APHC muzzles cop guns

By S A Ishaqui
Hyderabad,Feb. 6: In a verdict carrying far-reaching consequences, the AP High Court on Friday ruled that an FIR should be registered against a police officer involved in an encounter, custodial death or any death at police hands.A larger bench ruled that a police officer cannot claim right of self-defence at the investigation level following an encounter.
Till now, the procedure was that police officials involved in an encounter would file a complaint alleging attempt to murder by the other party. If the target died in the encounter, they would claim self-defence. The matter would be closed at the investigation level.
Now, the court wants all the sections of the CrPC that such a case attracts to be mentioned, and investigated. The case has to be decided during the course of trial, said the larger bench headed by Justice Goda Raghuram and comprising Justices V.V.S. Rao, R. Subhash Reddy, Ramesh Rangana-than and G. Bhavani Prasad.
The verdict came on a batch of writ petitions filed by the AP Civil Liberties Committee and relatives of Maoists who were killed in encounters. The petitioners had wanted a direction to register murder cases against police personal participating in encounters.
The issue was earlier dealt with by a three-member bench, but there was a difference of opinion. Justice Bilal Nazki, who headed the bench at that time, opined that a murder case should be registered against police personnel, but the other two judges differed with the opinion. The issue came up before another three-member bench which referred it to the larger bench.
The larger bench on Friday unanimously held that an FIR should be issued according to the information received by a station house officer related to a cognisable offence.The court ruled that “where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstances (even where by a police /public official, whether an alleged perpetrator is named or not) shall be recorded and registered as an FIR enumerating the relevant provisions of law and shall be investigated.”
The court said, “the existence of circumstances bringing a case within any of the exceptions in the Indian Penal Code, 1860, including exercise of the right of private defence cannot be conclusively determined during investigation.”The court held that the final report submitted by the police officer to a magistrate on completion of the investigation is not conclusive. “It is only an opinion. Such opinion shall be considered by the magistrate in the context of the record of the investigation together with the material and evidence collected during the course of investigation”.
It said the magistrate should examine the evidence to ascertain whether the opinion of the investigation officer is borne out by the investigation. The magistrate has the discretion to disregard the opinion and take cognisance to the offence according to law.
The bench unanimously held that a magisterial inquiry (under Section 176 of the CrPC) was neither a substitute nor an alternative to the obligation to record the information as FIR and to conduct investigation.If necessary the inquiry has to take measures for the discovery and arrest of the offender under Sections 154 (1) 156 and 157 of the CrPC.
The sections deal with registering an FIR, receiving information and conducting investigation. The bench could not pronounce its opinion on whether there was an obligation to disclose the identity of a police officer who had caused the death of a person; and if there was an obligation, under what circumstances and contexts. The court said this aspect was left open.