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In failing to follow SC Guidelines on Encounters, has MP Govt committed Contempt of Court?

Sarim Naved 05 Nov 2016
The recent purported encounter in Bhopal of eight men who were undergoing trial in cases related to accusations of participation in terrorist activities is not merely one more encounter in the long history of such dubious encounters. This encounter is made more disturbing by the fact that the State government and its chief functionaries did not really seem interested in claiming that the encounter was genuine but seemed more interested in boasting that their police had carried out an act of justice, the process of law and governance be damned.

Bhopal encounter SIMI undertrial
Image credit: Hindustan Times

Much has been said about this alleged encounter. The videos and witness testimonies are in the public domain and need no further comment. What needs further and continuing commentary is, however, the subsequent attitude of the State government. The State government, despite evidence that raised serious doubts about the police version, chose to declare that the encounter needed no inquiry, that the police had done an absolutely fine job and further that terror accused (or terrorists, as the State government and wide swathes of the media have christened them) need not be given much heed to as they while away their time in jail, eating chicken biryani. At a crucial stage of events, the State government and the Chief Minister chose political pandering over political responsibility. This is, unfortunately, a state of events that has become all too common.

In doing what they have done over the past week, the Madhya Pradesh government may, however, have committed an act much more serious than displaying crass opportunism. In refusing to (initially) order an inquiry, in not ordering an immediate investigation with the State CID and also in announcing a reward for the police personnel involved in the alleged encounter, the State Government has deliberately refused to follow the directions of the Supreme Court regarding encounter cases and the necessary steps that have to be taken thereto. This two-year old judgment of the Supreme Court was pronounced in a petition by the People’s Union for Civil Liberties where the Court has laid down, in detail, the steps that must be taken in case of an alleged. Encounter. The Judgement can be read here.

These steps are, as per the Court, are to be strictly followed and "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". These guidelines are many, but the main guidelines are as follows:

1. If there is a secret tip-off/information, the same must be reduced to writing in the police diary so that if there is an eventual encounter, the truth of the police claim of a tip-off can be judged. In the instant case, there is no information as to whether this was followed.

2. If the there is a killing pursuant to an ‘encounter’, the Supreme Court says where “the 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." This FIR shall then be investigated by the state CID or a team from another police station by a police officer to the head of the police party who headed the encounter. This has not been done.

3. Weapons used in the encounter have to be surrendered for investigation. The Court states that "The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other 31 material, as required by the investigating team, subject to the rights under Article 20 of the Constitution." Since no investigation is happening, this has clearly not been done.

4. "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." Rewards have already been announced for members of the police party.

5. Post mortem has to be videographed and carried out by two doctors. No information if the same has been done.

6. A magisterial inquiry must be conducted and the NHRC must be involved if there are doubts about the impartiality of the investigation. A judicial inquiry has been ordered after much delay but a judicial inquiry finds no mention in the Supreme Court’s formulation of response to an encounter case.

The Supreme Court had made it very clear that these guidelines were binding and that they were to be implemented by all the states. Flagrant disregard of the Court’s order, specifically the act of avoiding investigation and announcing rewards for the police personnel involved in the encounter, could amount to contempt of court. Whether or not it amounts to contempt of court is, of course, a matter best left to the Supreme Court itself but it is obvious that the State Government, its minsters and the chief ministers could not be bothered to even show a modicum of respect to the Supreme Court’s judgment. This is a disturbing development and all the more necessary to be highlighted frequently and clearly, to show the government’s disregard for the Constitution of India.
 
 *Afternoon news on Friday said that a judicial probe had been ordered.



(Sarim Naved is a Delhi-based lawyer.)

In failing to follow SC Guidelines on Encounters, has MP Govt committed Contempt of Court?

The recent purported encounter in Bhopal of eight men who were undergoing trial in cases related to accusations of participation in terrorist activities is not merely one more encounter in the long history of such dubious encounters. This encounter is made more disturbing by the fact that the State government and its chief functionaries did not really seem interested in claiming that the encounter was genuine but seemed more interested in boasting that their police had carried out an act of justice, the process of law and governance be damned.

Bhopal encounter SIMI undertrial
Image credit: Hindustan Times

Much has been said about this alleged encounter. The videos and witness testimonies are in the public domain and need no further comment. What needs further and continuing commentary is, however, the subsequent attitude of the State government. The State government, despite evidence that raised serious doubts about the police version, chose to declare that the encounter needed no inquiry, that the police had done an absolutely fine job and further that terror accused (or terrorists, as the State government and wide swathes of the media have christened them) need not be given much heed to as they while away their time in jail, eating chicken biryani. At a crucial stage of events, the State government and the Chief Minister chose political pandering over political responsibility. This is, unfortunately, a state of events that has become all too common.

In doing what they have done over the past week, the Madhya Pradesh government may, however, have committed an act much more serious than displaying crass opportunism. In refusing to (initially) order an inquiry, in not ordering an immediate investigation with the State CID and also in announcing a reward for the police personnel involved in the alleged encounter, the State Government has deliberately refused to follow the directions of the Supreme Court regarding encounter cases and the necessary steps that have to be taken thereto. This two-year old judgment of the Supreme Court was pronounced in a petition by the People’s Union for Civil Liberties where the Court has laid down, in detail, the steps that must be taken in case of an alleged. Encounter. The Judgement can be read here.

These steps are, as per the Court, are to be strictly followed and "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". These guidelines are many, but the main guidelines are as follows:

1. If there is a secret tip-off/information, the same must be reduced to writing in the police diary so that if there is an eventual encounter, the truth of the police claim of a tip-off can be judged. In the instant case, there is no information as to whether this was followed.

2. If the there is a killing pursuant to an ‘encounter’, the Supreme Court says where “the 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." This FIR shall then be investigated by the state CID or a team from another police station by a police officer to the head of the police party who headed the encounter. This has not been done.

3. Weapons used in the encounter have to be surrendered for investigation. The Court states that "The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other 31 material, as required by the investigating team, subject to the rights under Article 20 of the Constitution." Since no investigation is happening, this has clearly not been done.

4. "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." Rewards have already been announced for members of the police party.

5. Post mortem has to be videographed and carried out by two doctors. No information if the same has been done.

6. A magisterial inquiry must be conducted and the NHRC must be involved if there are doubts about the impartiality of the investigation. A judicial inquiry has been ordered after much delay but a judicial inquiry finds no mention in the Supreme Court’s formulation of response to an encounter case.

The Supreme Court had made it very clear that these guidelines were binding and that they were to be implemented by all the states. Flagrant disregard of the Court’s order, specifically the act of avoiding investigation and announcing rewards for the police personnel involved in the encounter, could amount to contempt of court. Whether or not it amounts to contempt of court is, of course, a matter best left to the Supreme Court itself but it is obvious that the State Government, its minsters and the chief ministers could not be bothered to even show a modicum of respect to the Supreme Court’s judgment. This is a disturbing development and all the more necessary to be highlighted frequently and clearly, to show the government’s disregard for the Constitution of India.
 
 *Afternoon news on Friday said that a judicial probe had been ordered.



(Sarim Naved is a Delhi-based lawyer.)

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