In the first incident, Saikul Khan, a 27-year-old recently married youth, was taken into custody by the police in Alwar, Rajasthan. On the 23rd of July, 2023, his family was informed by the police, and upon visiting him, they were met with the shocking discovery of his lifeless body. Saikul was a student preparing for government job exams with no criminal record according to his family.

The family claims that he went missing at night, leaving them clueless about his whereabouts. After about 18 hours, the family received a call from the Cyber Crime cell, informing them that Saikul was involved in a cybercrime case and urging them to come to the police station.

Upon meeting him, the family was shocked to find Saikul gravely injured, and they allege that he had been tortured by the police while in custody. Saikul pleaded with his family members to take him away and prevent his return to custody. The family asserts that Saikul died while in police custody after they met him at the hospital, as reported by Bharat TV.

A #Muslim youth named #SaikulKhan, resident of #Alwar, #Rajasthan, was picked up by #Faridabad police two days ago.

Yesterday, the police called his family members. When the family members went to meet him, they found him dead.pic.twitter.com/EBtPiGlrGC

— Hate Detector (@HateDetectors) July 24, 2023

His loved ones also allege that he was subjected to torture while in custody, which resulted in severe injuries. The family is now seeking justice and demands for an impartial investigation into the events leading to his death rise.

In another heart-breaking incident in Chennai, Sridhar, a 25-year-old Dalit man, died shortly after being questioned by the MGR Nagar police. This marked the third such incident in Chennai in the past two years, further heightening concerns over the treatment of detainees in police custody.

A 25-year-old #Dalit man named #Sridhar died hours after he was questioned by the #MGRNagar police in #Chennai on Thursday, July 13.

In the last two years, this is the third instance in Chennai, where an individual has died hours after police interrogation.#TamilNadu pic.twitter.com/QbN26lh5EW

— Hate Detector (@HateDetectors) July 17, 2023

According to the News Minute, Sridhar passed away only a few hours after being interrogated by the MGR Nagar police in Chennai on the 13th of July 2023. The police initially brought Sridhar in for questioning regarding a theft on 12th July, and requested him to return the following day. Accompanied by his wife, Manju, Sridhar went to the police station on 13th July and returned home around 1:15 pm. However, he soon complained of chest discomfort, and subsequently he was rushed to KK Nagar Government Hospital where he later succumbed to his death. Sridhar was a sanitation worker.

The report by News Minute also notes that Sridhar’s family members want answers about the circumstances surrounding his death and are eagerly waiting for the post-mortem report. The post-mortem was conducted at Rajiv Gandhi Government Hospital and was completed on the 14th of July, 2023.

Meanwhile, the police have made a statement stating that Sridhar experienced seizures which was what led to his death. The police also said that Sridhar was brought to the ESI hospital but was already deceased when he suffered the seizures. His wife Manju has filed a police complaint and an investigation into Sridhar’s death is currently ongoing.

Adding to the grim toll of custodial deaths in India, Hazaribagh, Jharkhand, witnessed the tragic loss of Mohammad Ashfaq Khan. The police deemed Ashfaq Khan suspicious only because he had a previous criminal record, according to his family. The neighbouring family who suspected him of stealing from them has been accused of assaulting him before the police took him into custody. Ashfaq’s family further claims that the police took him into custody without informing them and that he was already injured due to alleged beatings by the family members who suspected him of stealing.

The family further alleges that the police officials left him for dead at the hospital after subjecting him to torture during his detention. In response to mounting pressure, the police have promised an impartial investigation and vowed to take strict action against any officials found culpable, according to a news report by Johar News, Hazaribagh that surface on Twitter in 18th of July, 2023.

Location: Hazaribagh, Jharkhand

Family alleges police of killing Muslim youth named Mohammad Ashfaq Khan in custody.

He was arrested on charges of theft and kept at the police station overnight.

pic.twitter.com/4LZw1BAVhN

— HindutvaWatch (@HindutvaWatchIn) July 18, 2023

These incidents have once again reignited the debate surrounding police brutality and the need for systemic reforms to ensure the safety and fair treatment of detainees. According to a report by Sabrang India, the Ministry of Home Affairs (MHA) reported in the Rajya Sabha that there has been a significant increase in custodial deaths across the country. Over the past three years the number of deaths while in police custody has risen by more than 60%, and in the last two years, the increase has been even more alarming, reaching 75%.

The data has further highlighted specific states where such cases have seen a drastic rise. For instance, in Maharashtra the number of custodial deaths has increased by a staggering ten times, while Kerala and Bihar witnessed a threefold increase. In Gujarat, Uttar Pradesh, and Karnataka the numbers have doubled, and have further raised serious concerns about the treatment of detainees in police custody.

Related

Custodial deaths highest in Gujarat over 5 years; jails overcrowded

Death behind bars: Justice through the Indian Courts as cases spiral

Hyderabad: Muslim man allegedly subjected to custodial torture on “suspicion of theft” for 5 days, dies in hospital

UP: Dalit man allegedly maimed, his pregnant wife beaten by Caste Hindus in Etah

The post Rising Concerns as Incidents of Custodial Deaths of Dalits and Muslims Continue Unabated appeared first on SabrangIndia.

A petition was filed by the deceased victim’s wife[1], Babita praying for an investigation into her husband’s death by the CBI as well as compensation for herself and her children to the tune of Rs. 10 lakhs.

According to Babita Devi’s advocate Shadab Ansari, Umesh Singh was arrested in June 2015 by Pawan Singh, the munshi of the Ghanudih police outpost, at the command of Harinarayan Ram, the officer-in-charge of the Ghanudih Outpost under the Tisra police station in the Jharia block of the Dhanbad district.

Umesh Singh was charged in a case involving protests over the frequent mine blasting that had damaged his home and other structures nearby. The court was informed that Umesh Singh’s body was found nearby Ghanuadih Joria after his family frantically sought him out when he failed to return home the following morning. His body had sustained severe injuries, and he was just wearing underpants, the court was informed. It was also claimed that, as the family confirmed in a video recording, the deceased’s shirt was discovered in the lockup of the police station. Obviously, it appears that this was a case of custodial torture.

At the Jharia police station, Babita Devi filed a FIR against Harinarayan Ram, Pawan Singh, Satendra Kumar, and unnamed police officers; however, the court was informed that the investigating officer failed to record the petitioners’ testimony for more than a year and a half.

Justice delayed is justice denied?

The court in the judgement, acknowledged that fatalities in custody constitute a breach of human rights. It acknowledged that the deceased’s passing away while under the custody of the police constituted a custodial death. This implies that the deceased’s death was caused by the police’s conduct or negligence, which violates his or her right to life, liberty, and the pursuit of happiness.

The Chief Judicial Magistrate’s (CJM) judicial investigation and its conclusions were taken into account by the court. According to the CJM’s inquiry report, the deceased was discovered dead while under police custody, substantiating the accusation of a death in custody. This report was performed by a judicial body and included evidence to support the claims, thus the court gave it considerable weight.

The court also recognised the significance of awarding damages in situations involving custodial deaths. It made reference to a plan outlining the process for allocating compensation in such circumstances. The court emphasised that compensation becomes necessary in proceedings under Article 226 of the Constitution when basic rights are violated. This demonstrates the court’s dedication to making sure the victims or their families receive fair compensation for having their rights violated. The court therefore, awarded the family of the victim 5,00,000 rupees.

The court ensured through its judgement that the situation qualifies for a public remedy. This refers to circumstances where the court utilizes its power under Article 226 of the Constitution to grant appropriate remedies in situations that affect the public more broadly. The court asserted its jurisdiction and authority to pass orders that address the violation of human rights, grant compensation, and ensure accountability in the interest of justice.

The police officers accountable for the death in custody must now face departmental charges, per the court’s directive. Internal disciplinary actions taken by the police department to hold personnel accountable for their conduct or carelessness are known as departmental proceedings. The court emphasized the distinction and independence between criminal and disciplinary proceedings. According to the evidence and circumstances surrounding the custodial death, it was indicated that departmental processes should be started, and if proven guilty, action should be taken against the errant officials. Unfortunately, as is want in such cases, no criminal charges for loss of life have been directed by the High Court.

If the errant police officials are proven guilty, the court permitted the State to reclaim the awarded compensation amount from them. This implies that the State has the power to collect the compensation sum from the police officials if the departmental or criminal processes show their liability. This clause makes sure that individuals accountable for the custodial death bear the financial burden of compensation rather than the State or taxpayers.

Human rights recognition and protection are at the centre of this lawsuit. The intrinsic rights of every person to life, liberty, and dignity are unquestionably recognised by the court. It emphasises how gravely these fundamental rights are violated when people die while they are being held captive. The case draws attention to this problem and highlights the pressing need to protect human rights, especially in the context of interactions between law enforcement and people in detention.

