By S A Ishaqui
Hyderabad, March 30 : The state intelligence department on Monday told the Andhra Pradesh High Court it did not tap the phones nor indulged in phone bugging as alleged by the Telugu Desam leaders.
Mr K. Arvinda Rao, additional director-general of police, intelligence department submitted a counter affidavit pursuant to a notice issued by the court while dealing with a petition filed by Mr S.V.Satish Reddy, TD leader of Kadapa.
The petitioner alleged that the police were tapping his and other politicians’ phones.
While refuting the allegations of the petitioner, Mr Rao told the court that the petitioner made allegations without any knowledge of the manner in which any telephone is monitored or tapped by the police and the safeguards which have been dealt with, under the Indian Telegraph Act, 1885.
Tuesday, March 31, 2009
AP High Court asks Election Commission about voter education
By S A Ishaqui
Hyderabad, March 30 :A division bench of the Andhra Pradesh High Court comprising Justice V. Eswaraiah and Justice P.V. Sanjay Kumar on Monday expressed dissatisfaction over the Election Commission for not taking steps to educate voters.
Justice Eswaraiah said: “We are observing the election campaigns of the various political parties in the media explaining their policies and programmes, but we did not find a single advertisement or video clip issued by the EC to educate the voters.”
The judge asked the counsel for the EC, Mr S.Niranjan Reddy, “Don’t we need good governance and leaders. Who else would educate the voters except the EC? Lack of awareness on the value of vote is the root cause for the sorry state of affairs of the present political system.”
Dealing with a petition filed by Dr G. Harikishan Goud, president of the Society for Social Awareness, the court directed the EC to file an affidavit before Wednesday explaining what steps it has initiated to create awareness among the voters so far.
He said that the voters would fall into traps laid by political parties due lack of awareness of the vote value.
Hyderabad, March 30 :A division bench of the Andhra Pradesh High Court comprising Justice V. Eswaraiah and Justice P.V. Sanjay Kumar on Monday expressed dissatisfaction over the Election Commission for not taking steps to educate voters.
Justice Eswaraiah said: “We are observing the election campaigns of the various political parties in the media explaining their policies and programmes, but we did not find a single advertisement or video clip issued by the EC to educate the voters.”
The judge asked the counsel for the EC, Mr S.Niranjan Reddy, “Don’t we need good governance and leaders. Who else would educate the voters except the EC? Lack of awareness on the value of vote is the root cause for the sorry state of affairs of the present political system.”
Dealing with a petition filed by Dr G. Harikishan Goud, president of the Society for Social Awareness, the court directed the EC to file an affidavit before Wednesday explaining what steps it has initiated to create awareness among the voters so far.
He said that the voters would fall into traps laid by political parties due lack of awareness of the vote value.
Telegu Desam candidates Sixth list
Hyderabad,March 30: The Telugu Desam released its sixth list of 17 Assembly and one Lok Sabha candidates late Monday night.
Assembly seats
Gopalapuram SC: Jonnakuti Vanitha
Nuzvidu: Ch Ramakotaiah
Tenali: Alapati Rajendraprasad
Guntur West: Chukkapalli Ramesh
Macherla: Chalma Reddy
Ongole: Edara Hari Babu
Kondapi SC: Kalyani
Giddalur: Ch Linga Reddy
Gudur SC: Balli Durga Prasad
Venkatgiri: Korukonda Ramakrishna
Rajampet: Madan Mohan Reddy
Kadapa: Kandula Sivananda Reddy
Kamalapuram: P. Narasimha Reddy
Kodamur SC: Mani Gandhi
Hindupur: P. Abdul Ghani
Madanapalle: Sagar Reddy
Gandhara; Nellore SC: Gandhi
Lok Sabha seat
Kurnool: B.T. Naidu
Assembly seats
Gopalapuram SC: Jonnakuti Vanitha
Nuzvidu: Ch Ramakotaiah
Tenali: Alapati Rajendraprasad
Guntur West: Chukkapalli Ramesh
Macherla: Chalma Reddy
Ongole: Edara Hari Babu
Kondapi SC: Kalyani
Giddalur: Ch Linga Reddy
Gudur SC: Balli Durga Prasad
Venkatgiri: Korukonda Ramakrishna
Rajampet: Madan Mohan Reddy
Kadapa: Kandula Sivananda Reddy
Kamalapuram: P. Narasimha Reddy
Kodamur SC: Mani Gandhi
Hindupur: P. Abdul Ghani
Madanapalle: Sagar Reddy
Gandhara; Nellore SC: Gandhi
Lok Sabha seat
Kurnool: B.T. Naidu
Praja Rajyam candidates fourth list
Hyderabad,March 30: The Praja Rajyam on Monday released its fourth list of party candidates for four Lok Sabha and 12 Assembly seats.
Two Lok Sabha seats were allotted to Mana Party of Mr Kasani Gnaneswar as part of seat-sharing deal.
Lok Sabha seats
Mahbubnagar: B. Balaraj Goud (Mana party)
Chevella: Kasani Gnaneswar (Mana Party)
Visakhapatnam: P. Srinivas Yadav
Ankapalle: Allu Aravind
Assembly seats
Patancheru: J. Ramulu
Visakhapatnam North: S. Rehman
Visakhapatnam East: C. Vamsikrishna Yadav
Gajuwaka: Chintalapudi Venkata Ramaiah Pendurthi: P. Ramesh Yalamanchali: B. Nageswara Rao
Payakaraopeta: G. Dhanunjay
Araku (ST): Mandi Jayavati
Bheemili: M.Srinivasa Rao (Avanti Srinivas)
Chodavaram: E. Sriramamurthy
Tandur: V. Anjaneyulu
Karimnagar: K. Devender Rao
Two Lok Sabha seats were allotted to Mana Party of Mr Kasani Gnaneswar as part of seat-sharing deal.
Lok Sabha seats
Mahbubnagar: B. Balaraj Goud (Mana party)
Chevella: Kasani Gnaneswar (Mana Party)
Visakhapatnam: P. Srinivas Yadav
Ankapalle: Allu Aravind
Assembly seats
Patancheru: J. Ramulu
Visakhapatnam North: S. Rehman
Visakhapatnam East: C. Vamsikrishna Yadav
Gajuwaka: Chintalapudi Venkata Ramaiah Pendurthi: P. Ramesh Yalamanchali: B. Nageswara Rao
Payakaraopeta: G. Dhanunjay
Araku (ST): Mandi Jayavati
Bheemili: M.Srinivasa Rao (Avanti Srinivas)
Chodavaram: E. Sriramamurthy
Tandur: V. Anjaneyulu
Karimnagar: K. Devender Rao
Monday, March 30, 2009
Telugu Desam party released list of 24 assembly candidates
Hyderabad, March 30: The Telugu Desam party has released list of 24 assembly candidates and two Lok Sabha candidates.
Lok Sabha list:
Malkajgiri: Bheem Sen
Guntur: Madala Rajender
The Assembly candidates are:
Armoor: Y Annapurna
Karimnagar:Gangula Karunakar
Ibrahimpatnam: Machireddy Kishan Reddy
Alampur SC: Dr Prasanna Kumar
Kollapur: Ch Jagadeeswara Rao
Kodad: V Chandra Rao
Sathupalle (SC): Sandra Venkata Veeraiah
Amalapuram SC: A Ananda Rao
Razole SC: Battula Ramu
Rajahmundry Rural : Chandana Ramesh
Achanta: Karri Radhakrishna Reddy
Ungutur: Ganni Veeranjaneyulu
Kaikalur: Jayamangala Venkata Raman
Penamaluru:Chalasani Venkateshwara Rao
Vijayawada East: Gadde Ramamohan Rao
Nandigama SC: Tangirala Prabhakar
Sattenapalle: Rajnarayan Yadav
Gurajala: Yerapathineni Srinivasa Rao
Darsi: Manne Venkatramana
Udayagiri: K Vijayaramireddy
Ananthapur Urban: Mahalaxmi Srinivas
Kadiri: Kandikunta Venkataprasad
Punaganur: Venkataramana Raju
Chittoor: Balaji Naidu
Lok Sabha list:
Malkajgiri: Bheem Sen
Guntur: Madala Rajender
The Assembly candidates are:
Armoor: Y Annapurna
Karimnagar:Gangula Karunakar
Ibrahimpatnam: Machireddy Kishan Reddy
Alampur SC: Dr Prasanna Kumar
Kollapur: Ch Jagadeeswara Rao
Kodad: V Chandra Rao
Sathupalle (SC): Sandra Venkata Veeraiah
Amalapuram SC: A Ananda Rao
Razole SC: Battula Ramu
Rajahmundry Rural : Chandana Ramesh
Achanta: Karri Radhakrishna Reddy
Ungutur: Ganni Veeranjaneyulu
Kaikalur: Jayamangala Venkata Raman
Penamaluru:Chalasani Venkateshwara Rao
Vijayawada East: Gadde Ramamohan Rao
Nandigama SC: Tangirala Prabhakar
Sattenapalle: Rajnarayan Yadav
Gurajala: Yerapathineni Srinivasa Rao
Darsi: Manne Venkatramana
Udayagiri: K Vijayaramireddy
Ananthapur Urban: Mahalaxmi Srinivas
Kadiri: Kandikunta Venkataprasad
Punaganur: Venkataramana Raju
Chittoor: Balaji Naidu
TDP released fourth list of candidates
March 29: The TD released its fourth list of candidates for 28 Assembly and four Lok Sabha seats at wee hours of Sunday.
Lok Sabha
Rajahmundry: Murali Mohan
Narsapuram: Thota Seeta Mahalakshmi
Hindupur: Nimmala Krishnappa
Rajampet: Lakkireddy Ramesh Kumar Reddy.
Assembly seats
Khanapur (ST): Suman Radhode
Adilabad: Jogu Ramanna
Mudhole: S. Venugopalachari
Malkajgiri: Sharada Mahesh
Serilingampally: Muvva Satyanarayana
Malakpet: Md. Mujfar Alikhan
Jubilee Hills: Md Saleem
Wanaparthy: Ravulu Chandrasekhar Reddy
Mulugu (ST): D. Anasuya (Seetakka)
Yellandu (ST): Ooke Abbaiah
Ichchcpuram: Priya Sairaj
Etcherla: Nayani Suryanarayana Reddy
Visakhapatnam East: Velagapudi Ramakrishna Babu
Visakhapatnam North: Jaya
Araku Valley (ST): S. Soma
Anakapalle: Dadi Veerabhadra Rao
Yelamanchali: Lalam Bhasker Rao
Kakinada Rural: Pilli Anantha Lakshmi
Mummidivaram: Nadimpalli Srinivasa Raju
Nidadavole: Burugupalli Sesha Rao
Narsapuram: B. Narayana Rao
Denduluru: Ch. Prabhakar
Chintalapudi (SC): Dr Raja Rao
Avanigadda: Ambati Brahmanayya
Mylavaram: Devineni Umamaheswara Rao
Mantralayam: Bala Nagi Reddy
Guntakal: Sainath Goud
Kalyandurgam: Unnam Hanumantharaya Chowdary.
Lok Sabha
Rajahmundry: Murali Mohan
Narsapuram: Thota Seeta Mahalakshmi
Hindupur: Nimmala Krishnappa
Rajampet: Lakkireddy Ramesh Kumar Reddy.
Assembly seats
Khanapur (ST): Suman Radhode
Adilabad: Jogu Ramanna
Mudhole: S. Venugopalachari
Malkajgiri: Sharada Mahesh
Serilingampally: Muvva Satyanarayana
Malakpet: Md. Mujfar Alikhan
Jubilee Hills: Md Saleem
Wanaparthy: Ravulu Chandrasekhar Reddy
Mulugu (ST): D. Anasuya (Seetakka)
Yellandu (ST): Ooke Abbaiah
Ichchcpuram: Priya Sairaj
Etcherla: Nayani Suryanarayana Reddy
Visakhapatnam East: Velagapudi Ramakrishna Babu
Visakhapatnam North: Jaya
Araku Valley (ST): S. Soma
Anakapalle: Dadi Veerabhadra Rao
Yelamanchali: Lalam Bhasker Rao
Kakinada Rural: Pilli Anantha Lakshmi
Mummidivaram: Nadimpalli Srinivasa Raju
Nidadavole: Burugupalli Sesha Rao
Narsapuram: B. Narayana Rao
Denduluru: Ch. Prabhakar
Chintalapudi (SC): Dr Raja Rao
Avanigadda: Ambati Brahmanayya
Mylavaram: Devineni Umamaheswara Rao
Mantralayam: Bala Nagi Reddy
Guntakal: Sainath Goud
Kalyandurgam: Unnam Hanumantharaya Chowdary.
Sunday, March 29, 2009
CPI announces list 14 Assembly constituecies in Andhra Pradesh
Hyderabad,March 28: The CPI secretary, Mr K. Narayana, expressed unhappiness over the TD president, Mr N. Chandrababu Naidu’s, decision to allot only 14 Assembly seats to the Left ally. “We are unhappy at the way our party has been treated. We deserve more seats. But in the interests of alliance, we are accepting it,” Mr Narayana said.The CPI(M) leader, Mr B.V. Raghavulu, too expressed displeasure over delay in finalising the seats for the party. He alleged TRS was being favoured.
Meanwhile, protests by those who did not get the tickets continued. Sources in the TD said that actor Krishna was in touch with Mr Naidu over allotment of tickets to brother Adiseshagiri Rao and wife Vijayanirmala. Rumours are also afloat that former minister Mareappa may also join the TD.
CPI Assembly list
Kothagudem: K. Sambasiva Rao
Wyra: Dr Chandravati
Pinapaka: T. Venkateswarulu
Munugode: V.Y. Rao
Deverakonda: R. Kumar
Husnabad: C. Venkat Reddy
Narsapur: Ch Krishna Reddy
Bellampalli: G. Mallesh
Vijayawada West: K Subbaraju
Paderu: G. Demudu
Bahadurpura: Mir Ahmed Ali
Mangalagiri: M. Nageshwara Rao
Alur: K. Ramakrishna
Lok Sabha
Nalgonda: Suravaram Sudhakar Reddy
Mahbubabad: Kunja Srinivas.
Meanwhile, protests by those who did not get the tickets continued. Sources in the TD said that actor Krishna was in touch with Mr Naidu over allotment of tickets to brother Adiseshagiri Rao and wife Vijayanirmala. Rumours are also afloat that former minister Mareappa may also join the TD.
CPI Assembly list
Kothagudem: K. Sambasiva Rao
Wyra: Dr Chandravati
Pinapaka: T. Venkateswarulu
Munugode: V.Y. Rao
Deverakonda: R. Kumar
Husnabad: C. Venkat Reddy
Narsapur: Ch Krishna Reddy
Bellampalli: G. Mallesh
Vijayawada West: K Subbaraju
Paderu: G. Demudu
Bahadurpura: Mir Ahmed Ali
Mangalagiri: M. Nageshwara Rao
Alur: K. Ramakrishna
Lok Sabha
Nalgonda: Suravaram Sudhakar Reddy
Mahbubabad: Kunja Srinivas.
RAK Investment Authority urges AP High Court to impose cost on petitioner
By S A Ishaqui
Hyderabad, March 28 :RAK Investment Authority, an associate company of the government of RAS Al Khaimah, United Arab Emirates, has urged the Andhra Pradesh High Court to impose heavy cost on the petitioner who had filed a writ against the establishment of a multicrore Hyderabad Economic City project in Medak district.
Mr Koneru Rajendra Prasad, director of the RAK Investment Authority (RAKIA), has submitted an affidavit to the court following the notice.
The high court had granted status quo on the project on a petition filed by Captain Lingala Panduranga Reddy. Captain Reddy of Hyderabad had filed the petition challenging the project, stating that the state government had not floated global tenders for such a huge project. He contended that the allotment was against to the Andhra Pradesh (Telangana Area) Land Revenue Act 1317 Fasali.
The government had proposed to develop the project on 2,000 acres and the APIIC was appointed as a nodal agency to implement the project. The government had entered into an agreement with RAK Investment Authority of UAE to execute the project.
The government also alienated 576 acres of land to the APIIC in January and February and the APIIC took possession of the land.
Mr Prasad submitted that it is a joint venture project between the government of RAS AL Khaimah and the Andhra Pradesh Industrial Infrastructure Corporation has 26 per cent equity in the project. He said that the proposed project would cater to a pressing public need for quality health care, medical education, medical research facilities and an infrastructure hub for providing financial service.
He contended that the project was in public interest and it would result in creation of large-scale employment opportunities.
He submitted to the court that according to statistics, India had only 1.5 hospital beds per thousand people in 2001 as against the world standard of 4 beds per thousand people. Mr Prasad told the court that to reach an acceptable standard of 2 beds per 1,000 people, India will require 1.75 lakh beds by 2025. This alone would require an investment of 430 crore by 2025.
“The gap between supply and demand of hospital beds in the state is reportedly around 80,000. Similarly, there is shortfall of 35,000 nursing staff and 4,000 doctors,” he added.
Mr Prasad submitted to the court that the writ petition was wholly misconceived and has been filed in gross abuse of process of law by suppressing material information. He urged the court to vacate the interim orders passed by the court against the project.
Hyderabad, March 28 :RAK Investment Authority, an associate company of the government of RAS Al Khaimah, United Arab Emirates, has urged the Andhra Pradesh High Court to impose heavy cost on the petitioner who had filed a writ against the establishment of a multicrore Hyderabad Economic City project in Medak district.
Mr Koneru Rajendra Prasad, director of the RAK Investment Authority (RAKIA), has submitted an affidavit to the court following the notice.
The high court had granted status quo on the project on a petition filed by Captain Lingala Panduranga Reddy. Captain Reddy of Hyderabad had filed the petition challenging the project, stating that the state government had not floated global tenders for such a huge project. He contended that the allotment was against to the Andhra Pradesh (Telangana Area) Land Revenue Act 1317 Fasali.
The government had proposed to develop the project on 2,000 acres and the APIIC was appointed as a nodal agency to implement the project. The government had entered into an agreement with RAK Investment Authority of UAE to execute the project.
The government also alienated 576 acres of land to the APIIC in January and February and the APIIC took possession of the land.
Mr Prasad submitted that it is a joint venture project between the government of RAS AL Khaimah and the Andhra Pradesh Industrial Infrastructure Corporation has 26 per cent equity in the project. He said that the proposed project would cater to a pressing public need for quality health care, medical education, medical research facilities and an infrastructure hub for providing financial service.
He contended that the project was in public interest and it would result in creation of large-scale employment opportunities.
He submitted to the court that according to statistics, India had only 1.5 hospital beds per thousand people in 2001 as against the world standard of 4 beds per thousand people. Mr Prasad told the court that to reach an acceptable standard of 2 beds per 1,000 people, India will require 1.75 lakh beds by 2025. This alone would require an investment of 430 crore by 2025.
“The gap between supply and demand of hospital beds in the state is reportedly around 80,000. Similarly, there is shortfall of 35,000 nursing staff and 4,000 doctors,” he added.
Mr Prasad submitted to the court that the writ petition was wholly misconceived and has been filed in gross abuse of process of law by suppressing material information. He urged the court to vacate the interim orders passed by the court against the project.
Actor Vijayashanti contensting from Medak
Hyderabad,March 28: After much drama and pull-and-push, the Telangana Rashtra Samiti president, Mr K. Chandrasekhar Rao, shifted to the Mahbubnagar Lok Sabha constituency and made way for actor Vijayashanti from Medak.
In the process, they dislodged the TD, which had nominated Mr Jitender Reddy from Mahbubnagar. Mr Reddy is now being fielded from the Chevella LS constituency. Both Mr Rao and Ms Vijayashanti will file papers on Monday. Earlier, Mr Rao was undecided over contesting again from Karimnagar, or shifting to Medak. He filed his papers from the Medak LS seat as a precaution and requested Vijayashanti to contest from Secunderabad.
