FakeEncCases

Year 1999-2000

Killing of four persons in a fake encounter by police, U.P. (CASE NO:12235/24/98-99)

--------------------------------------------------------------------------------

Shri Panna Lal Yadav, a resident of Village Daulatiya, District Varanasi, Uttar Pradesh, first by means of a telegram dated 19 October 1998 then through a longer complaint, alleged that his son Om Prakash and three others had been killed by the police in a fake encounter on 17 October 1998.

The SP, Sant Ravi Das Nagar, through a communication dated 18 October 1998 also informed the Commission that four criminals had been killed in an encounter with the police in the area of Police Station, Bhadoi on 17 October 1998. It was reported that secret information had been received by the Police that, on 17 October 1998, one Dhanjay Singh, a dreaded criminal carrying a reward of Rs. 50,000/- on his head, would commit a dacoity at the petrol pump of one Satyanarayan Harsh on the Mirzapur-Bhadoi Road. Accordingly, Shri Akhilanand Misra, Circle Officer, Bhadoi constituted three teams to track down the criminals and proceeded to the spot. At about 11.30 am, the police found four persons coming towards the petrol pump who, on seeing the police party, ran away and took shelter in the nearby bushes. They indiscriminately started firing at the police party who returned fire. After 15 minutes of firing, the police party at the site found four dead bodies, including one of the dreaded criminal, Dhanjay Singh, the son of the complainant.

The Commission found the police version unconvincing and therefore, ordered its own Investigation Wing to look into the matter. Accordingly, a team headed by a Deputy Superintendent of Police conducted an inquiry. That report indicated that the alleged encounter was a fake one. The SP, Sant Ravidas Nagar also stated that a magisterial enquiry had been ordered into the matter by the District Magistrate and the State Government had ordered the Crime Branch Central Investigation Department (CBCID) to conduct an inquiry.

On the basis of the enquiry of the CBCID, a case was subsequently registered against 36 persons including 34 police officials. The CBCID inquiry, on the basis of evidence, opined that the encounter on 17 October 1998 was a fake one and that, in fact, four innocent persons had been taken out by the police from a nearby hotel and later brutally killed.

The Commission ordered, by way of immediate interim relief, the payment of compensation of Rs. 4,00,000 each to the next of kin/families of each of the victims, namely, Shri Om Prakash alias Munna Yadav, Ajay Kumar Singh, Krisan Harijan and Shamim Natte. The Commission ordered that, in each instance, Rs. 50,000/- should be paid in cash and the remaining amount of Rs. 3,50,000/- should be put in a fixed deposit for five years in the name of next of kin of the victim in a Nationalised Bank, the interest on which should be paid at quarterly intervals to the next of kin. The Commission also recommended to the Government of UP that the CBCID enquiry should be completed expeditiously and a chargesheet filed in the competent court of law for the prosecution of the accused persons. The Commission has received a report from the Government of Uttar Pradesh stating that of Rs. 4,00,000/- recommended by the Commission, Rs. 2,00,000/- has been paid to each of the families of four victims.

The Commission has since been informed by the Government of Uttar Pradesh that the State CID has finalised its enquiry and has sought the State Government's approval for the prosecution of 34 police officials involved in the case. In addition, departmental action is also being taken against 42 police personnel found guilty of various acts of commission and omission in the matter.

COMMENT

The law in India recognizes the right of a citizen to private defence and in the course of such private defence even the causing of death can be justifiable in some circumstances. The same right of self-defence is available to a policeman. In addition, the use of force if it results in causing of death in the course of an attempt to arrest a person accused of an offence punishable with death or imprisonment for life, can also be justifiable under law. However, if a death is caused in an ecounter that cannot be justified on the ground of a legitimate exercise of the right to private defence, or in proper exercise of the power of arrest under Section 46 of Criminal Procedure Code, the police officer causing the death would be guilty of the offence of culpable homicide. Whether the causing of death in the encounter in a particular case is justified will therefore depend upon the facts established after a proper investigation.

Deeply concerned by complaints of fake encounters, the Commission laid down the procedure to be followed in all cases of encounters in its directions on complaint No.234 (1 to 6)/93-94 brought before the Commission by the Andhra Pradesh Civil Liberties Committee. That procedure, which was spelt out in a letter dated 29 March 1997 from the then Chairperson of the Commission to the Chief Ministers of all the States and Union Territories commended the following steps:

"A. When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.

B. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom.

C. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the State CID.

D. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation." Information being published on NET.