of the cases, the encounter takes place for self-defence and under Section 96 of the Indian Penal Code every human being has the right to a private defence which is a natural and an inherent right.

Under Section 100 of IPC exception, 3 of Section 300 of IPC, Section 46 of the Code of Criminal Procedure lays down a similar provision concerning investigations in extrajudicial killings and cases.1

For the Safeguard of accused and criminals, the Supreme Court, as well as the NHRC, lays down certain rules regarding the police encounters. They are described as n follows: –

Supreme Court Guidelines on police encounter:-

There are 16 guidelines laid down by the Supreme Court regarding police encounters. They are described as follows2: –

• Whenever the police receive any information regarding criminal activities, they must have to keep recorded either in writing or electronic form and that recording need not reveal the details of the suspect.

• If the police use firearms and this results in the death of a person then FIR must be registered and presented before the court without any delay.

• The investigation must be done by an independent CID team or a police team of another police station under the guidance of a senior officer. It includes a minimum of eight investigation requirements like the identity of victims, recovery and preserves evidence, identifies scene witnesses, etc.

• There must be a magisterial inquiry into all cases of encounter and reports must be submitted to Judicial Magistrate.

• There must be a facility of medical aid provided to the injured victims and the medical officer or Magistrate must record his statement attached with a fitness certificate.

• The FIR and all the evidence must be forwarded to the court without any delay.

• The next of kin must be informed earlier, in the case of the death of the accused criminal.

• The DGP must submit the bi-annual statement of encounter killings to NHRC.

• The disciplinary action must be taken against the police officer if found guilty or make a fake encounter,

• According to Section 357-A of Cr. P.C. the compensation must be given to the dependants of the victim as prescribed in the Section.

• According to Article 20 of the Indian Constitution, the concerned police officers must surrender their weapons for forensic and ballistic analysis.

• There must be provided of legal aid to accused police officer’s families, offering him lawyers or counsellors.

• No promotions or instant gallantry awards shall be given to the concerned officers related to the incident of encounter.

• If the family of the victims finds that the above procedure has not been followed, then it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident and the concerned Judge must look into the merits of the complaints.

• The court stated that these requirements must be strictly observed in all cases of death and grievous injury in police encounters by treating them as the law declared under Article 141 of the Indian Constitution.

NHRC Guidelines:-

The issue regarding fake encounter was raised in March 1997, then the Justice M.N. Venkatachaliah stated two circumstances under which the police have not to be liable for the offence. They were3: –

• If the death is caused for the exercise of private defence,

• And according to Section 46 of the CrPC that authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.

And in the year 2010, NHRC extended these guidelines and includes the following rule: –

• An FIR must be registered under appropriate sections of IPC if the complaint is made against the police alleging of culpable homicide.

• Within three months the magisterial enquiry must be held in all cases of death which occurs during the course of police action.

• All cases of deaths in police action must be reported to the state NHRC commission by the Senior Superintendent of Police within 48 hours of such death.

• All the information of the second report including post mortem report, findings of the magisterial enquiry or enquiry made by the senior officers must be sent to the NHRC Commission within three months.

The Supreme Court also laid that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not proper and biasness happens.

Conclusion:

These types of cases are not committed daily, they are rare in number and that cases are those where there is public outrage due to the evil nature of the crime committed. The police officers are also educated, trained and are aware of the constitutional rights available to the citizens. It cannot be assumed that it is a fake encounter unless an objective inquiry is conducted in light of the Supreme Court guidelines.

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