She said the seat was “risky” and wanted Mah-bubnagar. Mr Rao turned her down. Then, Vijaya-shanti homed in on Medak, and threatened she would not contest if she was denied the seat. Left with no alternative, Mr Rao requested the TD to vacate Mahbubnagar for himself and cleared Vijayashanti for Medak, ignoring warnings from party leaders that Mahbubnagar was an “untested place” for the TRS. After paying so much attention to Vijayashanti, the TRS did not nominate a single woman for the Assembly poll. Angry women activists protested at Telangana Bhavan and at Mr Rao’s residence.
They gheroed Mr Rao and blocked his car at his residence. Police and party leaders had to rescue him. Women leaders covered the statute of Telugu Talli in the Telangana Bhavan. Their protests, however, did not yield a single seat for women.
In the process, they dislodged the TD, which had nominated Mr Jitender Reddy from Mahbubnagar. Mr Reddy is now being fielded from the Chevella LS constituency. Both Mr Rao and Ms Vijayashanti will file papers on Monday. Earlier, Mr Rao was undecided over contesting again from Karimnagar, or shifting to Medak. He filed his papers from the Medak LS seat as a precaution and requested Vijayashanti to contest from Secunderabad.
She said the seat was “risky” and wanted Mah-bubnagar. Mr Rao turned her down. Then, Vijaya-shanti homed in on Medak, and threatened she would not contest if she was denied the seat. Left with no alternative, Mr Rao requested the TD to vacate Mahbubnagar for himself and cleared Vijayashanti for Medak, ignoring warnings from party leaders that Mahbubnagar was an “untested place” for the TRS. After paying so much attention to Vijayashanti, the TRS did not nominate a single woman for the Assembly poll. Angry women activists protested at Telangana Bhavan and at Mr Rao’s residence.
They gheroed Mr Rao and blocked his car at his residence. Police and party leaders had to rescue him. Women leaders covered the statute of Telugu Talli in the Telangana Bhavan. Their protests, however, did not yield a single seat for women.
Chiranjeevi's Praja Rajyam second list of candidates
By S A Ishaqui
Hyderabad, March 28 : The Praja Rajyam Party of actor-turned-politician Chiranjeevi Saturday announced candidates for 12 Lok Sabha and 60 Andhra Pradesh assembly constituencies. Mr. Allu Arvind, general secretary of the party announced the list, but his name was not reflected in the list. The earlier reports indicated that Mr Arvind will contest from Anakapalli Lok Sabha seat.
However the prominent among the Lok Sabha candidates are former MP Bhuma Nagireddy and former state minister Khaleel Basha. While Nagireddy will contest from Nandyal, Basha is the candidate for Kadapa, where Chief Minister Y.S. Rajasekhara Reddy's son Y.S. Jaganmohan Reddy is making his debut in electoral politics.
Chiranjeevi had Friday announced the first list of candidates for 100 assembly and nine Lok Sabha seats.
The other candidates for Lok Sabha candidates in the second list are:
Guntur : T. Chandrasekhar Former police officer and close aid of Chiranjeevi
Nagarkurnool : Satish Madiga
Nalgonda : P. Karuna
Peddapalli : R. David Raju
Bhongir : Chandramouli Goud
Anantapur : Mansoor
Narsaraopet : Syed Saab
Secunderabad : Shravan Kumar
Tirupati: Varaprasad Rao
Nizamabad ; P. Vijaykumar
Assembly seats
Musheerabad: P.V. Ashok; Khairatabad: N. Vijayendra; Goshamahal: M. Deepak; Yakutpura: S. Rajkumar; Bhadurpura: S. Younis Desmukh; Secunderabad: M. Sarangapani; Narayanpet: Dr Saibaba; Wanaparti: Dr B. Mudiraj; Gadwal: G. Bheemudu; Alampur (SC): S. Sobha Rani; Nagarkurnool: Dr S.K. Nurjahan; Kalvakurti: J. Chittaranjandas; Siddipet: Dr B. Narsimhachari; Narayankhed: M. Vijaypal Reddy; Narsapur: K. Ramchandra Gupta; Zaheerabad (SC): D.V. Kumar; Janagaon: J. Siddaiah; Station Ghanpur (SC): A. Ramesh; Palakurti: N. Praveen Rao; Dornakal (ST): S. Mungilal;Mahbubabad (ST): Dr Nehru Naik; Narsampet: G. Raveendar; Parakala: M. Ilayya; Warangal West: M.R. Reddy; Warangal East: E. Pradeep Rao; Wardannapet (SC): J. Jakaria; Mulugu (ST): J. Naik; Pinapaka (ST): J. Tejawath; Yellandu (ST): B.S. Naik; Khammam: E. Haribabu; Paleru: R. Nageswara Rao; Madhira (SC): Dr S. Vijaya Vani; Sattupalle: N. Ravi; Aswaraopet (ST): T. Nagender Rao; Miryalaguda: A. Amarender Reddy; Bhongir: P. Sivaraj Goud; Guduru (SC): Manapati Ravindra; Sullurpet (SC): G. Eswaramma; Kavali: Ramreddy Pratap Reddy; Udayagiri: S. Anjanadri; Rampachodavaram (ST): S. Venkateswara Rao; Medchal: T. Jangaiah Yadav; Serilingampalle: B. Ramesh; Chevella: Dr Balu Savla; Armour: B. Madhu Sekhar; Kamareddy: Dhatrik Vital; Nizamabad rural: Dr Ravinder Reddy; Vemulawada: T. Ravinder Goud; Sirpur: L.M. Patel; Chennuru (SC): Andugula Srinivas; Bellampalle (SC): A. Sridevi; Mancherial: K. Lachhanna; Asifabad (ST): A. Ramesh; Khanapur (ST): B. Chandrasekhar; Adilabad: Ch. Tirupati; Boath (ST): T. Vijaya Lakshmi; Nirmal: A. Maheswar Reddy; Muthol: G. Vittal Reddy; Kurupam (ST): N. Jairaj; Cheepurupalle: R. Suneeta
Hyderabad, March 28 : The Praja Rajyam Party of actor-turned-politician Chiranjeevi Saturday announced candidates for 12 Lok Sabha and 60 Andhra Pradesh assembly constituencies. Mr. Allu Arvind, general secretary of the party announced the list, but his name was not reflected in the list. The earlier reports indicated that Mr Arvind will contest from Anakapalli Lok Sabha seat.
However the prominent among the Lok Sabha candidates are former MP Bhuma Nagireddy and former state minister Khaleel Basha. While Nagireddy will contest from Nandyal, Basha is the candidate for Kadapa, where Chief Minister Y.S. Rajasekhara Reddy's son Y.S. Jaganmohan Reddy is making his debut in electoral politics.
Chiranjeevi had Friday announced the first list of candidates for 100 assembly and nine Lok Sabha seats.
The other candidates for Lok Sabha candidates in the second list are:
Guntur : T. Chandrasekhar Former police officer and close aid of Chiranjeevi
Nagarkurnool : Satish Madiga
Nalgonda : P. Karuna
Peddapalli : R. David Raju
Bhongir : Chandramouli Goud
Anantapur : Mansoor
Narsaraopet : Syed Saab
Secunderabad : Shravan Kumar
Tirupati: Varaprasad Rao
Nizamabad ; P. Vijaykumar
Assembly seats
Musheerabad: P.V. Ashok; Khairatabad: N. Vijayendra; Goshamahal: M. Deepak; Yakutpura: S. Rajkumar; Bhadurpura: S. Younis Desmukh; Secunderabad: M. Sarangapani; Narayanpet: Dr Saibaba; Wanaparti: Dr B. Mudiraj; Gadwal: G. Bheemudu; Alampur (SC): S. Sobha Rani; Nagarkurnool: Dr S.K. Nurjahan; Kalvakurti: J. Chittaranjandas; Siddipet: Dr B. Narsimhachari; Narayankhed: M. Vijaypal Reddy; Narsapur: K. Ramchandra Gupta; Zaheerabad (SC): D.V. Kumar; Janagaon: J. Siddaiah; Station Ghanpur (SC): A. Ramesh; Palakurti: N. Praveen Rao; Dornakal (ST): S. Mungilal;Mahbubabad (ST): Dr Nehru Naik; Narsampet: G. Raveendar; Parakala: M. Ilayya; Warangal West: M.R. Reddy; Warangal East: E. Pradeep Rao; Wardannapet (SC): J. Jakaria; Mulugu (ST): J. Naik; Pinapaka (ST): J. Tejawath; Yellandu (ST): B.S. Naik; Khammam: E. Haribabu; Paleru: R. Nageswara Rao; Madhira (SC): Dr S. Vijaya Vani; Sattupalle: N. Ravi; Aswaraopet (ST): T. Nagender Rao; Miryalaguda: A. Amarender Reddy; Bhongir: P. Sivaraj Goud; Guduru (SC): Manapati Ravindra; Sullurpet (SC): G. Eswaramma; Kavali: Ramreddy Pratap Reddy; Udayagiri: S. Anjanadri; Rampachodavaram (ST): S. Venkateswara Rao; Medchal: T. Jangaiah Yadav; Serilingampalle: B. Ramesh; Chevella: Dr Balu Savla; Armour: B. Madhu Sekhar; Kamareddy: Dhatrik Vital; Nizamabad rural: Dr Ravinder Reddy; Vemulawada: T. Ravinder Goud; Sirpur: L.M. Patel; Chennuru (SC): Andugula Srinivas; Bellampalle (SC): A. Sridevi; Mancherial: K. Lachhanna; Asifabad (ST): A. Ramesh; Khanapur (ST): B. Chandrasekhar; Adilabad: Ch. Tirupati; Boath (ST): T. Vijaya Lakshmi; Nirmal: A. Maheswar Reddy; Muthol: G. Vittal Reddy; Kurupam (ST): N. Jairaj; Cheepurupalle: R. Suneeta
Saturday, March 28, 2009
Praja Rajyam candidates list
By S A Ishaqui
Hyderabad, March 27: Mr Chiranjeevi would be contesting the April 23 Assembly election from the temple town of Tirupati. He announced a list of 100 candidates contesting for the Assembly constituency and nine for the Parliament seats.
Praja Rajyam chief, who was camping in Jaggampet in East Godavari district released the list on the occasion of 'Ugadi' (Telugu New Year's Day).PRP general secretary Allu Aravind will contest for the Anakapalle Lok Sabha seat.
Former minister T Devender Goud, who merged his Nava Telangana Party with the PRP last month, is being fielded to the Lok Sabha from the newly-created Malkajgiri constituency.Retired Indian Police Service officer D T Naik is being fielded from Mahbubabad (ST) Lok Sabha constituency in Warangal district.
Lok Sabha
Adilabad (ST): M. Naga Rao; Karimnagar: V. Rajendra; Zahirabad: S. Lingayet; Malkajgiri: T. Devender Goud; Hyderabad: Fatima Begum; Warangal (SC): Dr Rajamouli; Mahbubabad (ST): D.T. Naik; Araku (ST): M. Simhachalam; Srikakulam: V. Kalyani
Assembly seats
Srikakulam
Itchapuram: V. Seshagiri Rao; Palasa: V. Nageswara Rao; Tekkali: D. Srinivas; Pathapatnam: P. Karunakar; Srikakulam: Korni Pratap; Amadalavalasa: Tammineni Sitaram; Narasannapeta: Dola Jagan; Etcherla: K.K. Venkata Rao; Rajam (SC): K. Jogulu; Palakonda (ST): Viswasaraya Kalavati;
Vizianagaram
Parvathipuram (SC): Rettapally Lalita; Salur (ST): T. Hanumanta Rao; Bobbili: M. Venkata Ramana; Gajapathinagaram: K. Srinivas; Nellimarla: Kandula Raghu Babu; Vizianagaram: M. Geeta;
Visakhapatnam
Srungavarapukota: G. Maheswara Rao; Madugula: Paila Prasada Rao; Paderu (ST): T. Krishnaveni; Narsipatnam: R. Yerra Pathrudu;
Nizamabad
Bodhan: Captain Karunakar Reddy; Jukkal (SC): Aruna Tara; Banswada: Kasula Bala Raju; Nizamabad (Urban): Rahim; Balkonda: Y. Anil;
Karimnagar
Korutla: Sunil Venkat; Jagitial: Dr Chandrasekhar Goud; Dharmapuri (SC): Geddam Rajesh; Manthani: Putta Madhu; Peddpalle: Vemula Sasirekha Rammurthy; Choppadandi (SC): G. Lavanya; Sircilla: Gajula Balaiah; Manakondur (SC): K. Satyanarayana; Huzurabad: Pingali Venkateswar Reddy; Husnabad: E. Peddi Reddy;
Medak
Medak: Batti Jagapati; Andole: Malyala Sridhar; Dubbak: Nageswar Reddy;
Ranga Reddy & Hyderabad
Malkajgiri: Kanaka Reddy; Kukatpally: Kuna Venkatesh Goud; Uppal: A.Narendra; Lal Bahadur Nagar: Sama Ranga Reddy; Maheswaram: A.V.N. Reddy; Rajendranagar: Sama Rajpal Reddy; Malakpet: Karate Raju; Amberpet: Gopagani Srinivasa Goud; Jubilee Hills: Humayun; Sanathnagar: P.L. Mahender; Nampally: Md. Feroz Khan; Karwan: P. Venkata Krishna; Charminar: Mir Yousef Ali; Secunderbad Cant. (SC): Narra Ravi Kumar; Chandrayangutta: Raju Yadav;
Mahabubnagar
Atchampet: P. Muneendranath; Devarkadra: K.S. Ravi Kumar;
Nalgonda
Devarakonda (ST): Ramesh Naik; Nagarjunasagar: Ramachandra Naik; Huzurnagar: M. Srinivas; Kodad: Jagadam Sudhakar; Suryapet: D. Goud; Nalgonda: D. Narsimha Reddy; Nakirekal (SC): Daida Sravan; Tungaturthi: J. Sunder Rao; Alair: Sobha Rani;
Khammam
Wyra (ST): Banothu Vani Kumari; Kothagudem: Y. Krishna; Bhadrachalam (ST): Gundu Sharath;
Chittoor
Tamballpalle: Kalicharla Prabhakar Reddy; Peeleru: Chintala Ramachandra Reddy; Chandragiri: Saikam Jayachandra Reddy; Nagari: Sudarshana Verma; Chittore: J.M.C. Srinivasulu;
Kurnool
Allagadda: Bhuma Sobhanagi Reddy; Srisailam: Budda Sesha Reddy; Panyam: D. Vishnuvardhan Reddy; Nandyal: A.V. Subba Reddy; Banganapalle: Katasani Rami Reddy; Dhone: M. Govinda Rajulu; Kodumuru: B. Karunaker; Aluru: G. Jayaram;
Ananthpur
Rayadurgam: B. Manohar; Tadipatri: Paila Narsimhaiah; Anantapur: T.J. Prakash; Kalyanadurgam: K. Ramanna; Kadiri: Dr Sidda Reddy; Penukonda: K. Ramesh Babu; Uravakonda: Chennakesava Rao;
Kadapa
Proddutur: M.V. Muralidhar Reddy; Jammalamadugu: Vangala Nagendra Yadav; Badwel: S. Venkateswarlu;
Prakasam
Giddaluru: M. Rambabu;
Krishna
Machilipatnam: Buragadda Vedavyas; Kaikaluru: Kamineni Srinivas; Gudivada: Ravi Venkateswara Rao; Nuziveedu: M. Vijaya Nirmala.
Hyderabad, March 27: Mr Chiranjeevi would be contesting the April 23 Assembly election from the temple town of Tirupati. He announced a list of 100 candidates contesting for the Assembly constituency and nine for the Parliament seats.
Praja Rajyam chief, who was camping in Jaggampet in East Godavari district released the list on the occasion of 'Ugadi' (Telugu New Year's Day).PRP general secretary Allu Aravind will contest for the Anakapalle Lok Sabha seat.
Former minister T Devender Goud, who merged his Nava Telangana Party with the PRP last month, is being fielded to the Lok Sabha from the newly-created Malkajgiri constituency.Retired Indian Police Service officer D T Naik is being fielded from Mahbubabad (ST) Lok Sabha constituency in Warangal district.
Lok Sabha
Adilabad (ST): M. Naga Rao; Karimnagar: V. Rajendra; Zahirabad: S. Lingayet; Malkajgiri: T. Devender Goud; Hyderabad: Fatima Begum; Warangal (SC): Dr Rajamouli; Mahbubabad (ST): D.T. Naik; Araku (ST): M. Simhachalam; Srikakulam: V. Kalyani
Assembly seats
Srikakulam
Itchapuram: V. Seshagiri Rao; Palasa: V. Nageswara Rao; Tekkali: D. Srinivas; Pathapatnam: P. Karunakar; Srikakulam: Korni Pratap; Amadalavalasa: Tammineni Sitaram; Narasannapeta: Dola Jagan; Etcherla: K.K. Venkata Rao; Rajam (SC): K. Jogulu; Palakonda (ST): Viswasaraya Kalavati;
Vizianagaram
Parvathipuram (SC): Rettapally Lalita; Salur (ST): T. Hanumanta Rao; Bobbili: M. Venkata Ramana; Gajapathinagaram: K. Srinivas; Nellimarla: Kandula Raghu Babu; Vizianagaram: M. Geeta;
Visakhapatnam
Srungavarapukota: G. Maheswara Rao; Madugula: Paila Prasada Rao; Paderu (ST): T. Krishnaveni; Narsipatnam: R. Yerra Pathrudu;
Nizamabad
Bodhan: Captain Karunakar Reddy; Jukkal (SC): Aruna Tara; Banswada: Kasula Bala Raju; Nizamabad (Urban): Rahim; Balkonda: Y. Anil;
Karimnagar
Korutla: Sunil Venkat; Jagitial: Dr Chandrasekhar Goud; Dharmapuri (SC): Geddam Rajesh; Manthani: Putta Madhu; Peddpalle: Vemula Sasirekha Rammurthy; Choppadandi (SC): G. Lavanya; Sircilla: Gajula Balaiah; Manakondur (SC): K. Satyanarayana; Huzurabad: Pingali Venkateswar Reddy; Husnabad: E. Peddi Reddy;
Medak
Medak: Batti Jagapati; Andole: Malyala Sridhar; Dubbak: Nageswar Reddy;
Ranga Reddy & Hyderabad
Malkajgiri: Kanaka Reddy; Kukatpally: Kuna Venkatesh Goud; Uppal: A.Narendra; Lal Bahadur Nagar: Sama Ranga Reddy; Maheswaram: A.V.N. Reddy; Rajendranagar: Sama Rajpal Reddy; Malakpet: Karate Raju; Amberpet: Gopagani Srinivasa Goud; Jubilee Hills: Humayun; Sanathnagar: P.L. Mahender; Nampally: Md. Feroz Khan; Karwan: P. Venkata Krishna; Charminar: Mir Yousef Ali; Secunderbad Cant. (SC): Narra Ravi Kumar; Chandrayangutta: Raju Yadav;
Mahabubnagar
Atchampet: P. Muneendranath; Devarkadra: K.S. Ravi Kumar;
Nalgonda
Devarakonda (ST): Ramesh Naik; Nagarjunasagar: Ramachandra Naik; Huzurnagar: M. Srinivas; Kodad: Jagadam Sudhakar; Suryapet: D. Goud; Nalgonda: D. Narsimha Reddy; Nakirekal (SC): Daida Sravan; Tungaturthi: J. Sunder Rao; Alair: Sobha Rani;
Khammam
Wyra (ST): Banothu Vani Kumari; Kothagudem: Y. Krishna; Bhadrachalam (ST): Gundu Sharath;
Chittoor
Tamballpalle: Kalicharla Prabhakar Reddy; Peeleru: Chintala Ramachandra Reddy; Chandragiri: Saikam Jayachandra Reddy; Nagari: Sudarshana Verma; Chittore: J.M.C. Srinivasulu;
Kurnool
Allagadda: Bhuma Sobhanagi Reddy; Srisailam: Budda Sesha Reddy; Panyam: D. Vishnuvardhan Reddy; Nandyal: A.V. Subba Reddy; Banganapalle: Katasani Rami Reddy; Dhone: M. Govinda Rajulu; Kodumuru: B. Karunaker; Aluru: G. Jayaram;
Ananthpur
Rayadurgam: B. Manohar; Tadipatri: Paila Narsimhaiah; Anantapur: T.J. Prakash; Kalyanadurgam: K. Ramanna; Kadiri: Dr Sidda Reddy; Penukonda: K. Ramesh Babu; Uravakonda: Chennakesava Rao;
Kadapa
Proddutur: M.V. Muralidhar Reddy; Jammalamadugu: Vangala Nagendra Yadav; Badwel: S. Venkateswarlu;
Prakasam
Giddaluru: M. Rambabu;
Krishna
Machilipatnam: Buragadda Vedavyas; Kaikaluru: Kamineni Srinivas; Gudivada: Ravi Venkateswara Rao; Nuziveedu: M. Vijaya Nirmala.