The court’s order to begin departmental procedures against the police officers accountable for the prisoner’s death is a crucial element of this case. This emphasises the urgent requirement to make law enforcement personnel responsible for their acts. By doing this, the court emphasises the idea that no one is above the law, regardless of their status. This ruling sends a strong message that misbehaviour or negligence that results in custodial deaths won’t be allowed and that those accountable must suffer the necessary repercussions.

The pursuit of justice and the defence of human rights continue to be hampered by the distressing reality of custodial deaths, which occurs throughout societies all over the world. Even if the case in question is a recent one, it is important to recognise the vast number of other, very similar cases that have troubled the Indian court system. These examples draw attention to the protracted delays in delivering justice, which cause the relatives of the deceased great damage.

The grief endured by the families left behind is made worse by how long it takes to resolve cases of custodial death. Their anguish is exacerbated, their grief is extended, and their trust in the judicial system is damaged by the drawn-out legal proceedings. It is impossible to emphasise the emotional, psychological, and financial toll that these families have experienced. As time stretches on, their struggle for closure and accountability becomes an enduring battle. 

Other recent custodial death cases

According to data from the National Human Rights Commission (NHRC) and the Union Ministry of Home Affairs, Gujarat has topped the list of Indian states with the most number of custodial deaths during the past five years. According to the official data, Gujarat reported 80 incarceration fatalities during this time, with the numbers rising yearly. Only in 2021–2022 did the state record 24 deaths while in custody.[2]

According to information submitted in the Rajya Sabha by the Ministry of Home Affairs (MHA), there has been a nationwide increase in the number of deaths while under the custody of the police of over 60% over the past three years and 75% over the past two years.

The data also showed that in Maharashtra, the number of such cases increased by a startling ten times, in Kerala and Bihar, by three times, and in Gujarat, Uttar Pradesh, and Karnataka, by two times.[3]

The terrible deaths of a father and son duo while they were being held in jail in Tamil Nadu’s Tuticorin district outraged the country and attracted attention from around the world. The event started when J. Bennix, the proprietor of a small mobile phone store, received a warning from the police for keeping his store open past the curfew set in place because of the COVID-19 outbreak. Bennix allegedly got into a fight with the police, which resulted in the arrest and detention of his father P. Jayaraj.

According to eyewitnesses, Bennix was severely beaten by the police in front of his friends, who were present when the incident occurred. Both the father and the child were covered in blood due to the severity of the assault. According to family members, Bennix endured additional torture, including the insertion of a baton into his anus, which caused uncontrollable bleeding. Jayaraj received numerous shoe-toe kicks to the chest. They were hauled to a magistrate without receiving medical care despite their wounds. The pair was booked into a nearby sub-jail after being accused of several crimes under the Indian Penal Code. However, as their health declined, they were only sent to the hospital after it was already too late.[4]

Police nabbed two people by the names of Vignesh and Suresh on April 18, 2022, while conducting a vehicle check. They were found to be in possession of marijuana and liquor bottles by the police. Doctors declared Vignesh dead the following day, which led to questions regarding the circumstances of his passing. The police said that Vignesh had died due to a seizure, however on investigation it was found that he was mercilessly beaten to death. Six police officers implicated in the death in custody were detained after a comprehensive investigation.

The District Magistrate remanded the accused officials to judicial prison. They were accused of violating both the SC/ST Atrocities Act and Section 302 of the Indian Penal Code, which deals with murder. An autopsy report that revealed numerous injuries and fractures on the body of the 25-year-old victim served as the foundation for the police officials’ arrest. Numerous bruises, especially on the victim’s head, along with deep muscle injuries, swelling, contusions, and wounds on the arms were noted in the report.

This case emphasises the tragic custodial death incident and the subsequent steps taken to conduct an investigation and prosecute those involved. The degree of the victim’s injuries were determined by the autopsy report, which led to questions about police brutality and the demand for accountability in law enforcement. A step has been taken towards addressing the problem and ensuring the victim receives justice with the arrest and charge of the involved police officers.[5]

The list of these cases just go on and on. The NHRC’s figures show a worrying trend of rising deaths while in custody. This information is concerning because Article 21 of the Indian Constitution guarantees everyone the fundamental right to life. The severity of the problem is increased when a law enforcement agency neglects its responsibility to protect life. According to the NCRB’s 2018 prison report, 149 deaths in custody were ascribed to non-natural causes, and some deaths were classified as unknown as a result of insufficient reporting from some states. Suicides made up a sizable fraction of these fatalities, raising concerns regarding whether the prisoners were forced to commit suicide or did so voluntarily to escape additional abuse and torture.

Prisoners’ psychological health is frequently ignored, and there is insufficient psychiatric treatment available to help them deal with the stress and trauma they experience. The poor circumstances inside prisons only make the problem worse. The medical care provided to convicts falls short of acceptable standards, and violent confrontations between prisoners occur often and frequently result in death. Inmates’ physical suffering exacerbates their emotional suffering, which has a detrimental effect on their wellbeing. To defend the fundamental human right to life, state authorities should make sure that these necessities are met.

A person who has been detained shall only be subjected to a reasonable degree of force and should not be restrained longer than is necessary to prevent escape, according to Section 49 of the Code of Criminal Procedure. However, police officers routinely violate these standards and use excessive force. Since the police are frequently in charge of the investigation in situations involving custodial deaths, they have the potential to tamper with the evidence and cover up such incidents on paper.

The absence of systemic accountability and transparency is one of the main causes of police brutality and deaths in custody. Due to a lack of adequate systems for investigation, monitoring, and holding the accountable, instances of police misconduct and abuse frequently go unreported and unpunished. Such occurrences are continually occurring because of a culture of impunity fueled by ineffective oversight and poor application of the laws that are in place.

The employment of coercive techniques during interrogations is another element. Sometimes, the police violate the rights of the accused and the norms of due process by using torture and other unlawful approaches to coerce information or confessions. In addition to violating human rights, this compromises the fairness of the criminal justice system. Article 20(3) states that no one may be forced to testify against themselves. It is an extremely important law since it prevents the accused from confessing when they are forced or tortured into doing so. Police are allowed to question suspects under Section 161 of the Code of Criminal Procedure, but if they employ pressure to extract information from a suspect during an investigation, it is considered compelled testimony. Forced testimony is not taken into consideration since it violates Article 20(3).

Article 21 is the fundamental right to life enshrined upon us by the Constitution of India, the situation of the prisons and police brutality is taking away this fundamental right and then awarding petty amounts in the form of compensation, more than half of these custodial deaths are not even reported as they are committed by law enforcement officials, this gives them an easy way out, as they can tamper with the evidence.

The rise in custodial deaths can be partly ascribed to the lack of strict punishments meted out to those involved in the past and the absence of well-defined precedents. To maintain accountability and stop law enforcement officials from abusing their authority, a clear precedent must be set.

What the constitutional courts of India have to say about Custodial deaths and compensation in such cases-

In the landmark case of DK Basu v. Union of India[6] it was held that the custodial death of a person breaches their fundamental rights and is unlawful. When a right is protected by the State, recourse must be sought against the State if the constitutional requirement established has not been met. According to legal interpretations, Article 21 ensures the right to life, personal liberty, and the ability to live in dignity. As a result, it also contains a protection against abuse by the State or its agents, such as torture.

Article 22 guarantees protection from arrest and detention. It states that no one who has been arrested may be held in jail without knowing the reason(s) for their arrest and that they are not to be denied the opportunity to speak with and be represented by a lawyer of their choosing. Article 20 (3) provides that a person accused of an offence shall not be compelled to be a witness against himself or herself. The guidelines issued by the court were as follows-

1. Police personnel must wear visible identification and maintain a register of personnel involved in the arrest and interrogation process.
2. A memorandum of arrest should be prepared at the time of arrest, witnessed by a family member or respectable person, and signed by the detainee, including the time and date of the arrest.
3. The arrested person has the right to inform a friend, relative, or someone interested in their well-being about the arrest.
4. The police must notify the detainee’s next friend or relative outside the district or city about the time, place of detention, and custody.
5. The arrested person must be informed of their right to have someone notified about their arrest or detention.
6. The arrest details, including the name of the informed next friend and custody details, must be recorded in the Case Diary at the place of detention.
7. A medical examination should be conducted at the time of arrest, recording any injuries, and an inspection memo must be signed by both the detainee and arresting officer.
8. The detainee must undergo a medical examination every 48 hours by a trained physician.
9. Copies of all relevant documents, including the arrest memo, must be sent to the Magistrate for registration.
10. The detainee may be allowed to meet their attorney during the interrogation but not throughout.
11. Police Control Rooms should be established for communication of arrest and custody information within 12 hours after the arrest.

The court also acknowledged that there is a need for compensation when someone’s fundamental rights have been violated.

