After the alleged encounter in Hyderabad that killed the suspects in Disha murder case, the NHRC has recommended an independent investigation into the case.

Do cops have license to kill What SC and NHRC guidelines on encounters say
news Human rights Saturday, December 07, 2019 - 17:54

Opinions stand divided on the death of the four accused in the rape and murder of Disha, who were killed in an alleged “retaliatory firing” by the Hyderabad police on Friday morning. Though the investigation team, led by Cyberabad police commissioner VC Sajjanar, claimed in a press conference that the killings were in self-defence, critics have expressed their reservations on the police's explanation and also on people applauding the deaths.

Andhra Pradesh, later bifurcated into Telangana, has a notorious history of extra judicial killings in which numerous Maoists, tribals and gangsters like Nayeem have been killed during their “attempts to escape” from the hands of the police.

VC Sajjanar, known as the “encounter cop”, was responsible for the killing of three men in Andhra Pradesh in 2008. He had said that the three, who were accused of throwing acid on the faces of two women, had to be shot dead by the police in self-defence. Parallels can be drawn between both cases- the manner in which the accused were taken to the crime spot for recreating the crime scene and later cops shooting them down in an alleged crossfire.

The National Human Rights Commission (NHRC) on Friday recommended for an independent investigation and said the police were not “properly alert” and were not “prepared for any untoward activity” which resulted in the death of all four accused on Friday morning.

When is the killing of a suspect or accused justified? Are police officers immune to legal action if there is lack of circumstantial evidence justifying the encounter? Here is what the NHRC and Supreme Court (SC) guidelines say:

Do police have the right to take lives? The police have not been conferred any right to take someone's life except under two circumstances:

1.       If the death is caused by the right to private defence and the police is attacked by the suspects.

2.       Using force, extending up to the causing of death, necessary to arrest the person accused of an offence punishable with death or imprisonment for life.

NHRC guidelines in 2010 say that if the use of force cannot be justified and the death falls outside the jurisdiction of the above mentioned, it is a crime and the police officer would be guilty of culpable homicide. 

Who investigates the case? In its judgement in September 2014 on the People's Union for Civil Liberties (PUCL) vs government of Maharashtra, the Supreme Court laid down certain guidelines. 

An FIR should be immediately filed by the police at the police station concerned based on the information received. Since the police officers at the station are a party to the encounter, it is appropriate for an outside agency such as the state CID or officers from another police station to investigate the case. A magisterial inquiry must be held in the case, preferably in a span of three months and the report should be handed over to the judicial magistrate. Prompt disciplinary action should be taken against the police officers found guilty.

What’s the role of NHRC? The SC guidelines say that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not impartial. However, it says that within 48 hours of the encounter, a preliminary report should be sent to the commission with the briefs of the incident. A second report should be sent to the NHRC with details of post-mortem, inquest report, magisterial enquiry and results from forensic and ballistic experts, within three months of the encounter.

Are cops involved in encounters worthy of praise and rewards? No. No promotions or gallantry awards should be presented to the officials who were a part of the encounter immediately after the incident. Rewards should be given only when the gallantry of the officer is established beyond doubt.

What recourse do families have? If any of the above procedures are not followed, families of victims who died in the encounter can approach a Sessions Judge asking for a probe, say the guidelines. 

What if the police personnel are found guilty? The police personnel will be charged under Section 299 of the Indian Penal Code for culpable homicide. Compensation should be granted to the kin of the deceased in case the police officers are prosecuted on the basis of investigation.

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