Praja Rajyam aspirant faces inquiry
By S A Ishaqui
Hyderabad, March 27 : A division bench comprising the Chief Justice, Anil R. Dave, and Justice B. Subhash Reddy of the AP High Court has directed the West Godavari District collector to conduct an inquiry into the genuiness of the caste certificate of an aspirant of Praja Rajyam for the Polavaram Assembly seat.
The court was dealing with a petition filed by Mr G. Anil Kumar. The petitioner said one Mr B. Srinivas started campaigning on March 2 claiming that PR assured him of a ticket.
The petitioner said the Polavaram segment has been reserved for STs and Mr Srinivas belongs to BC community. He alleged that despite lodging a complaint with the district officials, no action was taken.
Hyderabad, March 27 : A division bench comprising the Chief Justice, Anil R. Dave, and Justice B. Subhash Reddy of the AP High Court has directed the West Godavari District collector to conduct an inquiry into the genuiness of the caste certificate of an aspirant of Praja Rajyam for the Polavaram Assembly seat.
The court was dealing with a petition filed by Mr G. Anil Kumar. The petitioner said one Mr B. Srinivas started campaigning on March 2 claiming that PR assured him of a ticket.
The petitioner said the Polavaram segment has been reserved for STs and Mr Srinivas belongs to BC community. He alleged that despite lodging a complaint with the district officials, no action was taken.
APCC lodges complaint against NGO
By S A Ishaqui
Hyderabad,March 27: The AP Congress Committee has lodged a complaint with the AP High Court that the Campaign for Housing and Tenural Rights (CHATRI), a voluntary organisation, has been misusing law to intimidate and extract benefits from it.
The APCC president, Mr D. Srinivas, submitted an affidavit to the court pursuant to a notice issued by it in connection with the Bhimraobada land controversy.
CHATRI has filed a petition in the court seeking a direction to cancel the land allotment to APCC for constructing its party headquarters.
Mr Srinivas told the court that the claim of the petitioner, which is fighting for the welfare and interest of the needy poor, was not true. He alleged that the activity of CHATRI is only in filing cases against different companies, organisations and individuals.
“This itself shows its litigant attitude and in these circumstances, we could understand the motive of the petitioner,” he added.
Mr Srinivas told the court that the allotment of land in their favour with nominal consideration was subject to the relaxation of the earlier GO and issuing of a new GO based on the factual situation and circumstances of the matter.
He said land was allotted for APCC keeping in view the history and sacrifices made by the party but not for the purpose of monetary benefit to the government. He added that the question of public auction by inviting tenders does not arise.
The APCC president urged the court to dismiss the petition as it was filed with an ulterior motive with costs.
SC gives Chiranjeevi rail engine
Hyderabad , March 27: The Supreme Court on Friday handed a Ugadi gift to actor-politician Chiranjeevi, directing the Election Commission to give the Praja Rajyam a common symbol for the forthcoming elections. The PR will get the rail engine symbol that it opted for.
The MDMK (Desiya Murpu Dravida Kazhagam) of Vijayakanth in Tamil Nadu got the nagara (drum) and the Lok Satta the whistle. The apex court brushed aside objections of the Election Commission that allotting symbols after the election had been notified would be difficult.
Chiranjeevi, who was informed about the order during a campaign stop at Peddapuram in East Godavari district, said, “We believe in God and the judicial system.”
“Securing a common symbol is a good omen on Ugadi. This will be a harbinger of the good things,” he told cheering fans.
Party supporters brought toy rail engines, and Chiranjeevi held up one of them. “The train stands for social justice as it has a number of compartments to accommodate different sections of people who are taken to their destinations,” he said.
But this is an interim measure and the parties will have to approach the EC for a permanent symbol. “Most of the voters are illiterate and they go by the symbols of the candidates,” said a bench comprising Chief Justice K.G. Balakrishnan and Justice P. Sathasivam.
The Supreme Court also stayed an AP High Court order which had directed the EC to allot common symbols to recognised political parties in the state.
Earlier, Chiranjeevi released the first list for 100 Assembly segments and nine Lok Sabha seats at 9.27 am after taking part in a Panchanga Sravanam.
He said 48 seats were allocated to BCs, 27 for OCs, 13 for SCs, seven for STs and five for minorities.
Courtesy www. deccan.com
The MDMK (Desiya Murpu Dravida Kazhagam) of Vijayakanth in Tamil Nadu got the nagara (drum) and the Lok Satta the whistle. The apex court brushed aside objections of the Election Commission that allotting symbols after the election had been notified would be difficult.
Chiranjeevi, who was informed about the order during a campaign stop at Peddapuram in East Godavari district, said, “We believe in God and the judicial system.”
“Securing a common symbol is a good omen on Ugadi. This will be a harbinger of the good things,” he told cheering fans.
Party supporters brought toy rail engines, and Chiranjeevi held up one of them. “The train stands for social justice as it has a number of compartments to accommodate different sections of people who are taken to their destinations,” he said.
But this is an interim measure and the parties will have to approach the EC for a permanent symbol. “Most of the voters are illiterate and they go by the symbols of the candidates,” said a bench comprising Chief Justice K.G. Balakrishnan and Justice P. Sathasivam.
The Supreme Court also stayed an AP High Court order which had directed the EC to allot common symbols to recognised political parties in the state.
Earlier, Chiranjeevi released the first list for 100 Assembly segments and nine Lok Sabha seats at 9.27 am after taking part in a Panchanga Sravanam.
He said 48 seats were allocated to BCs, 27 for OCs, 13 for SCs, seven for STs and five for minorities.
Courtesy www. deccan.com
Thursday, March 26, 2009
Prajarajyam gets hope for symbol
By S A Ishaqui
Hyderabad, March 25 : The AP High Court on Wednesday directed the Election Commission to consider applications of registered political parties seeking common free symbols in the coming polls.
A division bench comprising Justice V. Eswaraiah and Justice P.V.Sanjay Kumar gave the directive while quashing the order passed by the EC rejecting the plea by Lok Satta for a common symbol.
The HC order revives the hopes of the Praja Rajyam to get a common symbol.
A division bench comprising Justice V. Eswaraiah and Justice P.V.Sanjay Kumar gave the directive while quashing the order passed by the EC rejecting the plea by Lok Satta for a common symbol.
The HC order revives the hopes of the Praja Rajyam to get a common symbol.
However, sources in the EC told this correspondent that it will challenge this order before the apex court. They said that Article 329 bars the courts from intervening in the election process once the notification was issued.Allotment of a common free symbol to any party at this stage is an integralpart of the election process.
While directing the commission to take up the exercise for allotment of free symbols to all the registred\unrecognised political parties, the court rejected the contention of the EC that Para 12 of the Symbol Allotment Order 1968 is coming in their way for the allotment of common symbol.
The court said Article 324 of the Constitution and Para 12 of the Symbol Order would give power to the EC to consider the cases , which are not covered under the Symbol Order 1968.
The judges said " we disagree with the contention of the EC that the prayer of the registered\unrecognised parties can be considered at the time of scrutiny of the nomination. we rejected the contention".
The bench of the opinion that it would be appropriate for the EC take up the exercise at state level by putting on notice to all the registered \unrecognisedpolitical parties for allotment of common symbol.
The court observed that it would help in conducting elections in a free and fair manner.While directing the EC to consider the application of the petitioner to allot acommon symbol afresh , the court also disagreed with the contention of the EC that it did not have a power to allot a common symbol.
Meanwhile Chief Electoral Officer Dr IV Subba Rao said he was orallyinformed by the advocate that the High Court wanted the EC to invite the representation from the registered parties and considered their application for free symbol.
"I Informed the Chief Election Commissioner about the development , It is for the EC to take a decision. He refused to comment on whether the courts can interfere in the election process once the notification was issued".
Stay on case against judge
By S A Ishaqui
Hyderabad, March 25 :The Andhra Pradesh High Court on Wednesday granted a stay on proceedings pending in a lower court against the second additional district and sessions judge, Mr K.V. Vijayakumar, the senior civil judge, Mr D. Abbulu and the special deputy collector, Mr A.Venkateswar Rao, in connection with the Rs 3-crore lower maneru dam compensation scam in Karimnagar district.
The petitions were filed in the high court seeking a direction to quash the proceedings initiated against them for allegedly being involved in awarding compensation in 28 land acquisition cases where scamsters had produced fake documents purportedly issued by the Andhra Pradesh High Court.
The allegations against them were that the actual landowners had already taken the compensation after which the alleged scamsters posed as the landowners and sought an exorbitantly higher compensation said to have been awarded by the high court.
The lower maneru dam scam involved an amount of Rs 3.09 crore that was embezzled between 2000 and 2005.
Hyderabad, March 25 :The Andhra Pradesh High Court on Wednesday granted a stay on proceedings pending in a lower court against the second additional district and sessions judge, Mr K.V. Vijayakumar, the senior civil judge, Mr D. Abbulu and the special deputy collector, Mr A.Venkateswar Rao, in connection with the Rs 3-crore lower maneru dam compensation scam in Karimnagar district.
The petitions were filed in the high court seeking a direction to quash the proceedings initiated against them for allegedly being involved in awarding compensation in 28 land acquisition cases where scamsters had produced fake documents purportedly issued by the Andhra Pradesh High Court.
The allegations against them were that the actual landowners had already taken the compensation after which the alleged scamsters posed as the landowners and sought an exorbitantly higher compensation said to have been awarded by the high court.
The lower maneru dam scam involved an amount of Rs 3.09 crore that was embezzled between 2000 and 2005.
AP High Court reserved its order on Muslim bill
By S A Ishaqui
Hyderabad, March 25 : A larger benchof the Andhra Pradesh High Court reserved its order on the Muslim Reservation Bill on Wednesday.
The bench comprising Chief Justice Anil R. Dave, Justice T. Meena Kumari, Justice B. Prakasha Rao, Justice D.S.R. Varma, Justice A. Gopala Reddy, Justice V. Eswariah and Justice Goda Raghu Ram, declared that the arguments were over on a batch of writ petitions filed in support of and against the state government providing reservations for some sections of the Muslims.
The bench also permitted the petitioners and the respondents to submit their written arguments within a week.
The writ petitions were filed in August 2007. A five-member bench heard the arguments and later decided to refer the case to a larger bench. Subsequently, the case was referred to the seven-member bench in January 2008.
The petitioners argued that the report of the Andhra Pradesh Commission for Backward Classes was erroneous and all the directions in the earlier judgments were violated.
They raised various other contentions about the action of the government in choosing the Muslim community when applications from 125 other groups from the Hindu community were pending.
The bench comprising Chief Justice Anil R. Dave, Justice T. Meena Kumari, Justice B. Prakasha Rao, Justice D.S.R. Varma, Justice A. Gopala Reddy, Justice V. Eswariah and Justice Goda Raghu Ram, declared that the arguments were over on a batch of writ petitions filed in support of and against the state government providing reservations for some sections of the Muslims.
The bench also permitted the petitioners and the respondents to submit their written arguments within a week.
The writ petitions were filed in August 2007. A five-member bench heard the arguments and later decided to refer the case to a larger bench. Subsequently, the case was referred to the seven-member bench in January 2008.
The petitioners argued that the report of the Andhra Pradesh Commission for Backward Classes was erroneous and all the directions in the earlier judgments were violated.
They raised various other contentions about the action of the government in choosing the Muslim community when applications from 125 other groups from the Hindu community were pending.
Wednesday, March 25, 2009
A relief to Telangana KCR
By S A Ishaqui
Hyderabad, March 24 :A division bench comprising Justice V Eswaraiah and Justice P V SanjayKumar on Tuesday granted stay on the criminal proceedings launched against Mr. K Chandrasekhara Rao, president of Telangana Rashtra Samithi,by the Election Commission on him.
The EC on May 30, 2008 lodged complaints against Mr Rao onthe alleged violation of the provisions of Section 126 (1) (b) of the Representation of the People Act 1951, during the by-elections.
The police registered cases against Mr KCR in Hyderabad, Warangal,Mahabubnagar, Karimnagar, Nizamabad, Medak, Nalgonda, Adilabad andRanga Reddy districts.
On Monday, Mr KCR approached the AP High Court seeking a direction to quash all the criminal proceedings pending against him in nine districts of Telangana.
He contended that there was no violation of provisions of the RP Act.Dealing with the petition the court directed the police to stop all the further proceedings till further orders
Hyderabad, March 24 :A division bench comprising Justice V Eswaraiah and Justice P V SanjayKumar on Tuesday granted stay on the criminal proceedings launched against Mr. K Chandrasekhara Rao, president of Telangana Rashtra Samithi,by the Election Commission on him.
The EC on May 30, 2008 lodged complaints against Mr Rao onthe alleged violation of the provisions of Section 126 (1) (b) of the Representation of the People Act 1951, during the by-elections.
The police registered cases against Mr KCR in Hyderabad, Warangal,Mahabubnagar, Karimnagar, Nizamabad, Medak, Nalgonda, Adilabad andRanga Reddy districts.
On Monday, Mr KCR approached the AP High Court seeking a direction to quash all the criminal proceedings pending against him in nine districts of Telangana.
He contended that there was no violation of provisions of the RP Act.Dealing with the petition the court directed the police to stop all the further proceedings till further orders
AP High Court tells Election Commission to educate voters
By S A Ishaqui
Hyderabad, March 24 :The AP High Court on Tuesday suggested the Election Commission to takeup an awareness campaign to educate voters about the importance of vote.
Dealing with a petition filed by Dr G Harikishan Goud, president of the Society for Social Awareness, a division bench comprising Justice V Eswaraiah and Justice P V Sanjay Kumar, observed that " the EC plays akey role in this regard, at least do this time to educate poor illiterate voters in exercising their ballots, so that they can elect a right person".
Justice Eswaraiah said, "Don't we need good governance and good leaders.Who else would educate the voters except the EC. Lack of awareness on the value of vote is the root cause for the sorry state of affairs of the present political system."
The bench told the EC to use the media to educate the voters. It asked theEC to involve all political parties in the campaign.The court asked the EC's counsel, Mr T Niranjan Reddy to apprise the bench on the steps initiated by the EC so far to educate the voters.
Mr Reddy said he will file an affidavit on the issue. He told the court since the introduction of model code there were lot of changes in conducting the elections. Mr Reddy said that the EC has been effectively implementing the code, it will not spare anyone breaching the code.
The court asked the counsel to initiate the steps to educate the voters,otherwise it will pass an order in this regard.
Mr Niranjan Reddy told thecourt that he would get back on Monday with all information.
However , the petitioner urged the court to direct the state government to take up a campaign to create awareness among the voters.
Hyderabad, March 24 :The AP High Court on Tuesday suggested the Election Commission to takeup an awareness campaign to educate voters about the importance of vote.
Dealing with a petition filed by Dr G Harikishan Goud, president of the Society for Social Awareness, a division bench comprising Justice V Eswaraiah and Justice P V Sanjay Kumar, observed that " the EC plays akey role in this regard, at least do this time to educate poor illiterate voters in exercising their ballots, so that they can elect a right person".
Justice Eswaraiah said, "Don't we need good governance and good leaders.Who else would educate the voters except the EC. Lack of awareness on the value of vote is the root cause for the sorry state of affairs of the present political system."
The bench told the EC to use the media to educate the voters. It asked theEC to involve all political parties in the campaign.The court asked the EC's counsel, Mr T Niranjan Reddy to apprise the bench on the steps initiated by the EC so far to educate the voters.
Mr Reddy said he will file an affidavit on the issue. He told the court since the introduction of model code there were lot of changes in conducting the elections. Mr Reddy said that the EC has been effectively implementing the code, it will not spare anyone breaching the code.
The court asked the counsel to initiate the steps to educate the voters,otherwise it will pass an order in this regard.
Mr Niranjan Reddy told thecourt that he would get back on Monday with all information.
However , the petitioner urged the court to direct the state government to take up a campaign to create awareness among the voters.
Friday, March 20, 2009
AP High Court asks political parties to file IT returns
By S A Ishaqui
Hyderabad, March 19 :A division bench comprising Chief Justice Anil R Dave and Justice RameshRanganathan of the AP High Court on Thursday issued notices to the seven major political parties, including Praja Rajyam, seeking their version on their alleged failure to file income tax returns as per the provisions of the Income Tax Act.
The bench was dealing with a public interest litigation filed by Mr J Narayana Swamy, an advocate of Ananthpur .
According to the petitioner, Section 29 (B) of the Representation of PeoplesAct 1951, envisages the recognised parties to accept contributions from the individuals as well as the organisations. During the amendment to the RPAct , Section 29 (C) was incorporated to curtail the black money role in the election and spending by candidates.
The relevant Section mandates the political parties to file their tax returns under Section 13 A and Section 139 of the Income Tax Act.The petitioner alleged that Congress, Telugu Desam , BJP , CPI, CPM ,TRS, and Praja Rajyam parties did not file the returns since years.
He urged the court to direct the Election Commission to stop the benefits which are being enjoyed by the political parties under Section 78A and 78B and the allotment of common symbol until all the parties comply with the mandatory provisions under the Act.
He also urged the court to direct theEC to derecognise the parties.The Court asked the petitioner to take the notices on behalf of all the political parties and serve them ,so they can file their versions on the allegations levelled against them in the petition.
The court also asked theCentre and state governments and the EC to file their counter affidavits. Thecourt granted four weeks to the respondents to file their replies
Hyderabad, March 19 :A division bench comprising Chief Justice Anil R Dave and Justice RameshRanganathan of the AP High Court on Thursday issued notices to the seven major political parties, including Praja Rajyam, seeking their version on their alleged failure to file income tax returns as per the provisions of the Income Tax Act.
The bench was dealing with a public interest litigation filed by Mr J Narayana Swamy, an advocate of Ananthpur .
According to the petitioner, Section 29 (B) of the Representation of PeoplesAct 1951, envisages the recognised parties to accept contributions from the individuals as well as the organisations. During the amendment to the RPAct , Section 29 (C) was incorporated to curtail the black money role in the election and spending by candidates.
The relevant Section mandates the political parties to file their tax returns under Section 13 A and Section 139 of the Income Tax Act.The petitioner alleged that Congress, Telugu Desam , BJP , CPI, CPM ,TRS, and Praja Rajyam parties did not file the returns since years.
He urged the court to direct the Election Commission to stop the benefits which are being enjoyed by the political parties under Section 78A and 78B and the allotment of common symbol until all the parties comply with the mandatory provisions under the Act.