Every time a person is injured and hurt, the law mandates that they have a way to seek redress in accordance with the idea of Ubi jus, ibi remedium, which translates to there is no wrong without a remedy. A mere declaration of invalidity or acknowledgement of custodial brutality or death is insufficient to offer a meaningful remedy when someone’s fundamental right to life has been violated. There must be other actions taken.

Although the Indian Constitution does not specifically mention compensation for violations of the fundamental right to life, the Supreme Court has established the right to compensation through its judicial rulings. This indicates that the court has acknowledged that the injured person is entitled to receive compensation as a kind of remedy in situations where there is a proven unconstitutional impairment of personal liberty or life.

In the case of Munshi Singh Gautam v. State of M.P[7] the court recognised that torture carried out by law enforcement officers is a serious offence that threatens civilised society by undermining citizens’ basic rights and human dignity. It promotes the notion among police that they may avoid responsibility because there isn’t any concrete proof. Direct evidence of police involvement in incidents of police torture or deaths in custody is frequently lacking because police officers frequently choose to keep quiet or tell lies to shield their coworkers. When prosecuting agencies themselves are involved, the prosecution’s stringent adherence to the standard of proof beyond a reasonable doubt can occasionally result in a miscarriage of justice.

If action is not taken to solve this problem, the judiciary and the criminal justice system may become less trustworthy in the eyes of the general populace, which will erode trust in the system. Because there is generally little direct proof or documentation of the acts, conviction rates for crimes involving police atrocities are sometimes low.

The Law Commission has suggested changes to the Indian Evidence Act that would transfer the burden of proof in these situations to the police officers. To reduce custody crimes, assure responsibility, and provide victims justice, the executive branch, legislature, and courts must act decisively. To ensure the truth is revealed and those responsible are held accountable, courts handling custodial crime cases should use a pragmatic and considerate approach rather than a restricted technical one.

This ruling highlights the necessity of broad structural changes, a shift in mindset, and the pursuit of justice and the truth in situations of custodial offences.

In the case of Inhuman Conditions in 1382 Prisons, In re[8] it was held that-

1. Even if a person is found not guilty after a trial, they are still entitled to compensation if they were unlawfully held. Compensation can be ordered to be given to the missing person’s relatives in circumstances of disappearances while they are in jail.
2. The right to compensation has been developed by the courts in situations of unconstitutional impairment of life or personal liberty, notwithstanding the Constitution’s lack of an explicit provision for it.
3. The State is held vicariously accountable for public employees’ violations of the fundamental right to life, and monetary compensation is a reasonable and practical remedy.
4. Sovereign immunity is not an acceptable defence, and the strict liability principle is in effect. The State is obligated to make the payment and may pursue restitution against the perpetrator.
5. The precise facts of each case will determine the amount of compensation given. The amount of compensation isn’t determined by a set formula.
6. Traditional remedies are not replaced by the relief granted by the court to address the violation of fundamental rights; rather, it supplements them. Any damages granted in a civil lawsuit may be offset against the compensation determined by the court and paid by the State.

However, in the same case the court has recognised that Custodial death is seen as a crime, therefore providing financial relief to the deceased person’s heirs is not the sole suitable relief.

There is a requirement for a sympathetic review of every prison. Violence against prisoners is a serious issue in civilised societies. Custodial violence in any form is repugnant and is condemned by all facets of society. People in positions of power need to be especially sensitive to those who are being held in captivity. Even though the results may have been inconsistent, the constitutional courts have constantly highlighted this issue.

The case of Prabhavathiamma v. the State of Kerala and others [9] involved the passing away of a scrap metal worker who was being held in detention in Thiruvananthapuram. The CBI Court subsequently gave the two accused service personnel the death penalty after a decade-long trial in the case. Justice Nazar stated that the police officers violently murdered the victim and damaged the police institution’s credibility.

The judge also ruled that pardoning such severe crimes was not an option since doing so would undermine public safety and encourage police to utilise their authority in arbitrary ways. Death sentences are a type of punishment that are rarely given, however in this case, the Bench made its decision based on the seriousness of the offence committed.

In conclusion, the issue of custodial deaths in India is a serious human rights violation and a cause for grave concern. The examples discussed here focus light on the terrible reality of custodial deaths and the pressing need for institutional reforms, justice, and accountability.

Custodial deaths are have been recognised by India’s constitutional courts as being illegal and a violation of fundamental rights. As a remedy to redress these transgressions, they have emphasised the significance of providing compensation to victims or their relatives. In order to prevent police brutality and guarantee the protection of those in detention, the courts have also emphasised the need for structural improvements, improved oversight, and a mental shift.

These decisions highlight the value of in-depth investigations, departmental actions against erring police officers, and a strong precedence to prevent such tragedies. Even in the absence of a specific constitutional provision, the courts have emphasised the State’s vicarious accountability and need to pay damages.

Police wrongdoing and the rising incidence of deaths while in custody call for immediate reform. To prevent mistreatment and torture while in custody, adequate protections must be put in place, such as identification of police officers, accurate record-keeping, medical examinations, and communication with family members. A culture of impunity must be eradicated, and those responsible must receive severe punishment.

Systematic improvements, such as improved training for law enforcement authorities, increased transparency, and the development of independent supervision mechanisms, are required to truly guarantee the fundamental right to life and dignity. Building a criminal justice system that upholds the values of justice, accountability, and respect for human rights should be the objective.

In the end, the judicial, executive, and legislative departments of the government must work together to pursue justice in situations of custodial deaths. India can safeguard the protection of its citizens’ rights and restore faith in the legal system by cooperating to address this pressing issue.

All the judgements cited may be read here:

1. Babita Devi and Ors Versus The State of Jharkhand
2. Dilip K. Basu v. State of W.B., (1997) 6 SCC 642
3. Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631
4. Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658
5. J. Prabhavathiamma v. the State of Kerala and others, 2008 Cri LJ 455

(The author is an intern with Citizen for Justice and Peace, cjp.org.in)

[1] Babita Devi and Ors Versus The State of Jharkhand through Principal Secretary, Home Department, Govt. of Jharkhand, Ranchi and Ors, W.P.(Cr.) No. 48 of 2017

[2] https://sabrangindia.in/article/custodial-deaths-highest-gujarat-over-5-years-jails-overcrowded/

[3] https://thewire.in/rights/india-custodial-deaths-data-rajya-sabha-2023

[4] https://thewire.in/rights/jayaraj-bennix-custodial-deaths-impunity

[5] https://www.indiatoday.in/india/story/vignesh-custodial-death-cb-cid-arrests-2-cops-murder-charges-1946505-2022-05-07

[6] Dilip K. Basu v. State of W.B., (1997) 6 SCC 642

[7] Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631

[8] Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658

[9] J. Prabhavathiamma v. the State of Kerala and others, 2008 Cri LJ 455

Related:

Custodial deaths highest in Gujarat over 5 years; jails overcrowded

Madras HC orders Judicial Magistrate to conduct inquiry into alleged custodial deaths in Tuticorin

UP: Maximum prison CCTVs, yet maximum custodial deaths?

Custodial torture victims are threatened, says People’s Watch: Tamil Nadu

Hyderabad: Muslim man allegedly subjected to custodial torture on “suspicion of theft” for 5 days, dies in hospital

The post Death behind bars: Justice through the Indian Courts as cases spiral appeared first on SabrangIndia.

The People’s Union for Civil Liberties (PUCL) has expressed “outrage and strongly condemned the cold-blooded shooting down by a 3-member gang of politician and former minister, Atiq Ahmed and his brother, Ashraf Ahmed, at about 1030 pm on April 15, 2023 in Prayagraj (Allahabad) Government Hospital, in public and in the full glare of the media.”

In a statement issued by its general secretary, V Suresh, the civil liberties organisation has also stated that, “What is most deplorable is that Atiq and Ashraf, were surrounded by an armed team of policemen who allowed a set of media persons to interview them, when the three killers came to the spot in motorcycles, whipped out sophisticated guns and shot the brothers in cold blood at point blank range, with the armed police remaining as mute spectators doing nothing to prevent the slaughter.

Since the publicised weekend killings of Atiq and Ashraf Ahmed, several individuals and groups have raised serious questions on the murders. 

What raises serious questions about the complicity of the police is the fact that the two brothers, who have been in police custody, were brought by the UP police late in the evening at about 1030 pm on April 15, 2023, to the Prayagraj Government Hospital for a purported medical check-up.  Though handcuffed together, and surrounded by armed policemen, the two were permitted by the police to have a media meet in the open at about 1030 pm which was captured live on visual media, when the three-member killer gang shot them dead. 

The killing, the statement says, is not just a security lapse on the part of the police, who failed to check the identity of the killers posing as media persons; a much more disturbing issue is how the killer gang knew that a media meeting would be held in the open, outside the hospital.

