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Two police encounters, two states, 28 years apart. And what the courts said

The encounters in UP and Telangana, which are more than 28 years apart, show the regularity of police confrontation and celebrations of ‘instant justice’.

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There is a certain regularity about police encounters in India and a predictability about the police version of how they happen. And even when the superior judiciary is approached, it responds inconsistently. Here is a tale of two encounters, one in Uttar Pradesh and the other in Telangana, more than 28 years apart. But the wheels of justice grind slowly in both.

More than 31 years ago, on the intervening night of 12 and 13 July 1991, there were three encounters at three different places in UP’s Pilibhit district between the police and alleged Sikh militants.

The UP injustice

Ten people (none of them policemen) were killed in cold blood. The lawyer R.S. Sodhi, who later became a judge of the Delhi High Court, moved the Supreme Court almost immediately asking for an inquiry. The court asked the Additional Chief Judicial Magistrate to conduct an inquiry and submit a report. The Uttar Pradesh government also set up a one-member commission of inquiry headed by a sitting judge of the Allahabad High Court. The Supreme Court, almost a year after the incident, asked the CBI to investigate the case. There were 56 accused, of whom 10 died during the protracted trial that lasted over two decades.

In a judgment delivered as late as in April 2016, the Special Judge, CBI convicted 39 police personnel of murder under Section 302 read with Section 120B of the Indian Penal Code and sentenced them to life imprisonment.

On 16 December this year, in a disturbing and inexplicable judgment, the Lucknow bench of the Allahabad High Court altered the convictions to culpable homicide not attempting to murder under Section 304 Part I of the IPC and reduced their sentences to 7 years rigorous imprisonment. The high court, like the trial court, disbelieved the defence version that the alleged terrorists were killed in self-defence.

The high court noted that the prosecution had shown the criminal antecedents of “four to six” deceased who were involved in terrorist activities in Punjab and, to promote Khalistan, were also operating in the Terai region of Pilibhit district. However, the high court said that “it is not the duty of the police officers to kill the accused merely because he/she is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial.”

But shockingly, the learned judges said, “in the present case, there was no ill will between the appellants and the deceased persons. The appellants were public servants and their object was the advancement of public justice. No doubt, appellants exceeded the powers given to them by law, and they caused the death of the deceased by doing an act which they, in good faith, believed to be lawful and necessary for the due discharge of their duty.”

One can only hope that the CBI will appeal.

Also read: An ineffective collegium gives government an opportunity to revive NJAC 2

Another encounter same judicial fate

Fast forward to more recent times. On the evening of 27 November 2019, Disha (name changed), a young woman veterinary doctor was raped and killed on the outskirts of Hyderabad.

Three days later, the commissioner of police, Cyberabad, announced the arrest of four persons in connection with the crime. On 30 November 2019, they were remanded to judicial custody for a period of 13 days. But on 2 December 2019, the concerned judicial magistrate, on an application by the police, granted them custody for 10 days.

On 6 December 2019, all four accused were killed in a police encounter on the same outskirts of Hyderabad. The police is said to have taken them to the scene of the crime to make recoveries. The police claimed that the four accused snatched their firearms and opened fire on them — all four were killed in retaliation, according to the police. The alleged encounter was followed by public celebrations of the “instant justice” delivered. Concerned citizens, activists, and lawyers, however, moved both the Telangana High Court and the Supreme Court.

Also read: Supreme Court’s inconsistent stand on civil rights gives state a window to defeat them

First-of-its-kind recommendation

On 12 December 2019, the Supreme Court constituted a commission headed by a retired Supreme Court judge, Justice V.S. Sirpurkar. It included retired Bombay High Court Judge R.P. Sondurbaldota and former CBI Director D.R. Kaarthikeyan. The commission was to have all the requisite powers under the Commissions of Inquiry Act 1952. The Supreme Court made it clear that, until further orders from it, no other court or authority would inquire into the circumstances of the encounter.

Soon after the commission started its inquiry, the pandemic knocked on our doors. The commission braved on, marking over a thousand exhibits, receiving and analysing over 1,600 affidavits, and examining 57 witnesses. The witnesses included four IPS officers, families of the victims, ballistic experts, doctors, forensic scientists, and magistrates. It heard arguments for eight days, including “hybrid” sittings (partly physical and party online hearings).

After understandable extensions, the commission submitted an exhaustive report to the Supreme Court on 28 January 2022. It found the very identification of the four suspects in the rape and murder case to be doubtful. The commission found serious irregularities in the process of arrest and held that the four deceased were not provided legal aid and representation at the time of arrest and also at the time of their remands to judicial and police custody.

Three of the four who died in the police encounter were found to be minors, aged between 15 and 17 years. This would render the entire remand and police custody illegal. The commission concluded that the deceased suspects “were deliberately fired upon with an intent to cause their death and with the knowledge that the firing would invariably result in their death.”

It rejected the usual ‘encounter’ version of the police that claimed the four suspects had snatched police weapons and opened fire on them, and that the police had to fire back in self-defence. It found this narrative to be unbelievable.

In the first recommendation of its kind, the Sirpurkar Commission recommended the prosecution of as many as ten police officials for murder under Section 302 read with sections 34 and 201 of the IPC. The highest ranking among these was Assistant Commissioner of Police V Surender.

Having appointed the commission and called for its report, one would have expected the Supreme Court to deal with the case by itself. However, by an order of 20 May 2022, it directed the Telangana High Court to deal with the matter after considering the report of the inquiry commission and the submissions of the different parties. After a couple of initial hearings, the high court began hearing arguments last Monday, on 19 December.

The petitioners have asked for the immediate registration of FIRs against the delinquent police officials and the next date of hearing is 2 January. Forget prosecution, even disciplinary action hasn’t been initiated against errant officials.

Postscript: On Wednesday, after this article was written, news came that a CBI court in Ghaziabad has convicted five policemen for murder and sentenced them to life imprisonment for an encounter killing of a carpenter in UP’s Etah district in 2006. One hopes the Allahabad High Court doesn’t apply the “no ill-will “doctrine to them.

The author is a senior advocate. Views are personal.

(Edited by Tarannum Khan)

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