He also urged the court to direct theEC to derecognise the parties.The Court asked the petitioner to take the notices on behalf of all the political parties and serve them ,so they can file their versions on the allegations levelled against them in the petition.
The court also asked theCentre and state governments and the EC to file their counter affidavits. Thecourt granted four weeks to the respondents to file their replies
Wednesday, March 18, 2009
Chiranjeev's party retreats from symbol fray: it likely to opt Chamling's umbrella
By S A Ishaqui
Hyderabad, March 17 :Praja Rajyam on Tuesday strategically retreated from the legal fight to get a common symbol for itscandidates from the Election Commission of India. The PRP sought the EC to allot the Rail Engine symbolto it.
According to legal experts close to the PRP now it will be in the election fray with `Umbrella' symbol. Ithad came to an understanding with Mr Pavan Kumar Chamling, Chief Minister of Sikkim and also the chiefof the Sikkim Democratic Front.Sikkim Democratic Front is a recognised political party and fought in 1994, 1999 and 2004 election withthe umbrella symbol.
Mr P Shiva Shankar, former union law minister, who is now member of political affairs committee of thePRP was the keyman to have a deal with Mr Chamling. Mr Shiva Shankar served as the governor of Sikkimin 1994 and is said to have good rapport with Mr Chamling.
Sources in the PR said that one former Election Commissioners has also put in his efforts to have a dealwith SDF to use its symbol in the ensuing election.
The legal fraternity in the High Court was surprised when Mr Vedula Venkata Ramana , counsel for thePRP requested the division bench comprising Justice B Prakash Rao and Justice G Bhavani Prasad in thepost lunch session to permit them to withdraw the petition filed against the EC's rejection order on thesymbol issue.
He told the court that his client instructed him to withdrew the petition.Before, the submission for withdrawal of plea by Mr Venkata Ramana there was another development inthe High Court. Ajeya Bharat Party, moved a lunch motion seeking a direction to the EC to reserve symbolof Rail Engine to it as it contested in 1994 and 1999 Parliament elections with the symbol.
Mr M V RajaRam told the court the party secured more than five percent votes in the polls and due for the recognitionfrom the EC.The court permitted for the motion.
As soon as this news spread in the court corridor few moments later the PRP sought the permission of thecourt for the withdrawal of its petition
Hyderabad, March 17 :Praja Rajyam on Tuesday strategically retreated from the legal fight to get a common symbol for itscandidates from the Election Commission of India. The PRP sought the EC to allot the Rail Engine symbolto it.
According to legal experts close to the PRP now it will be in the election fray with `Umbrella' symbol. Ithad came to an understanding with Mr Pavan Kumar Chamling, Chief Minister of Sikkim and also the chiefof the Sikkim Democratic Front.Sikkim Democratic Front is a recognised political party and fought in 1994, 1999 and 2004 election withthe umbrella symbol.
Mr P Shiva Shankar, former union law minister, who is now member of political affairs committee of thePRP was the keyman to have a deal with Mr Chamling. Mr Shiva Shankar served as the governor of Sikkimin 1994 and is said to have good rapport with Mr Chamling.
Sources in the PR said that one former Election Commissioners has also put in his efforts to have a dealwith SDF to use its symbol in the ensuing election.
The legal fraternity in the High Court was surprised when Mr Vedula Venkata Ramana , counsel for thePRP requested the division bench comprising Justice B Prakash Rao and Justice G Bhavani Prasad in thepost lunch session to permit them to withdraw the petition filed against the EC's rejection order on thesymbol issue.
He told the court that his client instructed him to withdrew the petition.Before, the submission for withdrawal of plea by Mr Venkata Ramana there was another development inthe High Court. Ajeya Bharat Party, moved a lunch motion seeking a direction to the EC to reserve symbolof Rail Engine to it as it contested in 1994 and 1999 Parliament elections with the symbol.
Mr M V RajaRam told the court the party secured more than five percent votes in the polls and due for the recognitionfrom the EC.The court permitted for the motion.
As soon as this news spread in the court corridor few moments later the PRP sought the permission of thecourt for the withdrawal of its petition
Monday, March 16, 2009
AP High Court quashes case against a police officer in Telgi stamps scam
By S A Ishaqui
Hyderabad, March 16 : The AP High Court on Monday quashed criminal proceedings against one of the accused in the infamous Telgi stamps scam.
Justice K C Bhanu allowed a petition filed by T Satyanarayana Reddy, former assistant commissioner of police.
Mr C Malleswar Rao, counsel for the petitioner told the court that his client was charged with the offences under Section 13(2)(1) (d) of Prevention of Corruption Act on the accusation that the his client accepted Rs 50,000 to help the accused in the scam through a inspector who was under him.
He contended that this was not based any evidence or record. The allegation was made relying on the confession of Mohammed Abdul Wahed Quadri, co-accused of Abdul Raheem Telgi, the prime accused in multi-crore fake stamps scam.
He said that this statement was recorded under the provisions of AP Organised Crimes Control Act (APCOCA), and such evidence was inadmissible by the High Court.
While agreeing the argument of the petitioner's counsel , the judge quashed the criminal proceedings pending against the accused before Special Judge of the CBI cases at Nampally.
Justice K C Bhanu allowed a petition filed by T Satyanarayana Reddy, former assistant commissioner of police.
Mr C Malleswar Rao, counsel for the petitioner told the court that his client was charged with the offences under Section 13(2)(1) (d) of Prevention of Corruption Act on the accusation that the his client accepted Rs 50,000 to help the accused in the scam through a inspector who was under him.
He contended that this was not based any evidence or record. The allegation was made relying on the confession of Mohammed Abdul Wahed Quadri, co-accused of Abdul Raheem Telgi, the prime accused in multi-crore fake stamps scam.
He said that this statement was recorded under the provisions of AP Organised Crimes Control Act (APCOCA), and such evidence was inadmissible by the High Court.
While agreeing the argument of the petitioner's counsel , the judge quashed the criminal proceedings pending against the accused before Special Judge of the CBI cases at Nampally.
No free symbol for PR, says EC
By S A Ishaqui
Hyderabad, March 16: The Election‘ Commission of India has informed the Andhra Pradesh High Court that there is no provision in the Election Symbols (reservation and allotment) Order, 1968, to allot a common free symbol to an unrecognised political party even though it is registered.
The EC submitted a counter affidavit pursuant to a notice of the High Court.
The court had issued the notice after taking up a petition filed by the Praja Rajyam challenging the order of the EC which left it without a symbol. The affidavit said a common symbol was allotted to the TRS earlier as it contested in local bodies elections and a by-election to the Assembly. Since the PR has not contested any elections, it is not eligible for a free common symbol.
However, a division bench comprising Justice B. Prakash Rao and Justice G. Bhavani Prasad of the High Court decided to continue hearing the petition. The EC told the court that a political party would be recognised, and a common symbol given only after assessing its poll performance within six years of its registration.
Meanwhile, the PR withdrew its petition from Supreme Court on the same issue as the law does not permit a petitioner to file a petition in the apex court when a similar petition is pending in a High Court.
Hyderabad, March 16: The Election‘ Commission of India has informed the Andhra Pradesh High Court that there is no provision in the Election Symbols (reservation and allotment) Order, 1968, to allot a common free symbol to an unrecognised political party even though it is registered.
The EC submitted a counter affidavit pursuant to a notice of the High Court.
The court had issued the notice after taking up a petition filed by the Praja Rajyam challenging the order of the EC which left it without a symbol. The affidavit said a common symbol was allotted to the TRS earlier as it contested in local bodies elections and a by-election to the Assembly. Since the PR has not contested any elections, it is not eligible for a free common symbol.
However, a division bench comprising Justice B. Prakash Rao and Justice G. Bhavani Prasad of the High Court decided to continue hearing the petition. The EC told the court that a political party would be recognised, and a common symbol given only after assessing its poll performance within six years of its registration.
Meanwhile, the PR withdrew its petition from Supreme Court on the same issue as the law does not permit a petitioner to file a petition in the apex court when a similar petition is pending in a High Court.
Sunday, March 15, 2009
HC holds vote for first time
By S.A. ISHAQUI
Hyderabad, March 14 : For the firsttime in its history, the AP High Court reportedly held a ballot among judges to decide whether or not to scrap the process to select 23 district sessions judges.
Sources in the High Court registry said the ballot was conducted on March 5, when the full court of 30 judges met to decide on the issue.
Sources said 17 judges voted for cancelling the process, and 13 were in its favour.
The full court had earlier met on November 17 and December 15 on the issue but the judges could not come to an agreement.
The process to cancel the recruitment notification has begun. Sources refused to say why the process was being cancelled.
Meanwhile, Mr K.V.N. Bhupal, a practising advocate of the High Court, has filed a writ petition challenging the action of the authorities in taking steps to cancel the notification. He contended that the action of the authorities violates Articles 14, 16 and 21 of the Constitution.
Hyderabad, March 14 : For the firsttime in its history, the AP High Court reportedly held a ballot among judges to decide whether or not to scrap the process to select 23 district sessions judges.
Sources in the High Court registry said the ballot was conducted on March 5, when the full court of 30 judges met to decide on the issue.
Sources said 17 judges voted for cancelling the process, and 13 were in its favour.
The full court had earlier met on November 17 and December 15 on the issue but the judges could not come to an agreement.
The process to cancel the recruitment notification has begun. Sources refused to say why the process was being cancelled.
Meanwhile, Mr K.V.N. Bhupal, a practising advocate of the High Court, has filed a writ petition challenging the action of the authorities in taking steps to cancel the notification. He contended that the action of the authorities violates Articles 14, 16 and 21 of the Constitution.
Tribunal: Pay DA to lecturers
By S A Ishaqui
Hyderabad,March 14: The AP Adminstrative Tribunal has held that part-time lecturers who are drawing minimum pay scale of 1993, are entitled for minimum pay scale plus dearness allowance under the revised pay scales of 1999.
Dealing with a batch of applications filed by part-time lecturer, Mr Y.V. Ramakrishna, the vice-chairman of the tribunal held that the petitioners are entitled for payment of salaries for Sunday and public holidays, but not during summer holidays.
He said that the petitioners were not entitled for salary during summer vacation and recovery of salary from them for the same was valid.
Mr K.L. Narasimham, counsel for the petitioners argued that non-payment of revised payscales and deduction of payment from the pay of the petitioners for Sundays and other pubic holidays are illegal and contrary to the law.
Hyderabad,March 14: The AP Adminstrative Tribunal has held that part-time lecturers who are drawing minimum pay scale of 1993, are entitled for minimum pay scale plus dearness allowance under the revised pay scales of 1999.
Dealing with a batch of applications filed by part-time lecturer, Mr Y.V. Ramakrishna, the vice-chairman of the tribunal held that the petitioners are entitled for payment of salaries for Sunday and public holidays, but not during summer holidays.
He said that the petitioners were not entitled for salary during summer vacation and recovery of salary from them for the same was valid.
Mr K.L. Narasimham, counsel for the petitioners argued that non-payment of revised payscales and deduction of payment from the pay of the petitioners for Sundays and other pubic holidays are illegal and contrary to the law.
Saturday, March 14, 2009
Satyam'Rajas' in or out of jail
By S A Ishaqui
Hyderabad, March 13 : Though disgraced former chief of Satyam Computers B Ramalingaraju and associates are in CBI custody, they are nonetheless being treated breakfast, dinner, lunch etc only the rich and the famous could afford.
The hosts being the government appointed chefs in the Dilkusha guest house. Lest the tainted get infected, the chefs have also been taking special care in providing them with mineral water bottles and treating them with steaming chai (tea) at regular intervals. Does it make any difference whether one is in custody or outside?
The CBI on Friday informed the AP High Court through a three-page report that the accused have been served breakfast, lunch and dinner prepared by the cooks appointed by the state government at the guest house to serve the dignitaries and officials and the guests.
The CBI told the court that Raju and his associates were provided mineral water and five times tea in day.
Based on the suggestion of the city police, they have put three lock-up rooms at the City Central Crime Station at Saifabad. Five of the accused were accommodated with two sharing one room each and one in the remaining room.
According to the report every day the accused have been taken to the guest house before 7 am and allowed them to have their bath and brush at the guest house. After the breakfast the officials began questioning in the presence of their counsels.
The CBI submitted the court that each of the accused was provided with more than three bed sheets and blankets.
Mr T Niranjan Reddy counsel for the CBI informed the court that they have been served the dinner at the guest before leaving to their night stay at lock-up , they have provided a mineral water bottle each of them for their consumption at the cell,
Hyderabad, March 13 : Though disgraced former chief of Satyam Computers B Ramalingaraju and associates are in CBI custody, they are nonetheless being treated breakfast, dinner, lunch etc only the rich and the famous could afford.
The hosts being the government appointed chefs in the Dilkusha guest house. Lest the tainted get infected, the chefs have also been taking special care in providing them with mineral water bottles and treating them with steaming chai (tea) at regular intervals. Does it make any difference whether one is in custody or outside?
The CBI on Friday informed the AP High Court through a three-page report that the accused have been served breakfast, lunch and dinner prepared by the cooks appointed by the state government at the guest house to serve the dignitaries and officials and the guests.
The CBI told the court that Raju and his associates were provided mineral water and five times tea in day.
Based on the suggestion of the city police, they have put three lock-up rooms at the City Central Crime Station at Saifabad. Five of the accused were accommodated with two sharing one room each and one in the remaining room.
According to the report every day the accused have been taken to the guest house before 7 am and allowed them to have their bath and brush at the guest house. After the breakfast the officials began questioning in the presence of their counsels.
The CBI submitted the court that each of the accused was provided with more than three bed sheets and blankets.
Mr T Niranjan Reddy counsel for the CBI informed the court that they have been served the dinner at the guest before leaving to their night stay at lock-up , they have provided a mineral water bottle each of them for their consumption at the cell,
Satyam Raju's plea against custody quashes by AP High Court
By S A Ishaqui
Hyderabad, March 13: The Andhra Pradesh High Court on Friday quashed the petitions filed by the former Satyam CEO, Mr B. Ramalinga Raju, and his associates, challenging their CBI custody.
On March 9, the 14th Additional Chief Metropolitan Magistrate Court had remanded Mr Raju and other accused for seven days CBI custody for interrogation in the multi-crore accounting fraud. Mr Raju, his brother and three other accused challenged the order in the High Court.
While dismissing the petitions, Justice K.C. Bhanu agreed that was no provision in the CrPC to grant police custody after the expiry of the first 15 days of remand period. But he added that the facts and circumstances were different in the Satyam case which was being probed by a multi-disciplinary team of the CBI.
The judge pointed out that the first remand period started from March 7, when the case was transferred from the Sixth Additional Chief Metropolitan Magistrate Court to 14th Additional Chief Metropolitan Magistrate Court.
Hyderabad, March 13: The Andhra Pradesh High Court on Friday quashed the petitions filed by the former Satyam CEO, Mr B. Ramalinga Raju, and his associates, challenging their CBI custody.
On March 9, the 14th Additional Chief Metropolitan Magistrate Court had remanded Mr Raju and other accused for seven days CBI custody for interrogation in the multi-crore accounting fraud. Mr Raju, his brother and three other accused challenged the order in the High Court.
While dismissing the petitions, Justice K.C. Bhanu agreed that was no provision in the CrPC to grant police custody after the expiry of the first 15 days of remand period. But he added that the facts and circumstances were different in the Satyam case which was being probed by a multi-disciplinary team of the CBI.
The judge pointed out that the first remand period started from March 7, when the case was transferred from the Sixth Additional Chief Metropolitan Magistrate Court to 14th Additional Chief Metropolitan Magistrate Court.
AP High Court stays CID probe into Kuppam irrigation project
By S A Ishaqui
Hyderabad,March 13: The Andhra Pradesh High Court on Friday stayed further proceedings of the CID against the alleged irregularities in Kuppam irrigation project.
Mr Ahobala Rao, one of the officers in selecting the BHC Agro (India) Private Limited as consultant for taking up a pilot project for development of Kuppam block, filed a writ petition against the recommendations of Justice T.H.B. Chalapathi Commission and pursuant action of the government on the commission recommendation .
While staying further proceedings, justice G. Rohini directed the government to file the counter-affidavit in the matter.
The state government on February 14 ordered a CBCID probe into the alleged irregularities in choosing BHC Agro (India) Limited as consultants for the Kuppam project.The probe is seen as a face-saving measure since the government is in a tight spot over an order it issued in 2004 complimenting BHC Agro for its work on the project.
This GO (No.277) has become a major weapon in the hands of the company which has filed an arbitration suit against the state government in the High Court for terminating the contract.
Though the Justice T.H.B. Chalapathi Commission, in its inquiry report on the Kuppam issue, had recommended a CID investigation, the government’s decision to order it in the eleventh hour is apparently meant to browbeat BHC Agro which has presented the GO before the HC.
It has questioned how the government could terminate the contract of a company after complimenting it for its performance. The GO was issued on November 11, 2004, and the decision to annul the contract was taken in September 2005.
Hyderabad,March 13: The Andhra Pradesh High Court on Friday stayed further proceedings of the CID against the alleged irregularities in Kuppam irrigation project.
Mr Ahobala Rao, one of the officers in selecting the BHC Agro (India) Private Limited as consultant for taking up a pilot project for development of Kuppam block, filed a writ petition against the recommendations of Justice T.H.B. Chalapathi Commission and pursuant action of the government on the commission recommendation .
While staying further proceedings, justice G. Rohini directed the government to file the counter-affidavit in the matter.
The state government on February 14 ordered a CBCID probe into the alleged irregularities in choosing BHC Agro (India) Limited as consultants for the Kuppam project.The probe is seen as a face-saving measure since the government is in a tight spot over an order it issued in 2004 complimenting BHC Agro for its work on the project.
This GO (No.277) has become a major weapon in the hands of the company which has filed an arbitration suit against the state government in the High Court for terminating the contract.
Though the Justice T.H.B. Chalapathi Commission, in its inquiry report on the Kuppam issue, had recommended a CID investigation, the government’s decision to order it in the eleventh hour is apparently meant to browbeat BHC Agro which has presented the GO before the HC.
It has questioned how the government could terminate the contract of a company after complimenting it for its performance. The GO was issued on November 11, 2004, and the decision to annul the contract was taken in September 2005.
Eenadu v/s Sakshi : Eenadu files writ on Sakshi
By S A Ishaqui
Hyderabad, March 14: Justice L. Narasimha Reddy of the AP High Court on Friday admitted a writ filed by Ushodya Enterprises against the action of the state government in issuing large-scale advertisements to Saakshi.
Senior counsel Anil B. Divan, who appeared on behalf of the petitioners, explained to the court how Saakshi was showed undue favours.
He said that without certification by the competent agency regarding the authentic circulation figures, the government had paid crores of rupees to Saakshi.
The advocate-general, Mr C.V. Mohan Reddy, asked the court to take judicial notice of the media war and termed the case as filed by a business rival. Issuing notices, the court adjourned the case to April 15.
Hyderabad, March 14: Justice L. Narasimha Reddy of the AP High Court on Friday admitted a writ filed by Ushodya Enterprises against the action of the state government in issuing large-scale advertisements to Saakshi.
Senior counsel Anil B. Divan, who appeared on behalf of the petitioners, explained to the court how Saakshi was showed undue favours.
He said that without certification by the competent agency regarding the authentic circulation figures, the government had paid crores of rupees to Saakshi.
The advocate-general, Mr C.V. Mohan Reddy, asked the court to take judicial notice of the media war and termed the case as filed by a business rival. Issuing notices, the court adjourned the case to April 15.
Friday, March 13, 2009
HC to decide on "Satyam" Raju custody
By S A Ishaqui
Hyderabad, March 12 : The AndhraPradesh High Court will decide on Friday whether an investigating agency can be allowed to seek police custody of an accused who has already been put in police custody by another agency earlier for the same offence.