PUCL has also raised the following “ Questions to be answered by UP Police”

1.  Why did the UP Police not seek ‘Police Custody’ of the killers of Atiq and Ashraf Ahmed when produced for remand before Duty Magistrate on 16.04.2023 itself, and agree to Judicial Custody?

2.  If the killer gang was unknown to the police, didn’t the police think it important to interrogate them to find out how the killer gang knew about the police allowing the Ahmed brothers to meet the press at an unearthly hour of 1030 pm on 15.04.2023?  

3.  Didn’t the UP police think it was important to find out who all were behind the killer-gang by interrogating the 3 youngsters who shot Atiq and Ashraf?

The answer to these questions, states PUCL, will tell us whether it was a question of mere negligence by the UP police or a deeper conspiracy by the UP police and the UP administration, in the murders themselves? 

Further, the statement says that the “suspicion” as to whether the twin killings were planned affairs gets strengthened when viewed against the background of the encounter killing by the police on April 13, 2023 at Jhansi, of Asad Ahmed (son of Atiq Ahmed) and Ghulam, both of whom were also accused of the murder of Raju Pal.  In effect, in a space of 2 days, four key accused persons in the Raju Pal murder case, had been killed in alleged encounters, by the UP police.  

Besides, Atiq Ahmed apprehended being killed in UP and his counsel had told the Supreme Court that if he was transferred from Gujarat to UP, it would literally be a death warrant. The Supreme Court while turning down the plea for protection had orally observed that since he was already in police custody, the state machinery would take care of him. Despite this grave apprehension expressed by Atiq Ahmed of being killed by the police in a staged encounter if he was brought to UP from Gujarat, the UP Government does not seem to have taken adequate steps to ensure this most basic guarantee, namely the right to life. Meanwhile, Tragically, the very state machinery that was to protect him in its custody, has failed miserably.

Another factor that raises concern is that just yesterday, April 18, reports of a crude bomb being thrown outside the house of Atiq Ahmed’s lawyer, Mr. Dayashankar Mishra, in Prayagraj suggesting that a climate of impunity to criminals in general looms large. While thankfully no one was injured, the incident has sent shock waves amongst the family members of Mr. Dayashankar Mishra and Vijay Mishra, Advocates representing the murdered Atiq Ahmed.

Finally, states PUCL ever since the present Adityanath government was sworn in on 19.03.2017, he unleashed a controversial plan to eliminate alleged criminals and gangsters with his “Thok Diye Jayenge” or “They will be knocked out” policy.   The CM also unleashed `Operation langda’ by which alleged criminals were shot in their legs incapacitating them for life.

According to Prashanth Kumar, Special Director General of Police (Law and Order), UP Police, between March, 2017 and April, 2023, there have been 10,900 police encounters in which over 5046 alleged accused persons have been injured and 185 persons  have been shot dead.  

It should be noted that the UP Chief Minister, Yogi Adityanath who has sworn an oath to ‘bear true faith and allegiance to the Constitution of India’ had previously stated that “Mafia ko mitti mein mila doonga”.  This seems to have encouraged his ministers (who, it should be pointed out, are also sworn to uphold the constitution) to give statements that the murders were “karma” or that they were “divine justice”.  What is very ominous is the news that some groups with links to the ruling party celebrated the encounters by bursting crackers.  

It is the responsibility of the UP government led by the Chief Minister to ensure that vigilante murders do not occur and that the police do not kill people extra judicially. That is the essence of rule of law. It is in this most basic aspect of the responsibility of the Uttar Pradesh government, that it has most abjectly failed. It is the right of the accused to prove their innocence in a court of law, through due process, which has been blatantly denied and summary (in)justice is meted out without fair trial. This is in blatant violation of Articles 14 and 21 of the Indian Constitution and cannot be allowed or condoned.

This position of the UP government led by Yogi Adityanath which asserts that criminals are not entitled to the rule of law is antithetical to the values of the Constitution.  To those in the public who support this amoral position that ‘gangsters’ should not be entitled to the benefits of rule of law, one should note that once an exception is made in the grand edifice of rule of law, there will be others who, the state will argue, don’t deserve the protection of `rule of law’.  If this trend is not checked the state will feel emboldened to opt for vigilante justice, including extra judicial executions, against all those questioning its actions and policies. The ground for this has been prepared through the relentless delegitimisation of all dissent, dubbing those who are exercising the right to free speech as ‘anti-nationals’.

This amoral and cynical approach has been roundly castigated by the Supreme Court as being unconstitutional.  In `PUCL vs State of Maharashtra (2014)’,  a case filed by the PUCL regarding the issue of genuineness or otherwise of nearly 99 encounters between the Mumbai police and the alleged criminals resulting in death of about 135 persons between 1995 and 1997’, the Supreme Court 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”.

The Supreme Court appointed Commission of Inquiry headed by Justice V Sirpurkar to inquire into the killing of four men accused of rape by the Telangana police when the accused were in the custody of the Telangana Police, (known as the Disha rape and murder case which occurred in Hyderabad on November, 27, 2019) the  Commission came to the conclusion that the killings were murder and not justified as self-defence. The Commission also noted that:

“Just as Mob Lynching is unacceptable, so is any idea of instant justice. At any point of time Rule of Law must prevail. Punishment for crime has to be only by the procedure established by law”.

The PUCL has therefore demanded that:

1.  The SC should consider passing orders in the UP encounters PIL already pending before it, entrusting investigation into the quadruple encounter – murders  of Atiq Ahmed, Ashraf, Asad Ahmed and Ghulam, on 13th and 15th April, 2023 to an independent investigating agency, preferably a SIT, consisting of Police officials from outside UP, under the direct supervision of the Supreme Court.

2.  The case should be investigated as a custodial killing in accordance with the Supreme Court guidelines in `PUCL vs State of Maharashtra’ (2014 (10) SCC 635). The UP administration has shown no respect for the rule of law and therefore a Supreme Court monitored probe will build faith and confidence among the larger public as compared to a  probe initiated under the aegis of the UP government. 

3.  A FIR be registered into the encounter killings immediately, naming the police persons responsible for the encounters, and transferred to the `Special Investigation Team’ comprising officials from outside UP, for free, fair and independent investigation.

4.  The police officials involved in the encounters should be immediately transferred out of their districts to enable the SIT to conduct an unbiased investigation and to ensure that evidence is not tampered with. 

5.  Magisterial inquiry in accordance with law should be conducted. All the evidence, including forensic evidence by way of ammunition and weapons used, postmortem findings, chemical examination reports, electronic evidence and so on should be handed over to the jurisdiction Magistrate’s court to prevent tampering with evidence.

6.  Compensation should be given to the surviving members of the family as a partial recognition of the irreparable loss caused to them. Police officials responsible and complicit in the offence should be punished in accordance with law.

 

Related:

Extra-judicial killings in UP: A badge of honour or a matter of shame?

The post Encounter Killings in UP raise doubts about complicity: PUCL appeared first on SabrangIndia.

Encounters or what should be more accurately termed “extra-judicial killings” are a fanciful practice indulged in by trigger happy cops who then wear the “encounter specialist” tag with pride. When you actually call it by the latter name, is when you realise the gravity of the term and its implication. Such killings are part and parcel of vigilante justice where the police treat the accused, who has not been proven guilty in court, as guilty and lawlessly punishes him, by taking his life.  

In official data released by UP government in March, it proudly revealed how it had killed 178 persons accused of serious offences after having conducted 10, 713 encounters, reported Hindustan Times. Meerut had recorded that highest number of encounters (3,152) followed by Agra (1,844) and Bareilly (1,497). In each of these districts, 63, 14 and 7 persons had been eliminated, respectively.

This averages to about a total of five extra-judicial killings every over the last six years!

Proudly declaring the high number of these “encounter killings” to be a badge of honour, Additional Director-General (law and order) of the U.P. Police, Prashant Kumar, told Hindustan Times on April 16, 2023 that this collective police action is a “befitting reply to criminals”.

As of August 2021, at least 3,302 accused were injured in encounters in UP since March 2017 (that is when Yogi Adityanath first became the Chief Minister of the state) and these injuries are generally below the wait, on the legs, leaving many disabled.

It is rare that police personnel ever get punished ort reprimanded for taking the law into their own hands. Rare is it even that a criminal complaint, an FIR gets registered in such cases. In one such case, in February 2022, an FIR was filed against then Superintendent of Police, Additional Superintendent of Police, three circle officers and in-charges of 10 police stations. The incident occurred a staggering 19 years ago in October 2004 when the Jalalabad Police shot two persons accused of dacoity. What evidence for trial is likely to survive after close to two decades?

