Taking cognisance of incidents in which suspects were shot by police in the leg, the Allahabad High Court has said such encounters had “become a routine feature” in Uttar Pradesh and were being executed to “please senior officers or to teach a lesson to the accused”.
Hearing separate bail petitions filed by three persons who were arrested after being shot in the leg in different districts of Uttar Pradesh, the bench of Justice Arun Kumar Singh Deshwal stated, “This Court is frequently confronted with cases where, even in matters involving petty offences such as theft, the police indiscriminately resort to firing by projecting the incident as a police encounter.”
“Such conduct is wholly impermissible, as the power to punish lies exclusively within the domain of the Courts and not with the police. India being a democratic State governed by the rule of law, the functions of the Executive, the Legislature, and the Judiciary are distinct and well defined, and any encroachment by the police into the judicial domain cannot be countenanced,” the court said in its order issued on Wednesday (January 28).
The state Director General of Police (DGP) and the Additional Chief Secretary (Home) were directed by the court to appear through video conferencing on Friday to inform the bench if any oral or written directions were issued to police officers to fire upon the accused in the leg or in the name of police encounters.
The court also had asked to inform whether “a direction is issued to ensure compliance with the directions of the Hon’ble Apex Court in People’s Union for Civil Liberties (PUCL) and another (supra) regarding registration of F.I.R., recording of statements of injured persons, and investigation by officers senior in rank to the head of the police party in cases resulting in death or grievous injury during police encounters.”
The bench was hearing the bail applications of Anas, a resident of Muzaffarnagar, Deepak Lohapita of Jhansi and Raju alias Rajkumar of Mirzapur who were arrested by police after being shot in the leg.
The court clubbed their petitions.
The court further observed in the order, “Neither has the State Government issued any oral or written direction to police officers to teach a lesson to accused persons by firing at their legs, even in cases involving petty offences, nor can such acts be justified on that basis. On the contrary, it appears that certain police officers may be misusing their authority in order to attract the attention of higher officers or to create an impression of public sympathy by portraying incidents as police encounters involving firing upon the accused.”
It added, “Although this Court recognizes that police personnel also have the right of private defence and may use force in appropriate circumstances, it is well settled that where death occurs or grievous injuries are caused to the accused, the procedure mandated by the Hon’ble Apex Court must be strictly followed.”
“It is pertinent to note, for the sake of clarity, that in the present matters no police officer has sustained any injury, which further calls into question the necessity and proportionality of the use of firearms in the alleged encounters,” it said.
The bench issued a list of standard operating procedures (SOPs) in the matters of investigating police encounters in cases of death for a “thorough, effective and independent investigation”.
On Friday, the court granted bail to the three accused after DGP Rajeev Krishna and ACS, Home, Sanjay Prasad appeared before the bench via video conferencing.
The bench in Friday’s order said, “In view of the discussion as well as assurance of the DGP, this Court further directs that in case, it is found that police officer in any district has not followed above mentioned guidelines of the Apex Court laid down in PUCL’s case (supra) regarding police encounter where death or grievous injury occurred, not only the persons who was leading the police team involved in police encounter but District Police Chief whether SP/SSP/Commissionerate Police would be liable for contempt of court apart from disciplinary proceedings instituted by the police department.”
“This Court came across in several cases which prima facie shows that some police officers, who are part of police team involved in police encounter, just to get out of turn promotion or appreciation from the higher authority or to get fame in social media unnecessarily used fire arm and caused fire arm injury on the leg of the accused just below the knee,” the bench said.
The court added, “Such act is not permissible in the eyes of law as the power of punishment to accused is within the domain of judiciary and not in the domain of police. India is a democratic country. It has to be run as per the ethos and directions of the Constitution of India which clearly distinguishes the role of legislature, executive and judiciary. In the garb of appreciation or for other extraneous purposes, police officers cannot be allowed to take the function of judiciary to punish a criminal by unnecessary firing and causing injuries even on non-vital part.”
Key SOPs the bench issued:
— Whenever police receive any intelligence or tip-off on a criminal’s movement or activities pertaining to commission of “grave criminal offence”, it shall be done in writing, preferably in a case diary or in electronic form.
— The involvement of NHRC is not necessary unless there is a 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
— 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 the NHRC by the 15th day of January and July, respectively.
— If on the conclusion of investigation the material/evidence having come on record show the death occurred by use of firearm amounting to offence under IPC, disciplinary action against such officer be initiated promptly and he be placed under suspension.
— Compensation to be granted to the dependents of the victim who died in a police encounter under the relevant scheme.
— No out-of-turn promotion or “instant” gallantry awards be bestowed on the officers concerned soon after such occurrence. It must be ensured that such awards are given/recommended only when the gallantry of officers concerned is established beyond doubt
— If the victim’s family finds the procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality, they may file a complaint with the sessions judge concerned. Then the sessions judge shall look into the merits of the complaint and address the grievances.