This question was raised by counsel for the exSatyam boss, Mr B. Ramalinga Raju and his associates on Thursday before Justice K.C. Bhanu.
The CBI, which is probing the Satyam scam, also urged the court to clarify the issue for the sake of cases where investigation has been changed from one agency to another. As it is, there is no provision in the Criminal Procedure Code for sending an accused to police custody when the investigation has been entrusted to some other agency.
The Supreme Court said in the V. Anupam J. Kulkarni vs CBI case that after the expiry of first 15 days, further remand during the period of investigation can only be in judicial custody.
There cannot be any detention in police custody after the expiry of first 15 days even in a case where more offences committed by the accused in the same transaction had come to light.
However, the Supreme Court said that this bar did not apply if the same person was made accused in a different case.
In the Satyam scam, the state government gave consent to the CBI to investigate the case registered by the Crime Investigation Department (Cr. No.
2/2009) against Mr Raju and his associates.
The CID earlier obtained police remand for Mr Raju and other four accused in different occasions and had interrogated them. However, the CBI re-registered the case and filed an application before the Sixth Additional Chief Metropolitan Magistrate Court seeking the custody of Mr Raju and his associates.
Following this, the lower court allowed the petition and remanded Mr Raju and others to seven days police custody from March 10 to enable the CBI to interrogate them.
The lower court’s order was challenged in the HC on Thursday. The senior lawyer, Mr C. Padmanabha Reddy, who appeared for Mr Raju, argued that the magistrate had no jurisdiction to grant police custody after expiry of first 15 days as per the provisions of the Section 167 CRPC.
“Tomorrow the government may hand over the investigation to local police and they may ask for custody too,” he said.
Hyderabad, March 12 : The AndhraPradesh High Court will decide on Friday whether an investigating agency can be allowed to seek police custody of an accused who has already been put in police custody by another agency earlier for the same offence.
This question was raised by counsel for the exSatyam boss, Mr B. Ramalinga Raju and his associates on Thursday before Justice K.C. Bhanu.
The CBI, which is probing the Satyam scam, also urged the court to clarify the issue for the sake of cases where investigation has been changed from one agency to another. As it is, there is no provision in the Criminal Procedure Code for sending an accused to police custody when the investigation has been entrusted to some other agency.
The Supreme Court said in the V. Anupam J. Kulkarni vs CBI case that after the expiry of first 15 days, further remand during the period of investigation can only be in judicial custody.
There cannot be any detention in police custody after the expiry of first 15 days even in a case where more offences committed by the accused in the same transaction had come to light.
However, the Supreme Court said that this bar did not apply if the same person was made accused in a different case.
In the Satyam scam, the state government gave consent to the CBI to investigate the case registered by the Crime Investigation Department (Cr. No.
2/2009) against Mr Raju and his associates.
The CID earlier obtained police remand for Mr Raju and other four accused in different occasions and had interrogated them. However, the CBI re-registered the case and filed an application before the Sixth Additional Chief Metropolitan Magistrate Court seeking the custody of Mr Raju and his associates.
Following this, the lower court allowed the petition and remanded Mr Raju and others to seven days police custody from March 10 to enable the CBI to interrogate them.
The lower court’s order was challenged in the HC on Thursday. The senior lawyer, Mr C. Padmanabha Reddy, who appeared for Mr Raju, argued that the magistrate had no jurisdiction to grant police custody after expiry of first 15 days as per the provisions of the Section 167 CRPC.
“Tomorrow the government may hand over the investigation to local police and they may ask for custody too,” he said.
Facilities for Raju
By S A Ishaqui
Hyderabad, March 12 :
Justice K.C. Bhanu of the AP High Court on Thursday asked counsel for the CBI to get instructions from its authorities whether there was any provision to extend the facilities to the ex-boss of Satyam Computers B. Ramalinga Raju compared to those of others in the lock-up at the City Central Crime Station.
The judge was dealing with a petition filed by Mr Raju against the orders of the lower court remanding him to CBI custody.
Senior counsel of Mr Raju, Mr C. Padmanabha Reddy, complained to the court that the CBI authorities put their clients in a lock-up where there was no toilet and rats and bandicoots freely roamed about.
However, in another case, CBI counsel submitted a road map on the investigation of the Satyam fraud to Justice N.V. Ramana.
Counsel told the court that it was highly confidential and asked to have a glance.
After persuing it the judge returned to the counsel. The judge was dealing with a petition filed by Investors Hub of Thrissur, Kerala, seeking a direction that to monitor the probe by the court. Elsewhere, the CBI sources said they requested the city police to provide lock-up facility to keep the accused after interrogation.
“It is the city police who suggested keeping them in the CCS lock-up,” CBI sources said. However sources said the CBI will take a decision after the high court’s decision on Friday.
Hyderabad, March 12 :
Justice K.C. Bhanu of the AP High Court on Thursday asked counsel for the CBI to get instructions from its authorities whether there was any provision to extend the facilities to the ex-boss of Satyam Computers B. Ramalinga Raju compared to those of others in the lock-up at the City Central Crime Station.
The judge was dealing with a petition filed by Mr Raju against the orders of the lower court remanding him to CBI custody.
Senior counsel of Mr Raju, Mr C. Padmanabha Reddy, complained to the court that the CBI authorities put their clients in a lock-up where there was no toilet and rats and bandicoots freely roamed about.
However, in another case, CBI counsel submitted a road map on the investigation of the Satyam fraud to Justice N.V. Ramana.
Counsel told the court that it was highly confidential and asked to have a glance.
After persuing it the judge returned to the counsel. The judge was dealing with a petition filed by Investors Hub of Thrissur, Kerala, seeking a direction that to monitor the probe by the court. Elsewhere, the CBI sources said they requested the city police to provide lock-up facility to keep the accused after interrogation.
“It is the city police who suggested keeping them in the CCS lock-up,” CBI sources said. However sources said the CBI will take a decision after the high court’s decision on Friday.
HC pulls up mines officials
By S A Ishaqui
Hyderabad, March 12 : The AndhraPradesh High Court on Thursday pulled up officials of the mines and geology department who were present in the court for nonimplementation of it order.
Dealing with a contempt petition filed by Ms K.Rajeswari, of Kadapa district, Justice Goda Raghuram directed the department to file an affidavit within 10 days along with a chronology of events explaining why they did not follow an order of the court in respect of a lease application for an iron ore mine in Kadapa district.
The court had earlier ordered the state’s mines secretary and the director of mines and his assistant director to be present in the court to explain their failure to implement the order.
The counsel for the mines department, Mr Ch. Surya Satish, tried to convince the court as to why they did not act upon the order of the court for a period of three years.
Replying to the counsel plea , the judge said that a citizen can use the services of a high court judge by filing a petition in the court with Rs 100 court fee and where as it takes lakhs of rupees for the same citizen to get the mining authorities look at his petition.
Hyderabad, March 12 : The AndhraPradesh High Court on Thursday pulled up officials of the mines and geology department who were present in the court for nonimplementation of it order.
Dealing with a contempt petition filed by Ms K.Rajeswari, of Kadapa district, Justice Goda Raghuram directed the department to file an affidavit within 10 days along with a chronology of events explaining why they did not follow an order of the court in respect of a lease application for an iron ore mine in Kadapa district.
The court had earlier ordered the state’s mines secretary and the director of mines and his assistant director to be present in the court to explain their failure to implement the order.
The counsel for the mines department, Mr Ch. Surya Satish, tried to convince the court as to why they did not act upon the order of the court for a period of three years.
Replying to the counsel plea , the judge said that a citizen can use the services of a high court judge by filing a petition in the court with Rs 100 court fee and where as it takes lakhs of rupees for the same citizen to get the mining authorities look at his petition.
Wednesday, March 11, 2009
Setback for Satyam 'Raju' group
By S A Ishaqui
Hyderabad, March 10 :The AP High Court registry on Tuesday refused to grant permission to M Ramalinga Raju and his associates to move a house motion to avoid interrogation by the Central Bureau of Investigation.
The Additional Chief Metropolitan Magistrate, Hyderabad, on Monday had remanded B.Ramalinga Raju, B Rama Raju, Vadlamani Srinivas, and Price Water House auditors Gopalakrishnan and Talluri Srinivas, to CBI custody for seven days from March 10.
Counsel for the accused approached the High Court seeking permission to move ahouse motion against the orders of the lower court. House motions are entertained by the registry in cases of urgent matters when the High Court was not in session.
The High Court is on holiday for Milad-un Nabi and Holi , it will resume work from Thursday.
The registry refused the plea of the counsels of Raju and his associates and advised them to bring up their petition in the normal court schedule on Thursday.
State justifies stand on Maytas deals
By S A Ishaqui
Hyderabad,March 10: The state government has defended its decision to entrust work on a Rs 121-crore road to Maytas Infra Ltd on nomination basis in Kadapa district.
The AP High Court on February 13 had stayed the government order which allotted the work to Maytas Infra while dealing with a petition filed by Mr P Narayan Reddy, sarpanch of Obannapet village in the district. The court asked the government to file a counter affidavit.
Mr T. Chatterjee, principal secretary, transport, Roads and buildings, filed the affidavit stating that the allegation of the petitioner that entrusting the work to Maytas without calling tenders was meant to benefit certain individuals and causing loss to the exchequer was false and without basis.
He told the court that a pending criminal case against the Maytas founder chairman, Mr B. Ramalinga Raju, was not relevant in the present case. He did not agree with the contention of the petitioner that Maytas would be unable to complete the work.
Mr Chatterjee stated that the government had obtained sufficient securities for recovery of the money, and the question of non- completion of work does not arise.
Mr Chatterjee said the project to build a 25-km road from Mangapatnam to K. Sugumanchipalli village was part of the first package of Galeru Nagari Sujala Sravanthi irrigation project. Maytas had bagged the contract to construct the Gandikota dam in the first package. The road work was supplementary to the main agreement.Due to the construction of Gandikota dam, the existing road would be submerged and there was an urgent need to build another road, Mr Chatterjee said.
Mr Chatterjee submitted that it was an emergent work and in the public interest and the petitioner has no right to say that it was not in the public interest. He urged the court to vacate the stay orders.
Hyderabad,March 10: The state government has defended its decision to entrust work on a Rs 121-crore road to Maytas Infra Ltd on nomination basis in Kadapa district.
The AP High Court on February 13 had stayed the government order which allotted the work to Maytas Infra while dealing with a petition filed by Mr P Narayan Reddy, sarpanch of Obannapet village in the district. The court asked the government to file a counter affidavit.
Mr T. Chatterjee, principal secretary, transport, Roads and buildings, filed the affidavit stating that the allegation of the petitioner that entrusting the work to Maytas without calling tenders was meant to benefit certain individuals and causing loss to the exchequer was false and without basis.
He told the court that a pending criminal case against the Maytas founder chairman, Mr B. Ramalinga Raju, was not relevant in the present case. He did not agree with the contention of the petitioner that Maytas would be unable to complete the work.
Mr Chatterjee stated that the government had obtained sufficient securities for recovery of the money, and the question of non- completion of work does not arise.
Mr Chatterjee said the project to build a 25-km road from Mangapatnam to K. Sugumanchipalli village was part of the first package of Galeru Nagari Sujala Sravanthi irrigation project. Maytas had bagged the contract to construct the Gandikota dam in the first package. The road work was supplementary to the main agreement.Due to the construction of Gandikota dam, the existing road would be submerged and there was an urgent need to build another road, Mr Chatterjee said.
Mr Chatterjee submitted that it was an emergent work and in the public interest and the petitioner has no right to say that it was not in the public interest. He urged the court to vacate the stay orders.
Monday, March 9, 2009
Narayana told to pay for death
By S A Ishaqui
Hyderabad, March 7: The Hyderabad District Consumer Dispute Redressal Forum has directed the Narayana Educational Institutions to pay Rs 3.27 lakhs as compensation to the parents of a student Ms T Sravanthi, who died at Narayana Junior College at Tarnaka in the city.
Mr T R Anjaneyulu and Ms T Malathi parents of the girl filed an application in theForum complaining that their daughter died in the class room due to the negligence of the management, which did not provide proper medical care when she fell in the class.
Mr N V Jagannath, counsel for the petitioner, while presenting the case alleged that the callous attitude of the management has led to the untimely death of thegirl. Whereas, the management argued that they have put in all possible efforts to save the girl. As soon as the girl fell in the class room teachers and other staff available in the college made efforts to provide first aid and shifted her to hospital.
The Forum comprising Mr L Kedarachary, president, Ms C Nirmala and Mr DMahesh Kumar members, after examining the witnesses and material available onrecord unanimously held that the inaction of the principal while handling the situation amounts to deficiency of service.
It said that the complainants successfully established their case and they are entitled for reasonable compensation.
According to medical opinion, Sravanthi, who was a second year intermediate student died due to 'acute Coronary Insufficiency' in the class room on December 18, 2007.
The Forum directed that the Narayana Management, Junior College Principal and Zonal incharge should jointly pay the compensation and Rs 2000 as costs to the parents within a month.
Hyderabad, March 7: The Hyderabad District Consumer Dispute Redressal Forum has directed the Narayana Educational Institutions to pay Rs 3.27 lakhs as compensation to the parents of a student Ms T Sravanthi, who died at Narayana Junior College at Tarnaka in the city.
Mr T R Anjaneyulu and Ms T Malathi parents of the girl filed an application in theForum complaining that their daughter died in the class room due to the negligence of the management, which did not provide proper medical care when she fell in the class.
Mr N V Jagannath, counsel for the petitioner, while presenting the case alleged that the callous attitude of the management has led to the untimely death of thegirl. Whereas, the management argued that they have put in all possible efforts to save the girl. As soon as the girl fell in the class room teachers and other staff available in the college made efforts to provide first aid and shifted her to hospital.
The Forum comprising Mr L Kedarachary, president, Ms C Nirmala and Mr DMahesh Kumar members, after examining the witnesses and material available onrecord unanimously held that the inaction of the principal while handling the situation amounts to deficiency of service.
It said that the complainants successfully established their case and they are entitled for reasonable compensation.
According to medical opinion, Sravanthi, who was a second year intermediate student died due to 'acute Coronary Insufficiency' in the class room on December 18, 2007.
The Forum directed that the Narayana Management, Junior College Principal and Zonal incharge should jointly pay the compensation and Rs 2000 as costs to the parents within a month.
Plea not to register small agricultural land holdings
By S A Ishaqui
Hyderabad, March 7: A public interest litigation was filed in the AP High Court seeking a direction not to register the agricultural lands which are in smaller extents.
Mr Vinukonda Srinivasa Rao, a resident of Piduguralla in Guntur filed the petition. He submitted that allowing the sale transactions of agricultural lands in smaller extents like one cent and two cents, without converting into non- agricultural use has caused a great loss to exchequer.
He said that the AP Land (Conversion of Agriculture Land) Act 2006 mandates that any piece of agricultural land should not be used for non -agricultural purpose without the permission of the competent authorities.He told the court that there was a vast variation of stamp duty when compared to the duty on agicultural land.
He alleged that to avoid stamp duty as per the basic value of the non-agricultural lands , several individuals and real estate developers are indulging in such registrations.The High Court will hear the petition next week.
Hyderabad, March 7: A public interest litigation was filed in the AP High Court seeking a direction not to register the agricultural lands which are in smaller extents.
Mr Vinukonda Srinivasa Rao, a resident of Piduguralla in Guntur filed the petition. He submitted that allowing the sale transactions of agricultural lands in smaller extents like one cent and two cents, without converting into non- agricultural use has caused a great loss to exchequer.
He said that the AP Land (Conversion of Agriculture Land) Act 2006 mandates that any piece of agricultural land should not be used for non -agricultural purpose without the permission of the competent authorities.He told the court that there was a vast variation of stamp duty when compared to the duty on agicultural land.
He alleged that to avoid stamp duty as per the basic value of the non-agricultural lands , several individuals and real estate developers are indulging in such registrations.The High Court will hear the petition next week.
Saturday, March 7, 2009
Soumya case stayed
By S A Ishaqui
Hyderabad, March 6 :The AP High Court on Friday granted stay on all further proceedings in a case registered against Visakhapatnam Range Deputy Inspector General of Police, MsSowmya Mishra and III town police inspector, Mr B V G Prasad till further orders.
The Assistant Commissioner of Police, Mr Konda Reddy registered a case against the duo following a direction of the Additional Chief Metropolitan MagistrateCourt on Thursday under the SC/ST Atrocities (Prevention) Act based on the complaint of Mr Ch Srikanth , Superintendent of Police , Srikakulam .
Mr Srikanth approached the lower court after the III Town Police Station did not register the case despite his complaint filed on March 2, against Ms Sowmya Mishra. The lower court while directing the ACP to register the case against the DIG also directed him to register the case against the inspector under the relevant Section for the delay caused in registering the case.
Mr Srikanth alleged that despite his complaint that Ms Sowmya Mishra had humiliated him when he went to greet her, no action had been taken.
Both the accused on Friday moved a motion during lunch session of the High Court seeking a direction to quash the criminal proceedings against them. He contended that since he was an SC, he was snubbed by his superior.
The petitioner's counsel argued that the ingredients of Section 3 (1) (x) was not at all attracted even after taking into account entire allegations of the complainant.
According to the relevant Section " Whoever, not being a member of a ScheduledCaste of Scheduled Tribe - Intentionally insults or intimidates with intent to humiliate a member of SC or ST community in any place within public view".
The counsel told the court even according to the complainant there was none in the chambers of the DIG when the alleged incident took place. He said that it was amply clear that there was no prima case or allegation in regard to the attracting the provisions of the Act.
Justice K C Bhanu while agreeing the contentions of the petitioner's counsel directed the Visakhapatnam police not to proceed further in the case.
Friday, March 6, 2009
No stay on ACB order
By S A Ishaqui
Hyderabad, March 5 :A division bench comprising Chief Justice Anil R Dave and Justice RameshRanagnathan of the AP High Court on Thursday refused to grant stay on a memo issued by the Chief Secretary restricting the Anti Corruption Bureau from arresting government servants involved disproportionate assets cases and indirect trap cases. Professor M S Rama Krishna of the Hyderabad city filed a writ petition challenging the memo.
Mr Gandra Mohan Rao, counsel for the petitioner argued that after the instructions of the Chief Secretary the ACB officials arresting government servants taking petty amounts as bribes while leaving the big fish who has amassed huge wealth scot-free.
He apprehended that these type discriminative attitude of the government will lead to a disastrous consequences in the society.He urged the court to suspend the order and direct the ACB to follow the law.
However, the government submitted to the court through its counter affidavit that the memo was issued on the representation of the Revenue Earning Departmental Association Confederation.
It told the court that after the representation a committee with a group of ministers was appointed and the committee examined the issue and recommended the government that not to arrest the employees and officials involved in disproportionate assets cases and indirect trap cases.
The bench while permitting the Revenue Earning Departmental Association Confederation to implead as a party in the petition , said that it would take a decision after hearing the government's counsel in the matter.
HC takes action on minister and MLAs
By S A Ishaqui
Hyderabad, March 5 :The Andhra Pradesh High Court, on Thursday, took suo motu cognisance ofthe role of a minister and two MLAs in the transfer of a deputy collector of Machilipatnam in Krishna district.
Dealing with a petition filed Ms K Hymavathi, deputy collector, challenging the transfer orders, a division bench comprising Justice Ghulam Mohammed and Justice P V Sanjay Kumar ordered to implead Mr M Buddha Prasad,minister for Animal Husbandry, Mr Perni Venkatramaiah, MLA of Machilipatnam and B Vedavyas,MLA , who resigned from the Congress and joined Praja Rajam , as respondents in the petition. The court temporarilysuspended the transfer orders.