Official data accessed from the UP police in 2018 revealed that within 10 months of Yogi Adityanath coming to power in UP, 34 accused persons had died in 1,142 encounters leaving 265 injured.

Many of those killed in such encounters are allegedly “wanted criminals” with a bounty on their heads. For instance, gangster Vikas Dubey who was killed in July 2020 when the vehicle he was traveling in allegedly overturned and he tried to escape; he is reported to have a series of serious cases against him; ganster Tinku Kapala with a bounty of Rs 1 lakh was similarly killed in July 2020, Bangladeshi gangster Hamza was killed in October 2021, gangster Vinod Kumar Singh, with a bounty of Rs 1 lakh was killed in September 2022.

Most recently, April 13, Atiq Ahmed’ son Asad (wanted in the case of murder of Umesh Pal Singh) and Ghulam were killed in an encounter in Jhansi on Thursday.

Do encounters have a political connection?

The linkage between the increase in numbers of extra-judicial killings and the ruling party in the state become fairly apparent when the higher echelons bosses of the same outfit claim political credit, even using it as propaganda to demonstrate an improvement in law and order situation. Ajay Bisht aka Adityanath has self-proclaimed this phenomenon as his ‘zero-tolerance’ policy against anti-social elements. He has received high level endorsement with Prime Minister Narendra Modi and Union home minister Amit Shah both showering praise for the improved law and order situation given that the state is the chosen venue for the Global Investors Summit. The rhetoric being that this attracts more investment.

Many of these extra-judicial killings over the past years have been attributed to Adityanath’s “Operation Clean”.

Barely two months after assuming power in March 2017, Yogi had said in an interview, “agar aap apradh karenge, toh thok diye jayenge” (if you commit a crime, you will be smashed/killed), hardly befitting a chief minister who occupies a constitutional post. Another name given to the policy that encourages such killings is “Operation Langda” (Operation Disabled/Lame Leg) which implies that many accused were rendered disabled after being shot in their legs during these encounters. In 2021, just before Republic Day, the state’s chief secretary –again the senior post bureaucrat from the IAS cadre who swears an oath under the Constitution –had asked district magistrates to popularise the phrase “Ab Tak 3,000” (Three Thousand and Counting..) describing the number of “encounters” committed by the Adityanath government until then.

There is no centralised data on such killings. Information provided by the National Human Rights Commission (NHRC), “encounter deaths” were highest in number in Chhattisgarh (191) followed by UP (117) and Assam (50). The period for which this data has been made available is January 1, 2017 and January 31, 2022.

What exactly lies behind these killings?

A 2018 article in Newsclick wrote, “The testimonies of eyewitnesses and family members of those who were killed in the ‘encounters’ and a close examination of the FIRs and post-mortem reports clearly show that most of these killings  are cold blooded murders – where no gun battle apparently took place.

For many of those killed or injured, it appears that the police posthumously inserted clauses of criminality in their record to justify the killings or injuries. The law is clear and each of these killings is a violation: even someone with criminal records cannot – under any circumstances – be gunned down in this way, the police if bound to follow due process. The staggering numbers of false and manipulated criminal complaints and FIRs, the absence of integrity and accountability in police investigation further strengthens arguments against this arbitrary practice.

Despite numerous judicial pronouncements, the abhorrent practice continues within law enforcement, police practice. Far from penalising these extra-judicial killings, since the CRPC protects the policeman from “acts done in good faith”, a pervasive trigger happy force enjoys wielding the gun and functioning with impunity.

Besides, Bollywood films and pop culture glorify the encounter shoot-out, the middle and privileged classes and castes root for “an eye for an eye” approach. The abysmal delay and decay in the administration of criminal justice becomes an excuse for the police taking law into their own hands.

Legal jurisprudence

When cases finally reach the higher judiciary, the Supreme Court, the jurisprudence has been unequivocal. Much damage is however already done by then and rare is it that guilty policeman are punished.

Speaking against extra-judicial killings, the Supreme Court in Om Prakash and others Vs State of Jharkhand [Criminal Appeal o. 1491 of 2012; decided on September 26, 2012] said,

“It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State sponsored terrorism.” (Para 38)

In Prakash Kadam vs Ramprasad Vishwanath Gupta [Criminal Appeal Nos.1174-1178 of 2011; decided on May 13, 2011], the Supreme Court prima facie held that some police officers and staff were engaged by some private persons to kill their opponent and that the police behaved like contract killers and did a fake encounter. The court, in its judgement, said,

“Fake `encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.” (Para 25)

“We warn policemen that they will not be excused for committing murder in the name of `encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The `encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of `encounter’ and get away with it should know that the gallows await them.” (Para 26)

In PUCL Vs State of Maharashtra [Criminal Appeal No. 1255 of 1999; order dated September 23, 2014] in 2014, PUCL had challenged 99 encounters by Mumbai Police between 1995 and 1997 and sought guidelines on procedure to following in investigating police encounters. The court issued the following guidelines which are not just applicable in case of death in encounters but also grievous u=injuries caused during such encounters (the guidelines are abridged):

(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.

(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.

(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 which will identify the victim, recover evidence, determine the cause of death, ensure fingerprints of victim are sent for analysis, ensure that post mortem is conducted by two doctors of district hospital and the same should be video graphed.

(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, information of the incident to be sent to NHRC or the State Commission.

(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.

(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. 

Besides the NHRC has laid down specific guidelines in cases of deaths caused in Police action:

A. When the police officer in charge of a police station receives information about death in an encounter with the police, he shall enter that information in the appropriate/ register.

B. Where the police officers belonging to the same police station are members of the encounter party, whose action resulted in death, it is desirable that such cases are made over for investigation to some other independent investigation agency, such as State CBCID.

C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall be investigated by State CBCID or any other specialized investigation agency.

D. A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably, within three months. The relatives of the deceased, eye witnesses having information of the circumstances leading to encounter, police station records etc. must be examined while conducting such enquiry.

E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/police investigation.

F. 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 officer is established beyond doubt.

G. (a) All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in the following format:

1. Date and place of occurrence

2. Police station, district

3. Circumstances leading to death:

              (i)    Self-defence in encounter

                   (ii)    In course of dispersal of unlawful assembly

                   (iii)   In the course of effecting arrest

                   (iv)    Any other circumstances

                   4. Brief facts of the incident

                   5. Criminal case No.

                   6. Investigating agency

(b) A second report must be sent in all cases of death in police action in the state by the Sr. Superintendent of Police/Superintendent of Police to the commission within three months providing following information:

1. Post mortem report

2. Inquest report

3. Findings of the magisterial enquiry/enquiry by senior officers disclosing:

(i) Names and designation of police official, if found responsible for the death:

(ii) Whether use of force was justified and action taken was lawful:

(iii) Result of the forensic examination of ‘handwash’ of the deceased to ascertain the presence of residue of gun powder to justify exercise of right of self defence; and

(iv) Report of the Ballistic Expert on examination of the weapons alleged to have been used by the deceased and his companions.

Conclusion

Despite judicial strictures and some guidelines, such politically induced crimes by men and women in uniform, continue with societal sanction and approbation. The law, too is not clear and offers escape routes for trigger happy policemen. Such practices signify nothing less than a complete subversion of the rule of law.

Related:

Long Delayed Justice: Retired Police SI guilty of extra-judicial killing 31 years down, sentenced to life imprisonment

Court orders 12 UP cops to be booked for murder of farmer: Cow Vigilantism

Allahabad High Court imposes Rs. 5 lakhs cost for misuse of Goondas Act

The post Extra-judicial killings in UP: A badge of honour or a matter of shame? appeared first on SabrangIndia.

A Bareilly court found a retired sub-inspector guilty of killing a 21-year-old college student in a fake encounter case three decades ago and wrongly construing him for a robber. This was in 1992! On March 31, the court of additional district and sessions judge Pashupati Nath Mishra sentenced Yudhisthir Singh, now 64 and retired, to life imprisonment for the murder of Mukesh Jauhari on July 23, 1992. The Bareilly court also slapped a fine of Rs 20,000 on the convict. With this, a 31-year fight for justice was concluded, which was being fought by Mukesh Jauhari’s mother till the year 2001, and then by his brothers after her demise. This is only the first stage in the four rungs of justice delivery however and it is more than likely that the case will continue, in appeal.

31 years on, retired cop convicted for killing in fake encounter 

The incident dates back to July 23, 1992, when Mukesh Jauhari, a student of Bareilly’s degree college who was 21 at that time, was shot dead by Singh. The accused cop had claimed that the deceased Mukesh was robbing a wine shop and he had to open fire at him in self-defence. It was later found that Singh had shot him inside the Quila thana. After the fake encounter, police tried to even colour Mukesh’s character, showing him to be a history-sheeter. 

