There is a presumption that an accused is innocent until proven guilty. The legal burden of proof rests on the prosecution to prove that the accused is guilty of the offence by adducing credible evidence and proving the same before the court of law. The criminal justice administrative system in India is based on this principle.
When a person is alleged to have committed a crime, the police have the power to register an FIR under Section 154 of the Criminal Procedure Code (CrPC) and commence investigation. In the process of conducting investigation, the investigation officer has the power to arrest the accused. Section 46 of the CrPC stipulates as to how an arrest has to be made. Sub-Section 3 of Section 46 contemplates that nothing in the Section gives a right to cause the death of a person, who is not accused of an offence punishable with death or imprisonment for life. It impliedly means that a right to cause death of a person is given to the police officer in case a person is accused of an offence punishable with death or with imprisonment for life when he is trying to evade the arrest.
Rule of law is the fundamental principle of governance of any civilised liberal democracy. Article 21 of the Constitution of India stipulates that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. It means that if the procedure established by law is followed, deprivation of life or personal liberty is not in violation of Article 21 of the Constitution of India.
The Supreme Court in People’s Union for Civil Liberties and Anr. Vs. State of Maharashtra & Ors, observed that: “Article 21 of the Constitution of India guarantees ‘right to live with human dignity’. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.”
In the recent Hyderabad encounter case, the aspect that has to be seen is as to whether there are circumstances warranting applicability of Section 46(3) of the CrPC. If such circumstances exist, killing of all the four accused by the police is by following due procedure established by law as contemplated under Article 21 of the Constitution and cannot be treated as a fake encounter.
The Supreme Court in the said case observed: “We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in police force. In a society governed by rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done.”
The apex court after taking into consideration the guidelines contained in ‘The United Nations Code of Conduct for Law Enforcement Officers’ (which includes all officers of the law, who exercise police powers) and other international guidelines had formulated 16 guidelines contemplating requirements to be followed in such encounter cases in the course of investigation.
Supreme Court Guidelines
The following are some of the relevant guidelines in this case:
(2) Registration of the FIR. (3) Independent inquiry by CID or police team of other police station. (4) Magisterial inquiry under Section 176 of CrPC. (5) Involvement of the 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 the NHRC or the State Human Rights Commission, as the case may be. (9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest. (11) If on the conclusion of investigation, the materials/evidence having come on record show that the 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.
The State government has already constituted a special investigation team to investigate the encounter case complying with the guideline No. 3 of the Supreme Court. The NHRC need not involve as per guideline No. 5 unless there is serious doubt about independent and impartial investigation. However, in this case, the NHRC is already involved.
Therefore, the entire issue can be resolved if an objective report is prepared by the NHRC and the special investigation team constituted by the State government in the light of the Supreme Court guidelines ascertaining as to whether the investigating police had a right to invoke Section 46(3) of the CrPC.
We come across such cases rarely and that too in cases where there is public outrage due to the heinous nature of the crime committed. The police officers are also trained, educated and are fully aware of the constitutional rights available to the citizens. It cannot be presumed that it is a fake encounter unless an objective inquiry is conducted in the light of the Supreme Court guidelines.
(The author is Advocate, High Courts of AP & Telangana)