Note: NHRC's recommendations for compensation in the fake encounter case of May, 2006 in Delhi is a welcome step.
An inquiry conducted by Delhi Government officials on the directions of the NHRC reached the conclusion that a CBI enquiry be carried out because it was conclude that "there is ample material on record which creates reasonable doubt about the genuineness of the encounter by the special cell of the Delhi Police."
The question which remains unanswered is how to fix institutional accountability and make the senior officials liable for their acts of omission and commission in these matters. A lot has been said about the fake encounters in Gujarat. The political liability for this encounter clearly lies with the Indian National Congress led government at the centre and in Delhi State. Now it is for Najeeb Jung, Lt Governor of Delhi to recommend a CBI inquiry in the aftermath of NHRC's recommendation that indicts Delhi Government and Ministry of Home Affairs in the matter.
The encounter in question happened during the tenure of Shivraj Patil as Union Minister for Home Affairs from 22 May 2004 to 30 November 2008, when V K Duggal was the Home Secretary from March 2005 to 31 March 2007 and when K K Paul was the Commissioner of Police of Delhi from February 2004 to July 2007. Shivraj Patil is currently the Governor of the state of Punjab and Administrator of the Union Territory of Chandigarh. Duggal retired as Union Water Resources Secretary. K K paul is currently the Governor of the Meghalaya.
It may be recalled that NHRC had made a similar recommendation sin the matter of fake encounter in Uttar Pradesh in October 1998. It had recommended the payment of compensation of Rs. 4,00,000 each to the next of kin/families of each of the victims.
Being deeply concerned by complaints of fake encounters, NHRC has laid down the procedure to be followed in all cases of encounters in its directions in a complaint brought before the NHRC by the Andhra Pradesh Civil Liberties Committee. That procedure, which was spelt out in a letter dated 29 March 1997 from the then Chairperson of the NHRC to the Chief Ministers of all the States and Union Territories commended the following steps: "A. When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register. B. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom. C. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the State CID. D. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation."
Bihar Human Rights Commission (BHRC) too should examine both old and new cases where allegations of fake encounter have been made and consider the recommendations of NHRC in this regard. Has BHRC detected any such encounter so far?
Gopal Krishna
BiharWatch
New Delhi: 7th March, 2014
The National Human Rights Commission has severely indicted the Union Ministry of Home Affairs, the Delhi Government and the Delhi Police for their responses to its notices in connection with an encounter in the National Capital in which five persons were killed on the 5th May, 2006. On the basis of the material on record, the Commission has found the encounter doubtful and has recommended Rs.5 lakh each to the next of kin of five persons killed in the encounter. The Commission had registered case No. 8323/24/2006-2007 on the basis of an intimation received from the father of one of the victims.
This self-serving evasiveness of the Delhi Police is supported by the Union Ministry of Home Affairs, though it is the Nodal Ministry for the protection of human rights in India. This is a sad reflection on the Delhi Police and on the Ministry's understanding of its responsibilities on human rights. In this case, as usual, no magisterial enquiry was held.
The Commission has set aside the contention of the Union Home Ministry that "the Delhi Police have amply proved that the encounter was genuine and therefore no justification for the relief". It has held this response to its show cause notice as an extra-ordinary assertion made without any mooring in facts. The Commission said that it was unable to understand how the Ministry of Home Affairs claimed "the Delhi Police has managed to prove that the encounter was genuine".
The Commission has also deplored the "intransigence of the authorities concerned for refusing to accept its recommendation to hold a CBI enquiry in this case" which, it felt was essential.
The Commission has further observed that in 2003, it had issued guidelines to all States to hold magisterial enquiries in the aftermath of any encounter wherein there was a loss of life. All State Governments have accepted these guidelines and act on them.
The egregious exception is in the National Capital Territory, where the Delhi Police, which appears to be deeply apprehensive of any impartial scrutiny of its actions, opposes magisterial enquiries and has an extra-ordinary veto on these decisions.
There was total non-cooperation from the Government of Delhi. The police did not forward all the relevant documents to the Commission such as seizure memo of the articles recovered from the scene of occurrence and map of the scene of occurrence. There was no explanation for non-collection of scientific evidence. During the course of enquiries, the Commission found that the encounter happened in Yamuna Khadar area by the Delhi Police which was provided assistance from the Uttar Pradesh Police.
The Commission, therefore, had to use its powers u/s 13 (1) (e) of the Protection of Human Rights Act to direct the District Magistrate, North East Delhi, to conduct an enquiry. This enquiry, diligently conducted by a senior officer of the Government of the National Capital Territory of Delhi, recommended that a CBI enquiry be carried out, having come to the conclusion that "there is ample material on record which creates reasonable doubt about the genuineness of the encounter by the special cell of the Delhi Police".
The Delhi Police also did not answer any of the points raised by the Commission. It is a travesty, therefore, for the Delhi Police and the Ministry of Home Affairs to claim that it had been proven that the encounter was genuine.
The other claim made by the Ministry of Home Affairs was that the persons who were killed had serious criminal records. The Commission reminds the Ministry that, under the law, criminals cannot be summarily executed. It was for the police to establish that these men were killed in the exercise of the right of self-defense. This they have failed to do.