Three months after the encounter, Mukesh’s father, a government gazetted officer based in Bareilly, died too, reportedly due to the trauma of losing his youngest son so brutally and abruptly. It was Mukesh’s mother who then fought for justice for her dead son, and to clear his name, for nearly a decade and finally, a case was registered in the matter on the Supreme Court’s orders in October 1997. The probe was subsequently handed over to the CB-CID and a charge-sheet was framed against the SI in 2004. Notably, till the Supreme Court intervened four years after, the crime had not even been effectively registered.

In August 2001, the 67-year-old woman, Mukesh’s mother, died, post which the case was pursued further by her family. Anil Jauhari, one of Mukesh’s brothers, had told the Times of India that it was his mother’s last wish to ensure justice for Mukesh. He said ‘Our entire family was disturbed after this incident. Our eldest brother, Arvind Jauhari, who has also passed away, was an advocate, and he fought the case after our mother’s death. He had collected a lot of evidence against the SI despite all the obstacles.” 

Rakesh Jauhari, another brother, said, “Mukesh had some altercation with the SI earlier and the cop wanted to get back at him. On the day of the incident, my brother was brought to the thana after he was shot at by the SI. Police didn’t even take him to the hospital for treatment. Later, we found that police had lodged a fake FIR against my brother alleging that he was robbing a wine shop.” Mukesh was the youngest of the seven brothers.

After the deliverance of the judgment, Additional district government counsel, Santosh Srivastava, also spoke to the TOI, and said that “The retired SI was found guilty under Indian Penal Code (IPC) section 302 (murder). Nineteen witnesses were produced in the case along with sufficient evidence against the accused cop which led to the conviction.” It was also provided by the counsel that the said fine amount will be provided to relatives of the victim.

Policing the police- the menace of fake encounters

The Indian Constitution guarantees certain rights and safeguards that the State must uphold for every citizen of sovereign India. Article 21 of the Constitution is one of the most notable provisions and is part of the fundamental rights. According to Article 21,

“No person shall be deprived of his life or personal liberty except according to procedures established by law.”

The ‘procedure established by law’ mentioned in the Article must be just, equitable, and reasonable. It emphasises that no one’s life or personal liberty shall be taken away except in accordance with the legal procedure. As a result, there is an implied guarantee against torture or assault by the state or its law enforcement agencies. Only through a legal procedure can a person be punished, whether by deprivation of life or personal liberty. This means that before punishing a person, a trial according to criminal law procedure, a judgment based on evidence and reasons, an opportunity for the accused to be heard, appeal provisions for checking errors in the trial court’s verdict, and so on are required. When police play the role of judge and executioner by eliminating accused persons through staged encounters, there is no following of procedure established by law. This leads to a direct violation of Article 21 of the Constitution.

In the Manual on Human Rights for Police Officers (2011), issued by National Human Rights Commission (NHRC), states that,

“The law says that no one including the police has an unqualified right to take the life of another person. Causing death of a person by a police officer may amount to murder or culpable homicide not amounting to murder, unless it is established that the causing of death is for justifiable reasons. If a police officer kills someone in an encounter, he/she must prove that the death was caused either in the legitimate exercise of the right of private defence or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment. This can only be ascertained by a proper investigation and not otherwise”.

In Om Prakash v. State of Jharkhand, 2012, the Supreme Court observed,

“This Court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State sponsored terrorism”.

In Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr, 2011, a Supreme Court division bench comprised of Justice Markandey Katju and Justice Gyan Sudha Misra went so far as to say that police officers found guilty of murder in the guise of encounters must face the death penalty. The judgement stated:

“That in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of the rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.”

Despite such judicial denouncements of extra-judicial killings by uniformed personnel, they continue to happen, such as in this case. 

In PUCL v. State of Maharashtra, 2014, the Supreme Court laid down 16 guidelines/procedures ‘to be followed in the matters of investigating police encounters in the case of death as the standard procedure for thorough, effective and independent investigation’ issued by the NHRC. A Magisterial inquiry must be invariably held under section 176 of the Criminal Procedure Code (CrPC), in all cases of death which took place in the course of police firing and a report thereof must be sent to the Judicial Magistrate having jurisdiction under section 190 of the CrPC. And also the information of the incident without any delay must be sent to NHRC or the SHRC, as the case may be. If at the end of the investigation, if there are any materials/evidence on record to show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be strictly initiated and he should be placed under suspension. The court also said that, the guidelines will also be applicable to grievous injury cases in police encounter, as far as possible.

In Extra Judicial Execution Victim Families Association v. Union of India, 2017, the petitioners compiled a list of 1528 alleged extra judicial killings at the hands of the police and security forces in Manipur alleging that no FIRs were registered. Innocent people with no criminal records who were later labeled militants were among those killed. The Supreme Court-appointed Commission investigated six of the petitioners’ claims and determined that they were not genuine encounters and that the victims had no criminal records. The two-judge bench, comprised of Justices Madan B Lokur and Uday Umesh Lalit, ruled that the rule of law would apply even when dealing with a “enemy.” The Court ruled that members of the Manipur Police or Armed Forces who committed excesses while performing their duties would be prosecuted.

All of the preceding cases demonstrate the importance of being cautious and skeptical when accepting the police version of encounter killings. They have frequently been proven to be fake and staged. Police officers have power that they can abuse, but at the end of the day, even police officers are not above the law.

Justice Delayed is Justice Denied

The NHRC explained that the only two circumstances in which such killing would not constitute an offence were (i) “if death is caused in the exercise of the right of private defence”, and (ii) under Section 46 of the CrPC, which “authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.

In India, during a trial, both the accused and the victim party get a fair chance to prove their stances and present their evidence. Since in this case, the police officer had abused the law, the usual defense pressed into service by the Police officers to justify encounter killings, which is that the act of killing had to be resorted to in order to save themselves from the deadly attack made by the victims, was used. What is projected by the encounter killers is the “right of private defense” available to them when confronted with situations of grave danger to their life as would justify the exercise of this right of private defense.

It took 31 years for the Indian legal system to punish the actual perpetrator. India has a criminal justice system dotted with gaping holes, with no time bound trials. The errant law enforcement agencies (policemen in this case) and the prosecution enjoy a cozy relationship.

Cases get transferred from inferior to superior courts, fresh arguments and evidence must get presented, and dates are assigned after long gaps, sometimes of a year. In some cases, mostly where the accused are not so privileged, they often languish for years in jail before their cases are even heard by the court, while in many cases, mostly of the ones who have power, the accused manage to escape from the hands of the justice. 

In this case, 31 years passed before the perpetrator was put behind bars. In those 31 years, the kin of the victims continued to fight for justice, and some even died fighting for justice. Since he was a police officer, manipulating the facts and evidence became easier for him. While, in this case, justice was delivered, it is also essential to note that it was delayed by decades, and such delay in justice is equivalent to denial of justice. This was more than a case of fake encounter, it was also a case of custodial death, where the police personnel responsible for causing the death of a person in custody managed to manipulate the laws and cause a delay in an already inordinately delayed trial. 

It is essential that in cases where officers of the state misuse their powers, these cases are dealt with in special courts, applying procedural and substantive guidelines laid down in various Supreme Court judgements and even the manual of the NHRC. The non-application of conclusions and findings laid down institutions higher up in the justice delivery — by police and trial courts have made a near mockery of the lofty principles of justice. For the mother and brothers of Mukesh Jauhari there is a sad twist to the tale. Loss of a valued family member, life and character shaming and the mammoth resources required to even achieve this measure of justice, 31 years later.

Related:

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The post Long Delayed Justice: Retired Police SI guilty of extra-judicial killing 31 years down, sentenced to life imprisonment appeared first on SabrangIndia.

On July 14, 2022, the Supreme Court dismissed a writ petition seeking independent investigation into alleged extra-judicial killings of tribals in Chhattisgarh by security forces during anti-Naxal operations. The court however, imposed an “exemplary cost” of Rs 5 lakhs on the first petitioner, reported LiveLaw.

A bench comprising Justices AM Khanwilkar and JB Pardiwala had heard the petition that was filed in 2009, and had reserved the judgment on May 19. The bench has now imposed a cost of Rs. 5 lakhs on the first petitioner Himanshu Kumar.

The Central Government had reportedly filed an application seeking perjury proceedings against the petitioners alleging that they were depicting the executions carried out by Naxals as done by security forces. Denying the Centre’s plea to initiate such proceedings, the Court reportedly said that action can be taken against the petitioners for making false charges under IPC Section 211 and for criminal conspiracy.

According to LiveLaw, Justice Pardiwala reportedly read out the operative portion of the order: “We leave it to the State of Chhattisgarh to take apt steps in accordance with law as discussed above with reference to the assertions in the interim application. We clarify that it would not only be limited to the offence of S.211 of the IPC. A case of conspiracy or any other offence may also surface. We have not expressed any final opinion. We leave it to the better discretion of the Stare. We are not proceedings further with perjury but leave it o the State to take apt step. It could be prosecution under S211 or any other other that may surface ultimately.”

