NHRC calls for a report from the Bihar Government regarding alleged ‘fake encounter’ deaths in the State

The National Human Rights Commission has taken suo motu cognizance of press reports on the death of three persons in a police encounter in Bihar.

In this regard, the Commission has directed the Chief

Secretary and Director General of Police, Government of Bihar to take appropriate action with regard to the investigation of the case as per guidelines laid down by the Commission in the letter dated 29 March 1997, of the Chairperson of NHRC to the Chief Ministers of all States.

The Commission has called for a report from the State Government on (i) the action taken according to the guidelines of the Commission, and (ii) the final outcome thereof.

In addition, the Commission has also directed its Director General (Investigation) to ascertain the facts of the case.

Here it may be mentioned that in the letter of 29 March 1997, the then Chairperson, Justice M.N. Venkatachaliah had written “Under our laws the police have not been conferred any right to take away the life of another person. If, by this act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not, unless it is proved that such killing was not an offence under the law. Under the scheme of criminal law prevailing in India, it would not be offence if death is caused in exercise of the right of private defence. Another provision, under which the police office can justify the causing of death of another person, is section 46 of the Criminal Procedure Code. This provision authorizes the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life. It is, therefore, clear that when death is caused in an encounter, and if it is not justified as having been caused in exercise of the legitimate right of private defence, or improper exercise of the power of arrest under Section 46 of the Cr.P.C., 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 was justified as falling under any one of the two conditions, can only be ascertained by proper investigation and not otherwise. “

The procedure of investigation to be followed as stated in the letter is :



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.



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 the death to ascertain what, if any, offence was committed and by whom.



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 State CID.



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.