The Ministry has put forward the absurd argument that "providing relief to the next of kin of such dreaded criminals would amount to providing incentive for such criminal activities and send a wrong signal". The Commission reminds the Ministry that the only criminal activity that has been plausibly established in this case is the murder of five men by policemen appointed to uphold the law, not to break it.
Secondly, the relief is to be provided to the next of kin of men who were killed. The Commission fails to understand how this would be an incentive to the criminals. If the relief is an incentive, from the Ministry's argument, it would follow that more criminals would allow themselves to be executed by the police, in the hope that their families might receive some relief thereafter.
Therefore, the Commission has held that it was unable to accept the specious arguments put forward by the Ministry of Home Affairs. It maintains that a grievous violation of human rights was committed, for which the Government of India should make reparations. Therefore, it has recommended that Rs. 5 lakhs each be paid to the next of kin of the late Ayub, Babu, Sanjay, Aslam and Manoj. Proof of payment is to be submitted by the 17th April, 2014.
Year 1999-2000
Killing of four persons in a fake encounter by police, U.P. (CASE NO:12235/24/98-99)
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Shri Panna Lal Yadav, a resident of Village Daulatiya, District Varanasi, Uttar Pradesh, first by means of a telegram dated 19 October 1998 then through a longer complaint, alleged that his son Om Prakash and three others had been killed by the police in a fake encounter on 17 October 1998.
The SP, Sant Ravi Das Nagar, through a communication dated 18 October 1998 also informed the Commission that four criminals had been killed in an encounter with the police in the area of Police Station, Bhadoi on 17 October 1998. It was reported that secret information had been received by the Police that, on 17 October 1998, one Dhanjay Singh, a dreaded criminal carrying a reward of Rs. 50,000/- on his head, would commit a dacoity at the petrol pump of one Satyanarayan Harsh on the Mirzapur-Bhadoi Road.
Accordingly, Shri Akhilanand Misra, Circle Officer, Bhadoi constituted three teams to track down the criminals and proceeded to the spot. At about 11.30 am, the police found four persons coming towards the petrol pump who, on seeing the police party, ran away and took shelter in the nearby bushes. They indiscriminately started firing at the police party who returned fire. After 15 minutes of firing, the police party at the site found four dead bodies, including one of the dreaded criminal, Dhanjay Singh, the son of the complainant.
The Commission found the police version unconvincing and therefore, ordered its own Investigation Wing to look into the matter. Accordingly, a team headed by a Deputy Superintendent of Police conducted an inquiry. That report indicated that the alleged encounter was a fake one. The SP, Sant Ravidas Nagar also stated that a magisterial enquiry had been ordered into the matter by the District Magistrate and the State Government had ordered the Crime Branch Central Investigation Department (CBCID) to conduct an inquiry.
On the basis of the enquiry of the CBCID, a case was subsequently registered against 36 persons including 34 police officials. The CBCID inquiry, on the basis of evidence, opined that the encounter on 17 October 1998 was a fake one and that, in fact, four innocent persons had been taken out by the police from a nearby hotel and later brutally killed.
The Commission ordered, by way of immediate interim relief, the payment of compensation of Rs. 4,00,000 each to the next of kin/families of each of the victims, namely, Shri Om Prakash alias Munna Yadav, Ajay Kumar Singh, Krisan Harijan and Shamim Natte. The Commission ordered that, in each instance, Rs. 50,000/- should be paid in cash and the remaining amount of Rs. 3,50,000/- should be put in a fixed deposit for five years in the name of next of kin of the victim in a Nationalised Bank, the interest on which should be paid at quarterly intervals to the next of kin. The Commission also recommended to the Government of UP that the CBCID enquiry should be completed expeditiously and a chargesheet filed in the competent court of law for the prosecution of the accused persons. The Commission has received a report from the Government of Uttar Pradesh stating that of Rs. 4,00,000/- recommended by the Commission, Rs. 2,00,000/- has been paid to each of the families of four victims.
The Commission has since been informed by the Government of Uttar Pradesh that the State CID has finalised its enquiry and has sought the State Government's approval for the prosecution of 34 police officials involved in the case. In addition, departmental action is also being taken against 42 police personnel found guilty of various acts of commission and omission in the matter.
COMMENT
The law in India recognizes the right of a citizen to private defence and in the course of such private defence even the causing of death can be justifiable in some circumstances. The same right of self-defence is available to a policeman. In addition, the use of force if it results in causing of death in the course of an attempt to arrest a person accused of an offence punishable with death or imprisonment for life, can also be justifiable under law. However, if a death is caused in an ecounter that cannot be justified on the ground of a legitimate exercise of the right to private defence, or in proper exercise of the power of arrest under Section 46 of Criminal Procedure Code, the police officer causing the death would be guilty of the offence of culpable homicide. Whether the causing of death in the encounter in a particular case is justified will therefore depend upon the facts established after a proper investigation.
Deeply concerned by complaints of fake encounters, the Commission laid down the procedure to be followed in all cases of encounters in its directions on complaint No.234 (1 to 6)/93-94 brought before the Commission by the Andhra Pradesh Civil Liberties Committee. That procedure, which was spelt out in a letter dated 29 March 1997 from the then Chairperson of the Commission to the Chief Ministers of all the States and Union Territories commended the following steps:
"A. When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.
B. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom.
C. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the State CID.
D. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation." Information being published on NET.
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