A probe was requested by a central agency by Solicitor General of India Tushar Mehta citing reasons such as to avoid “inter-state ramifications”. However, Justice Khanwilkar reportedly said that the bench would clarify the same and sign the order.

Senior Advocate Colin Gonsalves, appearing for the petitioners, had reportedly submitted that there should be an independent investigation by CBI/NIA.

“The victims of abuse and atrocities inflicted by unscrupulous Left Wing Extremists are being misguided by some motivated individuals to provide legal protection to the Left Wing Extremists by obtaining protective orders from this Hon’ble court through fraudulent and deceitful machinations,” the Centre had said in its application, as reported by LiveLaw. SG Mehta reportedly informed the Court that the petitioner is the director of an NGO Vanavasi Chetna Ashram, whose FCRA license was suspended for not accounting foreign contributions.

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New Delhi, 7 December 2019 — The Commonwealth Human Rights Initiative (CHRI) today called on the Telangana Police and state government to ensure exhaustive, impartial, and independent investigations into the police shooting of the four suspects in the Hyderabad gangrape and murder case. The state government and Telangana Police are accountable for the deaths caused, CHRI said.

The four suspects were shot dead by police personnel in the early hours of 6th December in the midst of a recreation of the crime scene of the gangrape, allegedly because they were attempting to escape. The Police Commissioner of Cyberabad, while addressing a press conference, said that the police acted in self-defence after the suspects snatched their weapons and opened fire at them. The police version, CHRI said, failed to explain the major operational breach of four unarmed suspects being able to overpower 10 armed police personnel.

“There must be prompt and independent investigations particularly to examine the use of force by the Telangana Police. These must be initiated immediately so as not to lose valuable evidence, and conducted in a thorough manner that meets the ends of substantive justice”, said SanjoyHazarika, Director of CHRI. The National Human Rights Commission (NHRC) took suomoto notice and dispatched an inquiry team to Telangana on 6th December itself. Notably, the High Court of Telangana has issued directions to preserve the bodies of the victims until 9th December, videograph the post-mortem, and submit the video to the Mahbubnagar district judge.

The onus is on the state government and police to facilitate an enabling environment that assures these multiple accountability processes can proceed freely with no hindrances or interference.

CHRI urges the Telangana police and government to demonstrate accountability and ensure immediate registration of a First Information Report (FIR) against the police personnel involved. Telengana authorities must further ensure that the investigation is conducted by police outside the district (preferably by a special investigation team); that section 176(1-A) Code of Criminal Procedure inquiry is held at the earliest; that the crime scene, forensic evidence and the victims’ bodies are preserved.

In addition, CHRI says that
• the names and duty records of all police officers part of the police party must be secured as well as all relevant registers
• all the weapons/guns used and related evidence should be seized
• all wireless, vehicle log book records, and call detail records of all police personnel involved (in both planning and the events of 6th
December) are collated and examined
• the post-mortems are conducted and videographed as per NHRC guidelines
• that none of the implicated police personnel are promoted, given gallantry awards, or posted to some other locations.

Furthermore, guidelines of the Supreme Court given in PUCL vs. State of Maharashtra require any killing in an encounter to be independently investigated. Additionally, the NHRC guidelines require any death resulting from police action to be reported to it within 48 hours, followed by supplementary reports including the post-mortem, inquest, magisterial inquiry and forensic reports. The state government and police must strictly comply with both the Supreme Court and NHRC guidelines.

Lastly, CHRI demands that the implicated police personnel be immediately suspended pending investigation, and arrested as soon as prima facie grounds are made out.

“It is of serious concern that policymakers and others are championing the killings and there is no mention of the strict accountability required for the causing of death. This denies institutional responsibility, and bodes ill for the rule of law”, said Devika Prasad, Programme Head, Police Reforms, CHRI.

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On October 20, the NCRB simultaneously released two of its annual reports—“Prison Statistics India 2017” and “Crime in India 2017”.The reports contain statistics collated by the Board as to the number and types of deaths occurring in judicial and police custody respectively. Here, we look into the findings from these documents.

Deaths in judicial custody
The report notes that 1,671 prisoners have died in 2017 while they were in judicial custody. These deaths in jails have been broadly classified into natural deaths (1,494) and unnatural deaths(133). The natural deaths category includes those by illness (1,373)or ageing (121).348 of these deaths were from heart disease, while 164 were from some type of lung ailment. At least 85 of the natural deaths were caused by the prisoner catching tuberculosis.

The unnatural deaths have been sub-categorised into such as suicide (109), accidental deaths (9), murder by fellow inmates (5), deaths due to assault by outside elements (5) and a catch-all “others” (3).The number of unnatural deaths in prisons has increased by 15.7 per cent from 115 in 2015.
During 2017, Uttar Pradesh has reported the highest number of deaths by natural causes at386. The state is followed by Punjab (131) and Maharashtra (111).

Deaths in police custody
The “Crime in India” comprises a special chapter that enumerates custodial crimes reported in the country in 2017.

A total of 100 persons died in police custodythat year, withAndhra Pradesh having the highest number at 27. The most common reason reported for custodial death in 2017 was suicide (37) followed by death in illness/hospital during treatment (28).

The Times of India noted that 106 people have lost their lives in Maharashtra in police custody within the four-year period between 2013 and 2017, followed by Andhra Pradesh (65), Gujarat (51), Tamil Nadu (38) and Telangana (12). In 47 of the 106 incidents from Maharashtra, a magisterial or judicial inquiry had been initiated, while in 14, cases registered, and in 19 of them, chargesheets had been filed.None of the seven union territories reported any deaths in police custody in 2017.

The report further classified certain incidences as human rights violation while showing statistics as to those cases registered against police officers. These include: encounter killing, deaths in custody, illegal detention, torture/causing hurt/injury, extortion, and“other”.

No state police personnel has been convicted for any reported deaths in custody in 2017.

Out of the 56 registered cases of human rights violations by the police in 2017, only half of the cases (29) get chargesheeted, only half of those get investigated to completion (14), and only a fifth of those have gotten convictions (3).The probability of a registered case amounting to a conviction was, thus, 1 in 18.
 
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The post When Your Deathbed is Behind Bars: NCRB Reports on Deaths in Judicial and Police Custody appeared first on SabrangIndia.

The World Organization Against Torture (OMCT) has issued a statement regarding alleged extra-judicial killings in Manipur, saying that the organisation is “deeply concerned about attempts to delay, frustrate and dilute one of the most significant rule of law judgements rendered in Asia over the past years.” Formed in 1985, the OMCT says it is currently “the main coalition of international non-governmental organisations (NGO) fighting against torture, summary executions, enforced disappearances and all other cruel, inhuman or degrading treatment.” The OMCT “enjoys a consultative status with” organisations such as the Economic and Social Council of the United Nations, the International Labour Organization, and the African Commission on Human and Peoples’ Rights, among others.

Representation Image

In its statement, the OMCT notes that India’s Supreme Court “examined the case of 1,528 alleged extrajudicial killings carried out by the police and security forces in Manipur in two landmark judgements in 2016 and 2017.” The OMCT calls these “a historic step towards addressing grave human rights violations and a key turning point to come to terms with past impunity.”

In October 2012, the Supreme Court took note of a PIL “alleging that there had been apathy on the Centre and Manipur government’s part to bring to book the guilty among armed forces and state police, which allegedly were responsible for 1,528 extra-judicial killings in last 30 years,” the Times of India then reported. The PIL was brought by the Extra Judicial Execution Victim Families Association, Manipur, and the Imphal-based Human Rights Alert. Some of alleged killings dated back to 1979, the OMCT noted in its statement.

In 2016, the Supreme Court ruled that armed forces cannot use excessive force even in regions that fall under the Armed Forces Special Powers Act (AFSPA), and ruled that the alleged fake encounters in Manipur “must be investigated“. AFSPA has been in force in the state since 1958. The OMCT said that Supreme Court’s “long-awaited” 2016 judgement “established that any allegations on the use of excessive or retaliatory force by uniformed personnel resulting in death required a thorough inquiry into the incident and that use of such force was never permissible, including in operations led against suspected insurgents and terrorists,” adding that the Court also “stressed the importance of investigations and that legal judgements for a much broader truth-seeking approach is required, taking into account the magnitude of the extrajudicial executions.”

The following year, in 2017, the Supreme Court ordered a CBI probe into 98 fake encounter killings in Manipur. However, the OMCT stated that, “more than a year after the 2017 judgement, there are serious concerns about attempts to defeat the very meaning of the landmark ruling.” The Supreme Court itself has upbraided the CBI over the slow pace of its investigation. Earlier in 2018,  350 armed forces personnel and six Manipur Police officials filed a plea in the Supreme Court challenging FIRs against them over operations conducted in areas where AFSPA is in force; this was later followed by a similar move by more than 380 personnel.

