In light of the above discussion and having regard to the
directions issued by the Bombay High Court, guidelines issued by NHRC,
suggestions of the appellant – PUCL, amicus curiae and the affidavits filed
by the Union of India, State Governments and the Union Territories, we
think it appropriate to issue the following requirements to be followed in the
matters of investigating police encounters in the cases of death as the
standard procedure for thorough, effective and independent investigation:
(1) Whenever the police is in receipt of any intelligence or tip-off
regarding criminal movements or activities pertaining to the
commission of grave criminal offence, it shall be reduced into writing
in some form (preferably into case diary) or in some electronic form.
Such recording need not reveal details of the suspect or the location
to which the party is headed. If such intelligence or tip-off is
received by a higher authority, the same may be noted in some form
without revealing details of the suspect or the location.
(2) If pursuant to the tip-off or receipt of any intelligence, as
above, encounter takes place and firearm is used by the police party
and as a result of that, death occurs, an FIR to that effect shall be
registered and the same shall be forwarded to the court under
Section 157 of the Code without any delay. While forwarding the
report under Section 157 of the Code, the procedure prescribed
under Section 158 of the Code shall be followed.
(3) An independent investigation into the incident/encounter shall
be conducted by the CID or police team of another police station
under the supervision of a senior officer (at least a level above the
head of the police party engaged in the encounter). The team
conducting inquiry/investigation shall, at a minimum, seek:
(a) To identify the victim; colour photographs of the victim
should be taken;
(b) To recover and preserve evidentiary material, including
blood-stained earth, hair, fibers and threads, etc., related to the
death;
(c) To identify scene witnesses with complete names,
addresses and telephone numbers and obtain their statements
(including the statements of police personnel involved) concerning
the death;
(d) To determine the cause, manner, location (including
preparation of rough sketch of topography of the scene and, if
possible, photo/video of the scene and any physical evidence) and
time of death as well as any pattern or practice that may have
brought about the death;
(e) It must be ensured that intact fingerprints of deceased
are sent for chemical analysis. Any other fingerprints should be
located, developed, lifted and sent for chemical analysis;
(f) Post-mortem must be conducted by two doctors in the
District Hospital, one of them, as far as possible, should be Incharge/
Head of the District Hospital. Post-mortem shall be videographed
and preserved;
(g) Any evidence of weapons, such as guns, projectiles,
bullets and cartridge cases, should be taken and preserved.
Wherever applicable, tests for gunshot residue and trace metal
detection should be performed.
(h) The cause of death should be found out, whether it was
natural death, accidental death, suicide or homicide.
(4) A Magisterial inquiry under Section 176 of the Code must
invariably be held in all cases of death which occur in the course of
police firing and a report thereof must be sent to Judicial Magistrate
having jurisdiction under Section 190 of the Code.
(5) The involvement of 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 NHRC or the State Human Rights Commission, as the case
may be.
(6) The injured criminal/victim should be provided medical aid and
his/her statement recorded by the Magistrate or Medical Officer with
certificate of fitness.
(7) It should be ensured that there is no delay in sending FIR,
diary entries, panchnamas, sketch, etc., to the concerned Court.
(8) After full investigation into the incident, the report should be
sent to the competent court under Section 173 of the Code. The trial,
pursuant to the chargesheet submitted by the Investigating Officer,
must be concluded expeditiously.
(9) In the event of death, the next of kin of the alleged
criminal/victim must be informed at the earliest.
(10) 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 to NHRC by 15th day
of January and July, respectively. The statements may be sent in the
following format along with post mortem, inquest and, wherever
available, the inquiry reports:
(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths:
(a) Self defence in encounter.
(b) In the course of dispersal of unlawful
assembly.
(c) In the course of affecting arrest.
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial Inquiry/Inquiry by
Senior Officers:
(a) disclosing, in particular, names and
designation of police officials, if found responsible
for the death; and
(b) whether use of force was justified and action
taken was lawful.
(11) If on the conclusion of investigation the materials/evidence
having come on record show that 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.
(14) An intimation about the incident must also be sent to the
police officer’s family and should the family need services of a
lawyer / counselling, same must be offered.
(15) No out-of-turn promotion or instant gallantry rewards shall be
bestowed on the concerned officers soon after the occurrence. It
must be ensured at all costs that such rewards are
given/recommended only when the gallantry of the concerned
officers is established beyond doubt.
(16) If the family of the victim finds that the above procedure has
not been followed or there exists a pattern of abuse or lack of
independent investigation or impartiality by any of the functionaries
as above mentioned, it may make a complaint to the Sessions
Judge having territorial jurisdiction over the place of incident. Upon
such complaint being made, the concerned Sessions Judge shall
look into the merits of the complaint and address the grievances
raised therein.
32. The above guidelines will also be applicable to grievous injury
cases in police encounter, as far as possible.
33. Accordingly, we direct that the above requirements / norms
must be strictly observed in all cases of death and grievous injury in police
encounters by treating them as law declared under Article 141 of the
Constitution of India.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1255 OF 1999
People’s Union for Civil Liberties Vs State of Maharashtra
Hon'ble Judges/Coram:
R.M. Lodha, C.J.I. and Rohinton Fali Nariman, J.
Decided On: 23.09.2014