Mr P V Krishnaiah, counsel for the petitioner alleged that a syndicate of the illegal sand transporters were behind her displacement and they had influenced the Minister and the two MLAs for her transfer. He informed thecourt that three public representatives had made representation to the government for her transfer. They suggested the name of the another officer to replace her.
He told the court that his client was posted as deputy collector at Machilipatnam on July 25, 2008 , in less than three months she was transferred from the post in October 2008. But the Election Commission didnot agree as the election code was in force as election of Members ofLegislative Council were on at that period. The government transferred her from the post on February 11, 2009.
The bench observed that it was not fair on the part of elected representatives to recommend for postings of a particular officer and also not correct to pressurise the government for transfer of an official when there was no corruption and other serious charges on the official.
The government along with the legislators were given time up to eight weeksby the high court to file their replies
Praja Rajyam's fight for 'free symbol'
By S A Ishaqui
Hyderabad, March 5 :A division bench comprising Justice B Prakash Rao and Justice G BhavaniPrasad of the AP High Court, on Thursday, issued notice to the Election Commission of India, directing it to file its reply before March 16 on apetition filed by Praja Rajyam Party.
Mr Allu Arvind, general secretary of the party, filed the plea challenging the order of the EC rejecting the plea of the party for a common free symbol.
Dealing with the petition the bench enquired with the counsel for the ECabout the procedure the agency would generally follow while allotting symbols to various registered, recognised and unrecognised parties.
Mr Vedula Venkat Ramana , counsel for the PRP , found fault with the decision of the EC . He said the EC 's objective of conducting free and fairpoll was at variance with certain rules of the symbol order envisaged by the Commission.
He said that the symbol allotment order is making a distinction between recognised and unrecognised parties though the EC Act makes no such distinction.He submitted that on one hand, these rules make it mandatory for any new political party to have a fixed percentage of votes polled in its favour and ,ironically, the same rules prevent the new party from getting its votes registered under a common symbol on the other.
Mr Ramana, contended that there was no prohibition on allotment of a common free symbol to a registered political party. He alleged that the authorities are quoting the symbol order and depriving the new parties from having a common free symbol."It defeats the very purpose of free and fair conduct of polls. Those rules which run counter to the objectives of EC Act should be set aside," he urged
Mr D Prakash Reddy, counsel for the EC told the court that before allotting a common free symbol to a registered party the EC has to look into several aspects and urged the court that he will discus the modalities and rules in his counter affidavit.
Hyderabad, March 5 :A division bench comprising Justice B Prakash Rao and Justice G BhavaniPrasad of the AP High Court, on Thursday, issued notice to the Election Commission of India, directing it to file its reply before March 16 on apetition filed by Praja Rajyam Party.
Mr Allu Arvind, general secretary of the party, filed the plea challenging the order of the EC rejecting the plea of the party for a common free symbol.
Dealing with the petition the bench enquired with the counsel for the ECabout the procedure the agency would generally follow while allotting symbols to various registered, recognised and unrecognised parties.
Mr Vedula Venkat Ramana , counsel for the PRP , found fault with the decision of the EC . He said the EC 's objective of conducting free and fairpoll was at variance with certain rules of the symbol order envisaged by the Commission.
He said that the symbol allotment order is making a distinction between recognised and unrecognised parties though the EC Act makes no such distinction.He submitted that on one hand, these rules make it mandatory for any new political party to have a fixed percentage of votes polled in its favour and ,ironically, the same rules prevent the new party from getting its votes registered under a common symbol on the other.
Mr Ramana, contended that there was no prohibition on allotment of a common free symbol to a registered political party. He alleged that the authorities are quoting the symbol order and depriving the new parties from having a common free symbol."It defeats the very purpose of free and fair conduct of polls. Those rules which run counter to the objectives of EC Act should be set aside," he urged
Mr D Prakash Reddy, counsel for the EC told the court that before allotting a common free symbol to a registered party the EC has to look into several aspects and urged the court that he will discus the modalities and rules in his counter affidavit.
Thursday, March 5, 2009
SC stays Andhra HC ruling on encounter deaths
S A Ishaqui
Hyderabad, March 4: Andhra Pradesh Civil Liberties Committee has been preparing to continue its legal battle in the Supreme Court to prevail the verdict of the AP High Court on encounter killings. Former Chief Justice of Delhi High Court, Justice Rajinder Sachar would likely to appear on behalf APCLC in the apex court.
On February 6, a five member bench of the High Court held that registration of First Investigation Report is must against the police officers for the death caused to any person during the discharge of official duties including encounters.
The apex court on Wednesday granted an interim stay on the judgment of the five member bench of the High Court. It was a major relief for the Andhra Pradesh police.
The state government, to avoid any sort of negative impact or criticism, it strategically fielded the AP Police Officers Association to move a special leave petition in the Supreme Court.
Legal fraternity of the High Court expected that the government will prefer an appeal against the five member bench verdict in the apex court. Surprisingly the Police Officer’s Association comes into the fray.
Soon after the High Court verdict, legal experts associated with the APCLC decided to file a caveat application in the apex court. But, it did not do so, as there was a difference of opinion among the senior advocates who perused the case in the High Court.
However, a bench headed by Chief Justice K G Balakrishnan stayed the decision of the High Court when the petition in this regard was mentioned by senior advocate Mr Harish Salve.
Mr Salve, appeared on behalf of the AP Police Officers Association and argued if such directions are passed then all police officers involved in thwarting attack on the Parliament and the National Security Guard commandos who killed the terrorists involved in Mumbai terror attacks would have to face criminal cases.
"If this law is to be considered, then all police officers would be made accused," he said before the bench, also comprising of Justices P Sathasivam and J M Panchal.
Referring to the directions of the High Court, Mr Salve said "This would mean that no action could be taken against the terrorists and subversive elements."
Hyderabad, March 4: Andhra Pradesh Civil Liberties Committee has been preparing to continue its legal battle in the Supreme Court to prevail the verdict of the AP High Court on encounter killings. Former Chief Justice of Delhi High Court, Justice Rajinder Sachar would likely to appear on behalf APCLC in the apex court.
On February 6, a five member bench of the High Court held that registration of First Investigation Report is must against the police officers for the death caused to any person during the discharge of official duties including encounters.
The apex court on Wednesday granted an interim stay on the judgment of the five member bench of the High Court. It was a major relief for the Andhra Pradesh police.
The state government, to avoid any sort of negative impact or criticism, it strategically fielded the AP Police Officers Association to move a special leave petition in the Supreme Court.
Legal fraternity of the High Court expected that the government will prefer an appeal against the five member bench verdict in the apex court. Surprisingly the Police Officer’s Association comes into the fray.
Soon after the High Court verdict, legal experts associated with the APCLC decided to file a caveat application in the apex court. But, it did not do so, as there was a difference of opinion among the senior advocates who perused the case in the High Court.
However, a bench headed by Chief Justice K G Balakrishnan stayed the decision of the High Court when the petition in this regard was mentioned by senior advocate Mr Harish Salve.
Mr Salve, appeared on behalf of the AP Police Officers Association and argued if such directions are passed then all police officers involved in thwarting attack on the Parliament and the National Security Guard commandos who killed the terrorists involved in Mumbai terror attacks would have to face criminal cases.
"If this law is to be considered, then all police officers would be made accused," he said before the bench, also comprising of Justices P Sathasivam and J M Panchal.
Referring to the directions of the High Court, Mr Salve said "This would mean that no action could be taken against the terrorists and subversive elements."
Wednesday, March 4, 2009
Full Text of Encounters Judgement
Who ever use this text please accoknowledge
* THE HONOURABLE SRI JUSTICE GODA RAGHURAM,
THE HONOURABLE SRI JUSTICE V.V.S. RAO,
THE HONOURABLE SRI JUSTICE R. SUBHASH REDDY,
THE HONOURABLE SRI JUSTICE RAMESH RANGHANATHAN
AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD
+ WRIT PETITION Nos: 15419 of 2006; 26358 of 1999; 7906 of 2000; 14475 of 2002; 440 of 2003 and 857 of 2008
% FRIDAY, THE SIXTH DAY OF FEBRUARYTWO THOUSAND AND NINE
# A.P. Civil Liberties Committee (APCLC), Rep by its President, Mr. S.Subhash Chandra Bose, S/o S.Venkata Krishnaiah, R/o P.B.Street, Governorpet, Vijayawada, Krishna District & Others
... PETITIONERS
VERSUS
$ The Government of A.P., rep by its Principal Secretary, Home Department, Secretariat, Hyderabad, and Others.
... RESPONDENTS
! Counsel for the Petitioners: MR. BOJJA TARAKAM and Others
^ Counsel for the Respondents: THE ADVOCATE GENERAL and Others Sri C. PADMANABHA REDDY, AMICUS CURIAE
COMMON ORDER: (Per Hon’ble Sri Justice Goda Raghuram)
Competing interpretations of recurrent, contemporaneous events :
Since the inception of the naxalite movement in Andhra Pradesh in 1969, 551 police personnel were killed including one DIG, two S.Ps, five D.S.Ps; 16 Inspectors and 49 Sub-Inspectors. 2928 civilians were killed; public and private property worth hundred of crores of rupees was destroyed; the extremist groups indulged in mindless violence and committed brutal murders. The naxal violence increased since 1991. They deliberately ambush and attack police with sophisticated firearms and explosives. In order to create terror the Maoists are also targeting functionaries of ruling political parties and killing them brutally – (counter affidavit of the Director General of Police in W.P.No. 15419/06 including Annexures 2 and 7)
… the State Executive for the first time started extra-legal killing which is popularly known as Encounter since 1968 and as on today in the name of alleged encounter the State has snatched away lives of about 4000 people during the last four decades – (written submissions dated 4.3.2008 of Mr. V.Raghunath, Advocate for APCLC, in W.P.Nos. 7906/2000, 14475/02 and 440/03)
The lesson for the MHA (Ministry of Home Affairs) is thus clear: it should advise state governments that brutal repression is no answer to the Naxalite movement; that the Naxalite ideology must be fought politically; that Naxalite criminal actions must be dealt with under the existing criminal and human rights laws; and that Naxalite social base, which springs from exploitation, inequality and injustice must be countered by purposeful political and administrative action to implement the promises made in the Preamble and the Directive Principles of State Policy of the Constitution. Police repression is attractive and easy to adopt by a government armed to the teeth with paramilitary forces, equipment, firepower and mobility! However, police repression only goes to strengthen the Maoist thesis on the class character of the Indian State. It is counter-productive and helps to increase the mass base of the Naxalites, which arises out of the failure of the State to deliver the developmental goods as mandated by the Constitution –– Political Violence and the Police in India ([1][1]).
Steven Pinker observes: The most important and underappreciated trend in the history of our species: is the decline of violence. Cruelty as popular entertainment, human sacrifice to indulge superstition, slavery as a labor-saving device, genocide for convenience, torture and mutilation as routine forms of punishment, execution for trivial crimes and misdemeanors, assassination as a means of political succession, pogroms as an outlet for frustration, and homicide as the major means of conflict resolution – all were unexceptional features of life for most of human history. Yet today they are statistically rare in the West, less common elsewhere than they used to be, and widely condemned when they do occur.([2][2])
According to the eminent historian Eric Hobsbawm: The twentieth century was the most murderous in recorded history. The total number of deaths caused by or associated with its wars is estimated at 187 million, the equivalent of more than 10 percent of the world’s population in 1913. ---- At the start of the twenty-first century we find ourselves in a world where armed operations are no longer essentially in the hands of governments or their authorized agents, and where the contending parties have no common characteristics, status or objectives, except the willingness to use violence.([3][3])
State action against terrorism (including the domestic variety), blurs legal, moral and ethical definitions of appropriate substantive and procedural rules of peacetime law-enforcement engagement under constitutional norms of governance on the one hand; and war on the other. War is also a species of conflict; it is supposed to take place primarily between sovereign states or, if they occurred within the territory of one particular state, between parties sufficiently organized to be accorded belligerent status by other sovereign states. Hobsbawm observes: In recent years, the situation has been further complicated by the tendency in public rhetoric for the term `war` to be used to refer to the deployment of organized force against various national or international activities regarded as anti-social - `the war against the Mafia`, for example, or the `war against the drug cartels`. Not only is the fight to control, or even to eliminate, such organisations or networks, including small-scale terrorist groups, quite different from the major operations of war; it also confuses the actions of two types of armed force. One – let us call them `soldiers` - is directed against other armed forces with the object of defeating them. The action of the other – let us call them `police` - sets out to maintain or re-establish the required degree of law and public order within an existing political entity, typically a state. Victory, which has no necessary moral connotation, is the object of one force; bringing to justice the offenders against the law, which does have a moral connotation, is the object of the other – (Hobsbawm – 3supra note 2, at pages 21, 22 – emphasis is supplied). The distinction, between war and peacetime law enforcement within the framework of a legal regime under a constitutional order is critical and an issue of profound significance for civil society.
Democratic regimes world over are experiencing a fundamental shift in the approach to controlling harmful conduct. The shift is from the traditional reliance on deterrent and reactive strategies and towards increasingly preventive and proactive strategies. The shift has clear and momentous implications in areas of human rights, criminal justice administration, and security – national and international, foreign policy and critically for civil liberties jurisprudence.
The conceptual shift in emphasis from a theory of deterrence to a theory of prevention influences and substrates actions that Governments take to control dangerous human behavior. These range from preventive warfare; proactive crime prevention techniques including phone tapping, stings, informers and moles; surgical, psychiatric or chemical methods for preventing sexual predation; racial, religious, ethnic or other forms of profiling; prior restraint on dangerous or offensive speech; use of torture or other extraordinary measures towards gathering intelligence considered essential to prevent imminent acts of terrorism; as also targeted killings of terrorists ([4][4]).
Executive and even judicial sanctions against life and liberty, it is axiomatic, must be explicitly spelt out in legislative authority. This is the essence of civilized and constitutional governance. In the context of our constitutional scheme and qua Article 21, the State shall not deprive any person of life or liberty except in accordance with the procedure established by law. Considered in the context of the several other fundamental values which substrate the Indian constitutional architecture, including those in Articles 14 and 19, it is beyond disputation that an executive agency of the State (including the police) is not authorized to deprive a person of his life without substantive legislative authority and in accordance with the procedure established by law. This non-derogable constitutional value and the concomitant executive and governance obligation could be preserved only by eternal vigilance towards maintaining the sanctity of life and liberty, effectuated and operationalised by relentless pursuit and administering of the sanctions enjoined by law, against depredation of life and liberty, by the unlawful conduct of any person, agency or instrumentality.
In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.
In this case, the Court is called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.
Robert Jackson, J., recorded a profound observation on the principles that must substrate the balancing between liberty and authority. The jurist said: The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court’s day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. These are the competing considerations involved in judging any measures which government may take to suppress or disadvantage its opponents and critics. -- American Communications Association v. Douds([5][5]).
Summary of the factual matrix of the cases on board:
W.P.No. 15419 of 2006 is instituted by the Andhra Pradesh Civil Liberties Committee (for short ‘the APCLC’) for a direction to the concerned police to register a crime into the offence of killing of eight (8) Maoist naxalites in an alleged encounter that occurred on 23-07-2006 in the Nallamala Forest near Darboina Penta and Nekkanti Palutla villages of Yerragondapalem mandal, Prakasham District, by registering a case under Section 302 of the Indian Penal Code, 1860 (for short ‘the IPC’) against the police personnel who participated in the alleged encounter; to initiate proceedings for their prosecution; to call for all the records with regard to the crime registered on this encounter; and to pass such other order or orders as may be deemed fit and proper in the circumstances of the case.
The sister of one of the deceased Rajitha @ Shyamal filed W.P.No. 857 of 2008 in respect of the same incident as is covered by the above writ petition. The petitioner seeks disclosure of the identity of 15 members of District Special Police, S.I and P.C. Nos. 430 and 1843 of Yerragondapalem P.S. and a direction to register a case against the concerned police officers u/Sec. 302 IPC in view of their involvement in the death by encounter of petitioner’s sister and 7 others.
W.P.No. 26358 of 1999 is filed for a declaration that the inaction of the respondents Nos. 3 and 6 in proceeding under law against the concerned Police officers of the 1st respondent P.S. (for having opened fire without provocation thereby severely injuring the petitioner’s husband on 15.6.1999 evening at Gajasingavaram, Gambhirraopet Mandal, Karimnagar District) and failing to take financial and other responsibility for the medical care and well being of the injured, is arbitrary and illegal; for a direction to the 6th respondent to provide adequate medical treatment; for compensation in an amount of Rs. 2 lakhs towards damages and costs of the medical expenses incurred; and for a further direction to the respondents 3 and 6 to prosecute the concerned police personnel of the 1st respondent P.S. in accordance with law.
W.P.No. 7906 of 2000 also is by the APCLC for preservation of the bodies of the persons killed in an encounter that occurred in Kaukonda Hills, Parkal Mandal, Warangal District; for handing over the bodies to the family members after identification; and for a direction to register a crime u/Sec. 302 IPC.
W.P.No. 14475 of 2002 is again by the APCLC to direct the 6th respondent to register a case u/Sec. 302 r/w Sec. 34 IPC against the respondents 1 to 5; direction to the State (R-7) to entrust the investigation in the said case to the C.B.I. (R-18) in relation to the death in encounter of one Durga Prasad @ Pilli Prasad at Vijayawada on 7.6.2002; and for suitable compensation to the family members of the deceased. The deceased Durga Prasad was arrested by the Vuyyur Town Police on 19.5.2002 in connection with Cr.No. 75/02 alleging his involvement in the murder of Sirikonda Venkanna. According to the version of the State during the course of investigation in Cr.No. 75/02 Durga Prasad was perceived to be concerned with Cr.No. 161/02 for the death of one Peyyala Ramu. He was taken into custody in respect of that crime too. While in police custody and in the early hours of 5.6.2002 when the accused Durga Prasad was being escorted out of the police lock up for answering calls of nature he escaped and Cr.No. 444/02 was registered against him. On 7.6.2002 during the efforts to trace the absconder Durga Prasad and on information the police party proceeded towards Gunadala Railway Station. On the night of 8.6.2002 the police found two persons consuming liquor. On questioning the identity of the two persons, one escaped under the cover of darkness and the other attacked the Inspector with a knife and inflicted bleeding injuries. The S.I. fired in private defence resulting in instantaneous death. The deceased was identified as Durga Prasad. Thereupon Cr.No. 448/02 was registered under Sections 332, 307 and 100 r/w 34 IPC and Sec. 134 Cr.P.C. and investigation taken up.
W.P.No. 440 of 2003 is by the APCLC for preservation of 6 bodies killed in two different alleged ‘fake encounters’ occurred on 5.1.2003 and 6.1.2003 within the jurisdiction of the respondents 1 and 2 P.S; to direct post mortem by a team of forensic doctors duly videographed; to hand over the bodies to the family members; and to register a case u/Sec. 302 IPC against the Police Officers involved in the two incidents.
W.P.No. 15419 of 2006 (the lead writ petition) was admitted on 27-09-2006 and certain interlocutory directives were issued. By way of W.P.M.P.No.20579 of 2007 the petitioner sought a direction to the respondent Nos. 3, 5 and 8 to reveal the names of the members of the police special party who participated in the operations that resulted in the death of eight (8) Maoist Naxalites on 23-07-2006. This Court by an order dated 30-07-2007 rejected this application on the ground that the petitioner had made no such request to the concerned authority under the Right to Information Act, 2005 (for short ‘the Information Act, 2005’).
The petitioner submitted an application on 01-08-2007 to the 3rd and 5th respondents and the Deputy Superintendent of Police, Gurajala, Guntur district, the Investigating Officer in Cr.No. 30 of 2006 for particulars of the police officers who participated in the encounter. The 5th respondent who is the designated Information Officer under the Information Act 2005 rejected the application on 30-08-2007. The petitioner thereupon filed W.P.M.P.No. 29843 of 2007 for a direction to the respondents to reveal the names of the police officers. In response thereto, the first respondent-State filed W.P.M.P.No.31250 of 2007 claiming privilege under Section 123 of the Indian Evidence Act regarding disclosure of names, on the ground that it would adversely affect the security, law and order in the State.