The OMCT noted of the original petition that “it would, if entertained by the court, in fact result in a class impunity action for military personnel implicated in crimes under international law,” adding, “It is particularly frightening to read the reasoning behind the Army’s petition that investigations and responsibility for crimes under Indian and international law should disturb the moral [sic] of the troops.” It stated that “International law leaves no space for such an exclusion of law enforcement and the Army and its reasoning is deeply flawed and incompatible with the core notion of the rule of law,” and recalled that “such an interpretation would be in clear violation of basic principles of the rule of law in a democratic society, and contrary to international legal obligations binding on India.”

The OMCT also emphasised the importance of ensuring that the victims, their families, as well as activists, lawyers, and human rights defenders involved in the cases “are protected from any reprisals,” saying it was “seriously concerned about reports it has received about threats and harassments.” It highlighted the need to review the role of AFSPA, which it noted has been previously criticised by the UN Special Rapporteur on extra judiciary, summary and arbitrary executions after the mandate holder’s 2012 India visit.

The OMCT said it acknowledged that the Indian government “recently announced its intention to amend the AFSPA, removing references to the use of lethal force to maintain public order,” and said this “advancement would be a welcomed first step to reduce some of the shortfalls and discrepancies contrary to international human rights and humanitarian law standards.” Taking the view that the 2016 and 2017 Supreme Court judgements “were steadfast in their human rights’ compliant interpretations and findings,” the OMCT stated that they “should not be questioned,” but “should be implemented, upheld and treasured as one of the biggest legal milestones of India and beyond.”

The OMCT’s complete statement may be read below: 

India: Historic Supreme Court Case on Extrajudicial Killings in Manipur Must be Complied with and Implemented
 

Geneva, 26 September 2018

The World Organization Against Torture (OMCT), the principal global coalition against torture, is deeply concerned about attempts to delay, frustrate and dilute one of the most significant rule of law judgements rendered in Asia over the past years. The decision must be implemented, victims, witnesses and human rights defenders protected, and attempts for a de facto class impunity for law enforcement and the army firmly rejected.
The Supreme Court of India examined the case of 1,528 alleged extrajudicial killings carried out by the police and security forces in Manipur in two landmark judgements in 2016 and 2017. It was a historic step towards addressing grave human rights violations and a key turning point to come to terms with past impunity. The cases were brought to the Supreme Court in 2012 by victims, their families and nongovernmental groups in Manipur. Some of the cases date back to 1979 and the most recent ones are from 2012. The victims’ families and human rights organizations around the world have applauded the historic judgments, some of which have been waiting for their right to truth, justice and redress for almost 40 years.

The long-awaited Supreme Court judgement of 2016 established that any allegations on the use of excessive or retaliatory force by uniformed personnel resulting in death required a thorough inquiry into the incident and that use of such force was never permissible, including in operations led against suspected insurgents and terrorists. Further, the Court stressed the importance of investigations and that legal judgements for a much broader truth-seeking approach is required, taking into account the magnitude of the extrajudicial executions. Following this worldwide acclaimed judgement, in July 2017 the Supreme Court directed the Central Bureau of Investigation (CBI) to examine 98 killings by police, army, and paramilitary forces in Manipur. Despite some initial delays, the CBI investigation has moved forward, raising the hopes of the victims’ families to at last obtain justice and redress.

Yet more than a year after the 2017 judgement, there are serious concerns about attempts to defeat the very meaning of the landmark ruling.

The CBI investigation that has been slow and burdensome has yet again been delayed by a petition presented by the Army challenging the investigations into the Manipur cases
The petition was filed by 356 soldiers and officers of the Indian Army in August 2018 and it would, if entertained by the court, in fact result in a class impunity action for military personnel implicated in crimes under international law. It is particularly frightening to read the reasoning behind the Army’s petition that investigations and responsibility for crimes under Indian and international law should disturb the moral of the troops. The OMCT firmly believes that abiding by the law, acting in a disciplined fashion, and serving the country and its people is what should fuel the morale of the troops, not the blanket immunity from prosecution to those who breach the law.

International law leaves no space for such an exclusion of law enforcement and the Army and its reasoning is deeply flawed and incompatible with the core notion of the rule of law.

The OMCT also recalls that such an interpretation would be in clear violation of basic principles of the rule of law in a democratic society, and contrary to international legal obligations binding on India. International treaty law, such as the International Covenant on Civil and Political Rights (ICCPR) ratified by India in 1979, provide an unequivocal obligation to bring those responsible to justice, along the chain of command, and to provide reparation to the victims and their families. The protection of the rights to remedy and reparation has been further elaborated in consistent universal jurisprudence. What is more, there is not only an obligation to investigate when presented with allegations of extrajudicial killings, the state has a positive obligation to investigate grave human rights violations irrespective of whether or not a formal complaint has been lodged. Lastly, as repeatedly pointed out by the Indian Supreme Court, the victims right to know the truth has gained increasing protection in international law as captured in the UN High Commissioner on Human Rights Study on the right to the truth.[1]

No justice obtained without the protection of victims, their families, witnesses, human rights defenders and lawyers working on the case
Further, OMCT is recalling the importance to ensure that victims and their families, activists, lawyers and human rights defenders working on this case are protected from any reprisals and is seriously concerned about reports it has received about threats and harassments.

It recalls the obligation not only to refrain from such acts but the positive obligation of the state to protect victims, witnesses and human rights defenders, especially pertinent in sensitive cases such as this one.

Need to review the role of the Armed Forces Special Powers Act and to overcome de facto immunity and impunity regimes
The OMCT recognizes the specific context of Manipur, with the presence of armed groups with claims to the right for self-determination. The Armed Forces Special Powers Act (AFSPA) in force in Manipur and Jammu/Kashmir, is regulating the use of force by the armed forces in these so-called “disturbed areas”. AFSPA was adopted in 1958 and has long been an anomaly in the Indian legislation. The Act and its application have long been a major impediment to human rights compliance and carries a legacy of impunity contrary to international human rights and humanitarian law standards. Members of the armed forces are also protected from prosecution under the AFSPA. The Act has for decades created a legislative loophole for impunity for the law enforcement, creating confusion and discrepancies on the rule of law in India. The AFSPA has also consequently been criticized by the UN Special Rapporteur on extra judiciary, summary and arbitrary executions following the mandate holder’s visit to India in 2012.[2]

The OMCT recognizes that the government of India recently announced its intention to amend the AFSPA, removing references to the use of lethal force to maintain public order. This advancement would be a welcomed first step to reduce some of the shortfalls and discrepancies contrary to international human rights and humanitarian law standards.

Finally, the Supreme Court rulings from 2016 and 2017 were steadfast in their human rights’ compliant interpretations and findings. They have been acclaimed across the region and have given hope to victims and new faith in the fundamentals of the rule of law as a rule of rights.

The two landmark judgements should not be questioned. Instead they should be implemented, upheld and treasured as one of the biggest legal milestones of India and beyond.

[1] Promotion and Protection of Human Rights: Study on the right to the truth. Report of the Office of the United Nations High Commissioner for Human Rights; 8th February, 2006. Commission on Human Rights, Sixty-second session, Item 17 of the provisional agenda.
[2] UN Special Rapporteur on extra judiciary, summary and arbitrary executions, Mission to India Report, 26 April 2016, A/HRC/23/47/Add.1, and Follow-up to country recommendations: India, 6 May 2015, A/HRC/29/37/Add.3.

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Sohrabuddin case: Retired Bombay High Court Judge Abhay M Thipsay said the HC must exercise its powers of revision, even suo-motu if necessary, to relook at the case. (Express Photo/Pradip Das)

The way several high-profile accused in the Sohrabuddin Shaikh alleged fake encounter case were discharged, the “absurd” inconsistencies in the legal process, signs of witnesses under pressure or threat, evidence of “mischief” — all point to the “failure of justice and of the justice delivery system”.

These are among the series of observations made by Justice Abhay M Thipsay, a former judge of the Bombay High Court who ruled on four bail applications in the case, in an interview to The Indian Express. Speaking out for the first time on the case since he retired last year as judge of the Allahabad High Court in March 2017, Justice Thipsay said the Bombay High Court must exercise its powers of revision, even suo-motu if necessary, to relook at the case.
 

Describing as “absurd” the inconsistencies he found in orders passed by the special CBI court currently hearing the case in Mumbai, Thipsay said the court believed there was an abduction and a staged encounter but still discharged senior police officers. Several aspects of the case raise suspicion, he said, and are “contrary to common sense.” 

Read the full Indian Express report.

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