Waquar Hasan | Clarion IndiaNovember 2, 20210NEW DELHI – A report on the extra-judicial killings happened in Uttar Pradesh nearly four years back has blamed the India's National Human Rights Commission (NHRC) and other oversight bodies for condoning “the unconstitutional procedures followed by the police during these investigations” into the encounter killings.
The report titled “Extinguishing Law And Life; Police Killings and Cover up in the State of Uttar Pradesh” prepared by rights groups called the Youth for Human Rights Documentation (YHRD), Citizens Against Hate (CAH) and People’s Watch (PW) has studied 17 cases of extra-judicial killings that took place soon after Yogi Adityanath became chief minister of UP in 2017. On 9 May 2018, the NHRC ordered its Investigation Division to conduct fact-finding enquiries into those 17 cases of encounter deaths in UP within four weeks.
The report found that in these cases of extra-judicial killings, “the NHRC inquiries have either been closed without a proper investigation or remain pending even three years later”.
The report revealed “gross violations of law, both procedural and substantive, by the investigating agency and the judicial magistrates, in investigating these killings. Independent bodies such as the NHRC and oversight mechanisms such as magisterial inquiries have failed to identify these violations of law and have ignored factual contradictions in the police version of events. Instead, they have routinely condoned the unconstitutional procedures followed by the police during these investigations”.
The report was released online by former Supreme Court judge Justice Madan B Lokur on October 29. Justice Lokur also wrote Forward for the report lauding the significance of the report.
“Wanton killings through such unconstitutional activity are unfortunately being given a veneer of respectability through the expression “instant justice”, even though in most cases it is nothing but cold-blooded murder. The Report lays bare the stark reality of extrajudicial killings,” said Justice Lokur in the report.
Here are key findings of the report:
Of the 17 cases analysed, in not one case has an FIR been registered against the police team that was involved in the killing. Instead, in all 17 cases, FIRs have been registered against the deceased victims on charges of attempted murder under Section 307 IPC and other offences.
The FIRs registered against the deceased victims in each of the 17 cases claim an identical sequence of events leading to the killing – details of a spontaneous shoot-out between police officers and alleged criminals in which the police are fired upon, and then (in self-defence) fire back, leading to the death of one of the alleged criminals, while his accomplice always manages to escape – raising doubts about the veracity of these claims.
In violation of the guidelines of the NHRC and the Supreme Court, in a majority of cases, the initial investigation was conducted by a police officer from the same police station as the police team involved in the killing, often of the same rank as the senior most person in the “encounter” team. In all these cases, the investigation was later transferred to another Police Station, almost as if to show compliance with PUCL guidelines.
In all the cases studied in the report, the investigations conducted by the ‘independent’ investigating team of a different police station were inadequate. These investigations accept the police version that they killed the victims in “self-defence”, even though the justification of self-defence for murder has to be proved and determined through a judicial trial. The Police’s defence cannot be presumed from the police version or confirmed through an investigation. No investigation was conducted on whether the use of force was necessary and proportionate. Factual inconsistencies and contradictions were also overlooked.
In 16 out of the 17 cases analysed, the investigating officer closed the investigation by filing Closure Reports in court before the Judicial Magistrates. Overlooking the factual contradictions that emerge from the evidence, the closure report in all the 16 cases confirms the police version that the firing was in self-defence. All the cases were closed on the ground that the victims – who were named as an “accused” – were dead, and that the police could not find any information about the accomplice who escaped the crime scene. This process has been held to be unconstitutional by the High Courts and the NHRC in other instances.
In 11 out of 16 cases where a Closure Report was filed by the police, there appears to be an abdication of judicial powers by the Magistrate who has unquestioningly accepted the Closure of the investigation. By naming the deceased as “accused” in these cases, the requirement of the Court to issue notice to the victim’s family before closing the case was done away with. Instead, Magistrates issued notice to the police officer, the complainant in the FIR, who in turn gave a “no objection” letter to close the investigation. Through this process, the Judicial Magistrates accept the closure of the investigation.
The law (Section 176(1-A) of the CrPC) requires an inquiry into the cause of death to be conducted by a Judicial Magistrate, however in at least eight cases, the inquiries were conducted by an Executive Magistrate in violation of CrPC provisions. This violation also indicates that a lack of clarity in the PUCL guidelines is being taken advantage of to evade accountability. The Executive Magistrates held the police killings to be “genuine”, acting well beyond their powers and jurisdiction which is only to determine the cause of death and not determine whether an offence has been committed. The Executive Magistrates’ findings and report are based on the police version, and most reports do not even consider forensic or ballistic evidence. The statements of family members have either not been recorded or recorded in a perfunctory manner.
Three years after the NHRC directed an investigation into 17 cases detailed in this report, 14 cases have been decided, two cases are still pending and the status of one case is not available in the public domain. Out of the 14 cases decided by the NHRC, 12 cases were closed, finding no foul play on the part of the police, and one case was transferred to the UP State Human Rights Commission. In only one case, the NHRC held that the deceased was killed in a ‘fake encounter’ by the police. The other inquiries by the NHRC overlook the factual contradictions and inconsistencies in the police narrative. It also turns a blind eye to violations of procedural and substantive law, for instance, the registration of all FIRs against the deceased victims and no FIRs against the police; closing the investigation on the grounds of the police version of self-defence, no judicial determination of the justification of self-defence, violations in in the collection and securing of evidence from the scene of crime, often done by police officers belonging to the same Police Station as the police involved in the killings.
The burden of ensuring investigation and accountability falls entirely on the victims’ families. The families face intimidation, threats, and persecution through false and fabricated criminal cases. At least 13 letters have been submitted to the NHRC about the persecution by state and non-state actors of the victim families and human rights defenders providing legal aid and support to the families. The NHRC neither responded to, nor took on record the letters pertaining to persecution of victims’ families. It directed inquiries in cases of the persecution of human rights defenders but closed those inquiries as well.
This report lays bare the abject failure of the criminal justice system to ensure accountability for police killings. It shows how the justice system is unable to hold police officers to account for use of force causing death. It exposes the ambiguities and gaps in the Supreme Court’s guidelines in PUCL v. State of Maharashtra, which are effectively translating, in practice, into impunity for killings. These include introducing ambiguity on FIRs to be registered against the police, introducing vagueness which allows the plea of self-defence to be misused by the police and claimed at the stage of investigation instead of trial, ambiguity regarding mandatory inquiry by a judicial magistrate into police killings and the improbable expectation of a fair and independent investigation by the state police department into crimes by their own colleagues.