A Division Bench of this Court on 30-11-2007 directed the writ petition to be listed before a Full Bench having regard to the issues raised in the writ petition as also the claim of privilege by the State.
The Full Bench by its order dated 04-12-2007 referred the writ petition along with the interlocutory applications therein (W.P.M.P.Nos. 29843 of 2007 and 31250 of 2007) to be heard and decided by a Larger Bench of five Judges.
Earlier, a Full Bench of this Court in A.P. Civil Liberties Committee vs State of A.P (APCLC) ([6][6]) had considered the issue regarding the nature of the action to be taken in the event of death of an individual in an encounter with the police and per majority recorded the following conclusions:
“(a) No crime can be registered under Section 307 I.P.C. against a person killed in an encounter;
(b) Whenever a person is found dead out of bullet injuries in an encounter, with the police,
(i) If a specific complaint is made alleging that any identified individual had caused the death of such person, an independent F.I.R. shall be registered in it, if it satisfied the law laid down by the Supreme Court in State of Haryana and Ors vs Bhajan Lal and Ors ([7][7]),
(ii) In the absence of any complaint, the procedure prescribed under Section 176 of the Cr.P.C. shall be followed, without prejudice to any investigation that may be undertaken by the Police itself.
(iii) The judgment in People’s Union for Civil Liberties v. Union of India([8][8]) does not represent the correct legal position.”
In view of the privilege claim by the State (regarding disclosure of names), the (referring) Full Bench opined that the following five (5) issues and other related questions may necessitate reconsideration of the judgment in APCLC’s case (6 supra). The specific issues/questions referred to the Larger Bench are:
1) What would be the remedy available in law to a complainant who is unaware of the identity of the individual police officer whose firing had caused the death of a person due to bullet injuries?
2) Whether the Executive is bound to disclose or can it claim privilege from disclosing the identity of the said police officer?
3) In selectively refusing to disclose the identity of such police officer/s, is the Executive not exercising the judicial power of the State and conclusively to judge for itself whether the officer/officers concerned had acted in self-defence?
4) If so, would such usurpation of the judicial power of the State, by an Executive act of claiming privilege, not result in deprivation of life and personal liberty otherwise than in accordance with the procedure established by law violating Art. 21 of the Constitution of India?
5) Does the Executive have the power to determine to what extent the rights conferred by Part-III should be restricted or abrogated in their application to the police force of the State when such power is conferred exclusively only on the parliament under Art. 33 of the Constitution of India?
On 31-12-2007 while considering the draft issues presented on behalf of the petitioner, this Court granted liberty to all the parties to file their respective draft issues. After hearing the learned counsel for the respective parties and considering the draft issues, this Bench on 07-02-2008 framed the following issues for consideration:
ISSUES:
(1) 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, is there commission of a cognizable offence (including in an appropriate case the offence of culpable homicide); and whether the information relating to such circumstances requires to be registered as a First Information Report obligating investigation in accordance with the procedure prescribed by the Code of Criminal Procedure, 1973?
(2) Whether 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 be could conclusively determined during investigation; whether the final report submitted by the police officer to the Magistrate on completion of the investigation is conclusive or whether the existence of the circumstances coming within the exceptions requires to be determined only in appropriate judicial proceedings?
(3) Whether a magisterial enquiry (whether under the Code of Criminal Procedure or extant Police Standing Orders) into the cause and circumstances of death occasioned by an act of a police officer obviate the rigor of investigation and trial of such act?
(4) Whether the State, the police establishment or a police officer is immune from an obligation to disclose the identity of a Police Officer who had committed an act causing the death of a person, to enable an investigating officer or any person aggrieved by such death to effectively seek justice; and if so, in what circumstances or contexts?
Apart from W.P. 15419 of 2006, the other writ petitions were also tagged on to enable the parties in those writ petitions to present their points of view on the issues framed on 07-02-2008 for consideration by this Bench. We have already recorded in brief the reliefs sought in the above writ petitions.
Heard Sri Bojja Tarakam, the learned Senior Counsel for the petitioner in W.P.No. 15419 of 2006; Sri K. G. Kannabiran, the learned Senior Counsel for the respondent No.9 in this writ petition and for the petitioner in W.P.No. 440 of 2003; Sri V. Raghunath, the learned counsel for the petitioner in W.P.Nos. 7906/2000, 14475 of 2002 and 440 of 2003; Sri K. Balagopal, the learned counsel for the petitioner in W.P.No. 26358 of 1999, the learned Advocate General for the State for the official respondents in all the writ petitions; Sri U.R. Lalit, learned senior counsel for the 10th respondent; and Sri Trideep Pais and Ms. Nitya Ramakrishnan, learned Advocates for 11th respondent (in W.P.No.15419 of 2006). We have also heard Sri C. Padmanabha Reddy, learned Senior Counsel as Amicus Curiae.
Except in W.P. No. 26358 of 1999, in the other writ petitions the common factor is the occurrence of a death or deaths of individuals consequent on police firing. In W.P.No.26358 of 1999, the allegation is that on 15.6.1999 while the petitioner’s husband and an acquaintance were consuming beverage at the local toddy shop, without any provocation plain clothed policemen pounced upon the petitioner’s husband and started beating him. When her husband was running away from the shop, the police opened fire at him from behind, a bullet lodged close to the spine and he sustained a very grievous injury and had almost become paralyzed.
On behalf of the petitioners (in the generality of cases) it is alleged that the police firing was either wholly unjustified and without any provocation whatsoever or was an excessive and disproportionate employment of force and therefore constitutes conduct amounting to the cognizable offence of murder. The State, the Police establishment of the State and the State Police Officers Association contend per contra, that the police had to resort to firing only in response to firing in the first instance by the opposite party, in self-defense and hence the conduct is non-culpable.
The pattern/practice:
In all the cases the uniform feature is also that the earliest information is conveyed by police officials to the jurisdictional Police Station. The information so conveyed is generically to the effect that on reliable information received as to a meeting of extremists/Maoists /naxalites, a posse of police officers was deputed to the location to apprehend members of the banned organization. As the police party was approaching the rendezvous the members of the assemblage fired upon the police party. In the return of fire by the police officers in self-defence the death(s) occurred.
On receipt of such information the officer in-charge of the police station, in purported compliance with the provisions of Sec. 154 of Code of Criminal Procedure, 1973 (‘the Cr.P.C.) records such information and enumerates certain provisions of Indian Penal Code, 1860 (for short ‘IPC’)/the Arms Act, 1959 (‘the Arms Act’)/the Explosive Substances Act, 1908 (‘the E.S. Act’). All the enumerated provisions of the substantive law implicate the alleged criminal conduct of private individuals in the transaction. Wherever Sec. 100 IPC is enumerated in the First Information Report (‘the FIR’) it is a reflection of the plea of self-defence claimed (by the police party), in the information, which led to the registering of the FIR. In no case however is any provision of law implicating the criminal conduct of any member(s) of the police party spelt out, in the FIR.
The claim in W.P.No. 15419 of 2006 :
Cr.No. 30 of 2006 dated 24.07.2006 of Yerragondapalem P.S. (Y.Palem PS) [relatable to the issues arising in W.P.No. 15419/06 is illustrative of the invariable pattern that is apparent in homicide consequent on firings by police officers. In W.P.No. 15419/06 the petitioner – the President of the APCLC, pleads that initially there was a news that Mr. Madhav, State Secretary of CPI (Maoist) Group was caught but the other members of the party were shot dead; subsequent telecasts had different versions – some that Madhav was injured and escaped and others that he died in a police encounter. It is further pleaded that the deaths that occurred in the Nallamalla forest area in Y.Palem Mandal on 23.07.2006 are targeted police killings not immunized by any provisions under law including the provisions of the Indian Penal Code 1860 and that the killings constitute culpable homicide amounting to murder, by Police Officers.
The response of the D.G.P. :
The Director General of Police of the State has filed a counter affidavit dated 07.08.2006. Pages 2 to 7 of this counter set out a peroration as to the basic tenets of the extremists’ ideology, the rejection of democratic and parliamentary way of life; the general strategies of the CPI (Maoist) party which subvert the rule of law fundamentals; that the spread of extremist activities and naxalism is a potent threat to the internal security of the country and incidents and statistics of extremist activities; and the statistics regarding deaths of civilians and police personnel. The 2nd respondent further pleads that all cases of fire resulting in death of extremists are investigated with due diligence and adherence to the guide lines issued by the NHRC and various courts; each encounter death is registered as a cognizable offence and information provided to the Executive Magistrate by sending the original FIR to the Judicial Magistrate; the investigation is entrusted to an officer of the rank of a Deputy Superintendent of Police of another District who is required to file a charge sheet within three months; and the Executive Magistrate conducts the investigation in the first instance by way of an enquiry u/Sec. 176 of the Criminal Procedure Code 1973 (Cr.P.C.).
It is also the case of the 2nd respondent that police use adequate force in order to arrest u/Sec. 41(a) and 46(3) of the Cr.P.C. and that the police action is a bona fide case of use of adequate force which may in certain cases result in the casualty of the accused extremists (page 7 of the counter).
It is further pleaded in the counter affidavit that in addition to the investigation and inquest as above, in every case of encounter the District Collector orders a magisterial enquiry by an Executive Magistrate above the rank of Sub Divisional Magistrate, who holds an open enquiry widely published. The consequent report is sent to the District Collector & District Magistrate, who on being satisfied with the enquiry send a report to the Government and if not satisfied order a de novo enquiry. The report from the District Collector is scrutinized by the Government including by the Law Department and if not satisfied a de novo enquiry is ordered.
The 2nd respondent pleads (in respect of the incident in question) that on reliable information that the CPI (Maoist) are conducting a meeting in Markapur reserve forest to plan large scale violence in the forthcoming Gram Panchayat elections, on 22.07.2006 the Addl. Superintendent of Police (Operations) Markapur deputed the complainant, the S.I. of Police, Y.Palem PS with two Constables of the PS and 15 members of the District Police Special Party to the forest to arrest the Maoists. On 23.07.2006 at about 10 am while conducting combing operations near a hillock about 30 Maoists wearing Olive Green uniform armed with guns were found coming in the opposite direction and on seeing the police party opened fire. The police party warned them to surrender. The warning was not heeded and the firing continued on the police party. In self-defence the police party opened fire on the Maoists. The exchange continued for about one hour. During the firing the complainant contacted the police station. After cessation of the firing the police party found three male and five female dead bodies of Maoists including of Madhav, the Secretary of the AP State Committee. Arms and ammunition such as hand grenades, wireless sets, kit bags, cash and other material were also found at the scene of occurrence.
The A.S.I. of Police of Y.Palem PS, who received incomplete information about the encounter informed the same to the Inspector of Police, Markapur and was directed by the latter to make an entry in the General Diary. On receiving further details of the incident on 24.07.2006 from the complainant, Cr.No. 30/06 was registered under Sections 148, 307 r/w 149 IPC, Secs. 25 and 27 of the Arms Act; Sec. 5 of the E.S. Act and Sec. 8 of the APPS Act r/w Sec.100 IPC.
After setting out the description of the scene of occurrence and the procedure adopted for immediate investigation and conduct of the inquest, the counter narrates that four deputed Mandal Executive Magistrates who comprised the inquest party unanimously opined that the deceased and about 22 other unidentified Maoists had opened fire on the police party while they were conducting combing operations with a view to kill them; that the police party opened fire in self-defence and the Maoists died in the resultant exchange of file. Elsewhere in the counter (page 27) it is pleaded that during the exchange of fire three police men RSI Sreeramulu, PC 2687 Pydiraju and PC 5530 Kiran Kumar, were injured. The SDPO, Gurajala of Guntur District, is appointed as the Investigating Officer and the consequent investigation would determine whether the police party opened fire in self-defence or exceeded this right. It is the specific defence of the 2nd respondent that as neither the FIR nor any information received from the SI of Police, Y.Palem, disclosed commission of any offence by the Police Officers involved, no case is made out implicating the ingredients of Sections 299 and 300 IPC and therefore there is no warrant for incorporating an offence by the Police Officers u/Sec. 302 IPC.
The 2nd respondent pleads that one of the deceased Madhav, State Secretary, is an accused in 9 offences in several Police Stations in Mahabubnagar District including offences u/Sec. 302 IPC. The counter is however significantly silent as to whether the other deceased in the police firing on 23.07.2006 are accused in any offence and on what charge.
A brief overview of the written submissions filed on behalf of the several parties in this batch of writ petitions :-
(A) On behalf of the petitioner (in W.P. No. 15419/06):
It is urged
(i) On issue No.1: That when a police officer(s) causes the death of a person while acting or purporting to act in discharge of duties or on a claim of self-defence, the officer has presumptively committed the offence of culpable homicide; the information relating to such circumstance must be registered as a FIR and thereafter investigation pursued according to the procedure ordained in the Cr.P.C.; the contention on behalf of the State by the learned Advocate General (that Cr.No. 30/06 of Y.Palem PS has already been registered against the Maoists and during the course of investigation of this crime if it is revealed that the police has committed an offence that aspect would also be investigated and there is no necessity of registering the police conduct as a separate crime for independent investigation), is extravagant and inconsistent with the provisions of the Cr.P.C; where two sets of offences – one by the extremists and the other by the police, are prima facie revealed as forming part of the same event both the crimes would have to be independently registered; in every case of extremist killing in police firing the information conveyed clearly indicates also the death of citizens, prima facie a culpable homicide; the appropriate provision of the Indian Penal Code indicating the offence(s) presumed to have been committed by the police (subject to investigation and/or trial, as the case may be) must be necessarily indicated in the FIR; in the absence of such enumeration of offences by the police, the FIR would be a mere detailed description of an event without indication that the event implicates the commission of an offence prohibited by law; invariably under the current practice in cases of extremists killing inter alia Sec. 307 IPC is enumerated (indicating the offence committed by the extremists), while omitting any enumeration of offences by the police including in case of a death of a citizen, u/Sec. 302 IPC; when the investigating officer pursues the investigation u/Sec. 157 Cr.P.C., the I.O. is investigating into the offence u/Sec. 307 IPC and not into the conduct of the police implicated as one u/Sec. 302 IPC.
(ii) On issue No.2: The justification of private defence is u/Secs. 99 and 100 IPC. These provisions have to be read in conjunction with sec. 105 of the Indian Evidence Act 1872, which enjoins that the burden of proving the existence of circumstances bringing the case within any of the general exceptions to the IPC is upon the claimant of self-defence and the court shall presume the absence of such circumstances. The exercise of the right of private defence cannot be determined during investigation and the final report submitted by the I.O. to the Magistrate is not conclusive. Only in judicial proceedings is it legitimate to determine that the police conduct in an extremist killing event constitutes a valid self-defence justification.
(iii) On issue No.3: A Magisterial inquiry u/Sec. 174 Cr.P.C. is applicable only to cases of suicide and other suspicious death; the scope of such inquiry is limited to the apparent cause of death, for noting down wounds and other marks of injury and to elucidate the manner or by what weapon or instrument the injuries on the body might have been caused. Identification of the perpetrator of the homicide is beyond the scope of Sections. 174 and 176 Cr.P.C. Enquiry by the Magistrate u/Sec. 174 Cr.P.C. is not a substitute for either investigation u/Sec. 157 Cr.P.C. or the trial by a judicial proceeding.
(iv) On issue No.4: Neither the police establishment nor the police officer is immune from an obligation to disclose the identity of the police officer(s) who caused the death of a person. When information is received by an officer in charge of a police station that a homicide has occurred at the hands of a police officer, though claimed to be in self-defense, it is the duty of such informant to reveal the names of the police officer(s) who have committed the homicide; where the informant (even a police officer) admits in an information conveyed to the police station that he and/or other police officer(s) committed a homicide, it is the duty of such informant as also the duty of the officer in the police station recording such information to record the names of the perpetrators of the homicide, since the conduct involved is ex facie culpable. Sec. 202 IPC makes an offence, the conduct of intentional omission to give any information respecting an offence. The contention on behalf of the State that since a person aggrieved by a non-investigation by the police can file a private complaint u/Sec. 200 Cr.P.C., is not answer to the non-derogable obligation of the informant to provide the names and descriptions of the police officer(s) involved or the statutory obligation of the officer in charge of a police station to record the information or to demand the furnishing of such information. The current procedure adopted by the State is not authorized by law and is at variance with the law. Since it is the integral constitutional obligation of the State to ensure law and order and to investigate crime and since culpable homicide is an offence against the State, the State cannot contrive a procedure, which subverts the non-negotiable and fundamental principle of governance.
(B) Submissions by the 9th respondent (W.P.No. 15419/06):
(i) The question is whether an encounter killing by the police is a culpable or a non-culpable homicide? In the absence of any legislatively enabled executive use of deadly force in specified circumstances, every homicide by the police is presumptively culpable homicide. The first point of inquiry is whether a person by an act has caused the death of another. If the answer is in the affirmative, the second stage of inquiry invites itself i.e., as to in which of the four clauses in Sec. 300 IPC, the act of the perpetrator may fall and if it does not fall within Sec. 300 IPC, the conduct presumptively amounts to culpable homicide not amounting to murder, hence punishable under Sec. 304 Parts I & II IPC. The police to succeed in a plea of self-defense justification must establish in a court that the exercise of the right to private defense was on account of reasonable apprehension of death, the apprehension occurring on the spot and at the time when the police firing was resorted to. The police must also establish that the force used was reasonable and proportionate and that there was no ill-will or malice in the performance of the duty that led to the homicide. Since combing operations are conducted after planning; on the basis of intelligence reports; and special forces are deployed to engage in targeted killings of Maoists, there is prima facie presumption of malice and predisposition to homicide.
(ii) On issue No.2: Once the plea of self-defense is set up or presented, an offence of murder shall be presumed, the perpetrator(s) must be charge sheeted for such offence and the accused required to establish the claim of self-defense in a Court.
(iii) On issue No.3: A Magisterial enquiry is not a substitute for a session’s trial. The police who participated in an encounter killing by a mere declaration that the killing occurred in exercise of a right to private defense, cannot endow themselves immunity from prosecution nor can the investigating officer close the investigation by accepting such declaration. The death of persons in a police encounter is indisputably a cognizable offence. An assailant’s claim to self-defense must be investigated in the first instance only as a part of the investigation into the offence of culpable homicide. Neither a Magisterial enquiry nor a media presentation by the Director General of Police that the victims of encounter were killed in self-defense, are a lawful substitute for a clearly focused investigation pursuant to registration of the FIR enumerating the offence of culpable homicide and thereafter prosecution in a judicial proceedings.
(iv) On issue No.4: Where there has been a forfeiture of life there can be no immunity from the obligation to disclose information relevant to the investigation of such act. Any claim to immunity in this behalf is in clear violation of Article 21 of the Constitution, a non-derogable constitutional value. Right to life jurisprudence even in the Indian context explicates that preemptive self-defense or an anticipatory aggression cannot lead to diminished official responsibility to the inexorable mandate of the law.
(C) Submissions on behalf of the petitioner (W.P.No. 26358/99) :
The agent of the State who claims to have taken the life of another in the course of duty under the cover of permissible action or reaction cannot be a judge in his own cause. The State actor must submit to the process of law as applicable to any citizen in a claim to have taken life for self-preservation/defense, or under other circumstances permissible in law. While the raft of justification circumstances may be wider in the case of police officials/public authority than a private citizen, the principles of law applicable are identical.
Where a police officer conveys information to a police station inter alia admitting to the commission by himself and/or by other officer(s), of a homicide(s), a case of culpable homicide amounting to murder has to be registered against the perpetrator(s) as revealed in the information; the case so registered must be investigated fairly, impartially and professionally by an independent agency to identify the perpetrators of the offence as enumerated; and the eventual determination whether the homicide is culpable or non-culpable (on account of legitimate justification defences as would exonerate the perpetrator under criminal law), has to be determined by a competent court and not by the assailant police officer(s) or the investigating police.
An interactive analysis of the provisions of Sec. 129 Cr.P.C. r/w Sec. 130(3) Cr.P.C.; Sec. 149 Cr.P.C. r/w Sec. 97 IPC; Sec. 46(2) Cr.P.C., and Sections. 99 to 103 IPC, clearly discloses that since the exercise of a power and the manner and extent of its exercise is conditional upon, controlled or limited by the requirement of conformity to reasonable and objective standards, the discretion employed in the exercise of such regulatory power is subject to judicial review and no claim of unfettered executive discretion is legitimate. In case of injury or death caused by police, the perpetrator’s claim to the existence of circumstances which bring the facially prohibited conduct within the justification defenses either u/Section 76, 79 or 97n r/w 100 IPC (even in the absence of a complaint by or on behalf of a victim), judicial review of the validity of claims of justification defenses is mandatory and it is the competent court which must decide whether the police had used force in the manner and to the extent permitted by law or had exceeded the parameters of justification defenses and thus committed an act that is culpable.
Since the death caused in a police firing is facially a cognizable offence, the offence must necessarily be registered and investigated. The substantive provisions of criminal law read with the adjectival provisions of the Cr.P.C. and the Evidence Act show that police killings are presumptively and at the first instance a cognizable offence and the justification of exceptions to substantive criminality as provided in Chapter IV IPC and elsewhere in the Code do not derogate from the conduct being initially and presumptively an offence. At the threshold when information is conveyed to the police of killing in police action, what is on record is an offence of culpable homicide and the conduct continues to an offence until the circumstance that renders the conduct as non-offence come on record in the investigation and are accepted as such by a competent court. The executive and investigatory obligation is non-derogable and requires that the presumptive offence shall be investigated and the satisfaction that justification defenses are validly established must be conclusively declared only by a competent court and not by the investigating officer.
(D) Submissions on behalf of the petitioners (W.P.Nos. 7906/00, 14475/02 & 440/03):
While asserting that the police in the State are indulging in extra legal and extra judicial executions, the submissions made on behalf of the petitioner and the 9th respondent (in W.P.No. 15419/06) are adopted.
(E) Submissions on behalf of the 11th respondent (W.P.No. 15419/06):
On issue Nos. 1 to 3: the State’s obligation to punish extra-judicial homicide is a corollary of a citizen’s (the victim’s) right to life as well as the right to dignity of the victim’s kin. Art.21 does not enjoin mere procedure but enjoins due procedure. The status of the suspected offender or of the victim is irrelevant. Chapter XVI of the IPC enumerates offences affecting the human body and lists six variations of homicide, which are considered culpable and made cognizable. (Sections 302, 303, 304, 304A, 304B and 314 IPC) Except an offence falling u/Sec. 304A (causing death by rash and negligent act) all other offences are non-bailable and hence exclusively triable by a Court of Session. This is a reflection of the legislative recognition of the value and inviolability of human life.
Chapter IV IPC lists general exceptions which must be read as exceptions to every offence. In addition some offences are subject to specific exceptions and defences e.g., Secs. 300 and 499 IPC. The exceptions apply to all without any special exceptions in favour of a public servant.
If information is received in any form whatsoever of the commission of a cognizable offence, investigation has to follow. The first information of different transactions or offences in the same occurrence may be the same for the several offences; while the FIR may record facts showing different transactions in the same course of events, the investigation reports u/Sec. 173 Cr.P.C. would be diverse. Distinct investigations are obligated in counter cases. Private defense or an exception is only to be decided at trial.
The enumeration of the provisions of substantive law in the FIR or in the final report u/Sec. 173 Cr.P.C. is not conclusive and the court may always alter the charge (Sec. 216 Cr.P.C.).
Only when the investigation discloses limited or no material qua a particular person, such person may be released u/Sec. 169 Cr.P.C. Where a nexus between the accused and the offence is established or indicated by the investigation, Sec. 169 Cr.P.C. has no application. A plea of private defense arises if the evidence links the suspect to the offence. In all other circumstances the accused must be forwarded to the Magistrate who is required to commit the case to Session on disclosure of offence(s) triable by the Session Court. Even in a private complaint context, the scrutiny by the court is only to ascertain whether the ingredients of a cognizable offence are made out. Whereupon process must be issued to the accused.
A final report u/Sec. 173 Cr.P.C. for closure of a case of homicide on an assumption that the homicide is not culpable on account of general exceptions including the right of private defense justification is beyond the authority of the police nor is it within the authority of the Magistrate who must necessarily commit the case to Session where alone the vitality and applicability of the general exceptions must be considered. Since culpable homicide is exclusively triable by a Court of Session, the Court of Session must also consider private defense justifications. Private defence justification issues are to be proved but not presumed and require leading of evidence.
On issue No.4: A police killing even in a purported encounter is potentially the subject matter of a public trial in accordance with law. What is statutorily in the public domain cannot be in the realm of privilege. The right to dignity of the victim’s kin entitles them to a full explanation of the occurrence and of the prosecution of the guilty and hence the concomitant information can neither be privileged nor withheld.
(F) Submissions by the learned Advocate General on behalf of the 1st respondent (W.P.No. 15419/06) :
On issue No.1: U/Sec. 154 Cr.P.C., information relating to commission of a cognizable offence is required to be registered (FIR). When the information does not disclose an offence (keeping the general exceptions in mind) no FIR can/need be registered, since no offence is disclosed. Implicating a requirement that registration of FIR is mandatory even when the information on its face discloses that the justification of self-defense is available and if applied no cognizable offence is committed, would be doing violence to the language of Sec. 154 Cr.P.C. If some information is received which does not clearly disclose a cognizable offence, it does not prevent the police from verifying the relevant facts and thereafter if the facts disclose commission of a cognizable offence to register FIR and investigate the case further. Under Sec. 157 Cr.P.C. a police can investigate on information received or even otherwise. To contend that the FIR must be registered in all cases of information received about death caused by a police office in discharge of his duties or in self-defense would lead to consequence not envisaged by law – to absurd results. Every Judge, child, doctor, public servant or citizen whose action results in injury or death will have to be necessarily prosecuted even when they are fairly covered by the general exceptions. If in the course of investigation by an investigating officer/enquiry by a Magistrate, it is revealed that the plea of self-defense is a facade, the provisions of Cr.P.C. enable the Police/Magistrate to prosecute the person whose conduct constitutes a cognizable offence.
On issue No.2: If during investigation it is revealed, in the light of general exceptions or otherwise that no offence has been committed, a report to that effect shall be filed u/Sec. 173 Cr.P.C. before the Magistrate. If the investigation reveals commission of cognizable offence even so such a report must be filed. The Magistrate is required to examine the final report filed u/Sec. 173 and from the said report or from other information may take cognizance or refuse to do so depending on the material available before him. The investigation by the police is thus not conclusive of the matter.
On issue No.3: The police u/Sec. 157 Cr.P.C. may undertake further investigation even after intimation to the Executive Magistrate to hold inquest u/Sec. 174 Cr.P.C. A Judicial Magistrate u/Sec. 190 Cr.P.C. may take cognizance of any offence upon a complaint, upon a police report, upon information received or upon his own knowledge that an offence has been committed. A Magisterial enquiry into the facts and circumstances of death does not obviate the rigor of investigation and trial.
On issue No.4: In the facts of this case the issue has arisen, in view of the observations/findings in the majority opinion of the Full Bench in APCLC v State (6 supra). The learned Full Bench observed: “If a specific complaint is made alleging that an ‘identified individual’ had caused the death of such person, an independent FIR shall be registered in it, if it satisfies the law laid down by the Supreme Court in State of Haryana v Bhajan Lal. ”
The State specifically concedes the legal position that the conclusion recorded by the Full Bench in Para 65(b)(i) [extracted above], is incorrect. The Cr.P.C. enables the filing of a complaint even against an unknown person/offender. Since the State now concedes that the petitioner can lodge a complaint even against an unknown person, the issue does not survive. The concerned authority should be left to exercise the discretion of revealing the names of police personnel depending upon the facts and circumstances of each case. The State is not claiming any class immunity from disclosure. The petitioner (in W.P.No. 15419 of 2006) approached the authorities under the Right to Information Act, 2005 (the 2005 Act). The Designated Officer under this Act – the Station House Officer, Y.Palem, exercised his statutory discretion and rejected the petitioner’s application, by an order dated 30.08.2007. Against such order the petitioner has a remedy under the same legislation. In view of the exceptions carved out qua Sec. 8(1)(g) & (h) of the 2005 Act, in the facts and circumstances of this case and since the lives of police personnel would be endangered if their names are revealed, no disclosure of names is required under law. The State however does not claim immunity from disclosure to the Court nor does it claim any general class immunity.
(G) Submissions on behalf of the 10th respondent (W.P.No. 15149/06):
On issue No.1: It is not necessary in case of a death (occurring in the course of an exchange of fire with the police) that it should automatically lead to the registration of an offence. The Criminal Code provides for an intermediary stage, of inquest under Sections. 174 to 176 Cr.P.C. Sec.176 stipulates that the inquest can be in addition to or in the place of investigation. The current (executive) practice of conducting an inquest by the RDO, acting as the executive magistrate, following the guidelines envisaged by the NHRC, is an effective and adequate review of the incidents of exchange of fire.
A police officer has the discretion, under Sec. 154 Cr.P.C, to ascertain whether the information discloses the commission of a cognizable offence. Where the recording officer in his discretion is satisfied that the information received does not disclose the commission of a cognizable offence, he can decline to record the information. In that event the complainant can take recourse to the other remedies under the Cr.P.C (under Sections. 153(3) and/or 190).
After recording the information under Section. 154, the investigating officer has yet the discretion (under Sec. 157), of determining whether the information disclosed requires further investigation. If satisfied that no investigation is warranted, the recording officer is entitled to drop all further investigation and report the same to the Magistrate. The investigating officer is entitled to take into account the factual aspects, including the various exceptions provided under the Cr.P.C including the provisions authorizing the use of force by the police. If no cognizable offence is disclosed, more so if no offence of any kind is disclosed the police would have no authority to undertake an investigation.
Sections 149 and 152 of the Cr.P.C obligate the police to interpose themselves between persons contemplating or actually committing offences and the rest of the society. Sections 129 to 132 Cr.P.C authorize the use of force by police officers to disperse mobs and unlawful assemblies. Protection is accorded under Section 132 even where the use of force in such situations results in death. Section 151 Cr.P.C authorizes any police officer to arrest any person, where he has knowledge that such a person has a design to commit a cognizable offence. Section 46 Cr.P.C authorizes use of force by the police officer in the course of affecting an arrest. Such use of force, which may result in injury to body or even a fatality, would not constitute an offence. The provisions of Section 6 IPC read with the general exceptions contained in Sections 76 to 106, specifically Sections 76 to 79 enjoin that where injury is caused to a human body or death occurs due to such injury on account of employment of force by police officers in the course of duty, such conduct does not constitute an offence.
On issues 1 and 2: Exceptions can be invoked at the stage of recording the FIR under Section 154 Cr.P.C or at the stage of the investigation itself. It is not necessary that these exceptions should be invoked only in court, at the stage of trial. Sec. 105 of the Evidence Act (the provisions of the Evidence Act apply to judicial proceedings in a court of law vide Sec.1), does not exclude consideration of the justification defenses either during the course of investigation or even at the stage of recording information under Sec.154.
After recording the FIR and taking up the investigation on the basis of such information, any subsequent information couched in the form of a complaint would be treated by the investigating officer as further information received under Sec. 161 Cr.P.C. A second FIR leading to registration of a separate offence is however impermissible.
The discretion inhering in the investigation officer cannot be abrogated or dictated to by the judicial branch and the process of judicial oversight operates only after the investigating officer files the final report.
(H) Submissions of Sri C.Padmanabha Reddy (Amicus Curiae):
On issue No.1: Yes. Sec. 154(1) Cr.P.C. enjoins that every information relating to commission of a cognizable offence, whether given orally (in which event it must be reduced into writing) or in writing to an office in charge of a police station and signed by the informant must be entered in a book to be kept by such officer in such form as the State Government may prescribe, commonly known as the First Information Report. The act of entering the information into the said form is known as the registration of a crime or case.
At the stage of registration of a crime the police officer cannot embark upon an enquiry as to whether the information is reliable and genuine and refuse to register a case on an assumption that the information is not reliable or credible. The officer (in charge of a police station) is statutorily enjoined to register a case and to then proceed with investigation, if he has a reason to suspect the commission of an offence, which he is empowered to investigate u/Sec. 156 Cr.P.C.
Where the information itself indicates that there was an attempt to kill the police party and that in self-defense the police fired at the extremist(s) and this resulted in the death of an extremist(s), the said information comprises an attack by Maoists which is (in practice) registered u/Sec. 307 IPC and other applicable provisions. The other part of the information, that the police opened fire and killed extremist(s) in self-defence must also be registered. The claim of a self-defense justification is available only when clearly justified in accordance with the provisions of the substantive law and the well-entrenched principles.
Where the information discloses presumptive offences by two warring groups each party claiming the other as an aggressor, it is obligatory that two crimes be registered on such information. It is impracticable for the investigating agency to record conflicting statements in the same crime. Where there are rival versions regarding the same episode, they should normally take the shape of two FIRs. The offence for which a crime has to be registered depends on the nature of the first information. If a third party to the transaction gives the information it may be registered u/Sec. 174 Cr.P.C, which may be altered after further information. Where however the information itself is to the effect that a person was killed in firing, it is clearly a case of homicide. The issue whether the police are protected by general or special exceptions must be investigated or (if warranted) pleaded and proved at the trial.
Where the police refuse to register a case u/Sec. 154(3) Cr.P.C. a person aggrieved by such refusal may send the substance of such information in writing and by post to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation by any officer subordinate to him.
Where no action is taken by the police (either u/Sec. 154(1) or 154(3) Cr.P.C.) the complainant (u/Sec. 190 r/w 200 Cr.P.C.) can lodge the complaint before the Magistrate having jurisdiction to take cognizance of the offence. The Magistrate is required to enquire into the complaint in the manner provided in Chapter XV of the Code, but if the Magistrate finds that the complaint does not disclose any offence requiring further action, he may dismiss the complaint u/Sec. 203 Cr.P.C. on recording brief reasons. Where the Magistrate is satisfied that the complaint/evidence recorded prima facie discloses an offence, he must take cognizance of the offence and issue process to the accused.
The provisions of the Cr.P.C. refer only to the registration, investigation and cognizance of offence and not the offender(s). Cognizance means “that a Magistrate must have not only applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in subsequent provisions i.e., proceedings u/Sec. 200 Cr.P.c. and thereafter sending it for enquiry and report u/Sec. 202 Cr.P.C. Cognizance is considered to have been taken on the day when the case is taken on file and process issued to the accused.”
On issue No.2: The final report u/Sec. 173 Cr.P.C. must contain the facts discovered by the police and the conclusions drawn therefrom. If during the investigation and from the material gathered the Investigating Officer infers that the police acted in self-defense a report may be submitted to that effect. Such report may or may not be accepted by the Magistrate. Where the Magistrate decides to accept the final report he has to give notice to the complainant, if any. Where he does not agree with the final report, the Magistrate shall take cognizance if the material warrants cognizance or he may direct the police to further investigate the matter. Sec. 105 of the Indian Evidence Act 1872 is applicable only during trial. Sec. 105 enjoins the court to presume the absence of circumstances bringing the case within any of the exceptions. The accused has an opportunity to rebut the presumption only during trial and not at any previous stage.
The generic factual context :
In the batch of cases presented to this Bench for consideration of the legal issues involved (except in W.P.No. 26358 of 1999, where there is no death but grave injury to a person; and in W.P.No. 14475 of 2002), the generic factual narrative is that on credible information received a police (special police) party was deputed to a rendezvous where some extremist elements are believed to have gathered for the purpose of planning/executing extremist activities. On reaching the locality in question and despite a warning and admonition by the police party to surrender, they were fired upon by the extremists and in the return of fire by the police party (in self-defense) the death(s) occurred and in some instances the surviving members of the unlawful group had escaped. Such information is conveyed by a member of the police party to an officer in charge of a Police Station. On receipt of such information the FIR is registered, purportedly u/Sec. 154 Cr.P.C., recording the information received, enumerating offences under the substantive provisions of criminal and other applicable laws.
The offences enumerated in the FIR are invariably against the members of the private assemblage, often including the deceased, but never ever against a member or members of the police party involved in the engagement, which resulted in the death(s) of citizens. Whether such State procedure conforms to the law is the fundamental issue that falls for our consideration. If it does not, what is the appropriate substantive and procedural State obligation as by law enjoined is also a concomitant question. Though the State, qua the counter affidavit of the 2nd respondent-the Director General & Inspector General of Police, suggests that the wide spread, often endemic and occasionally proliferating operations of the extremists groups are addressed towards seriously undermining and debilitating law and order, endeavoring to overawe and overwhelm the executive and sovereign authority of the State, by violent means and by employment of deadly force against civilian population as well as State authority including members of the police establishment, neither the 2nd respondent nor the State claim any special legislative authority other than the general law (the provisions of the IPC and the Cr.P.C.) in justification of the unique executive process pursued, to investigate the legitimacy qua the law, of the executive conduct resulting in the encounter deaths. The current State practices pursued in such cases is sought to be justified only qua the ordinary laws of the land.
ANALYSIS:
Issue Nos. 1 and 3 may be conveniently considered together
Issue No.1: 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, is there commission of a cognizable offence (including in an appropriate case the offence of culpable homicide); and whether the information relating to such circumstances requires to be registered as a First Information Report obligating investigation in accordance with the procedure prescribed by the Code of Criminal Procedure, 1973?
Issue No.3: Whether a magisterial enquiry (whether under the Code of Criminal Procedure or extant Police Standing Orders) into the cause and circumstances of death occasioned by an act of a police officer obviate the rigor of investigation and trial of such act?
There are several shades of competing positions on different aspects of issue No1, which we propose to analyze and consider.
(A) The scope of Section 154 (1) Cr.P.C.
Sub-section (1) of Section 154 Cr.P.C. is relevant for the consideration of this issue. Sub-sections (2) and (3) of this provision relate to the obligation to furnish to the informant a copy of the information as recorded in sub-sec (1); and the remedy available to a complainant to represent to the Superintendent of Police concerned on the refusal of the Officer in charge of a police station to record the information referred to in sub-sec (1) and the obligation of the Superintendent of Police on receipt of such a representation from the complainant.
Sec. 154(1) reads:
154. Information in cognizable cases: -- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
That the recording of the information received relating to the commission of a cognizable offence in the prescribed form is a non-derogable obligation of the officer in charge of a police station, in view of the legislative mandate in Sec. 154 Cr.P.C., is clear and is not disputed either. The prescribed form for recording the entry of the information so received is referred to as the First Information Report and the act of entering the information in the prescribed form is known as the registration of a crime/case, -- Para 30 –Bhajan Lal (7 supra).
Bhajan Lal clearly declares: At the stage of registration of a crime/case on the basis of the information disclosing cognizable offence in compliance with the mandate of Sec. 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, led by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. Bhajan Lal clearly holds: the police officer has no other option except to enter the substance thereof in the prescribed form, that is to say to register a case on the basis of such information.
Reiterating the interpretation in Bhajan Lal as to the scope of Section 154 (1) of the Code, the Supreme Court in Ramesh Kumari v. State (NCT of Delhi) and others ([9][9]) (Per: H.K. Sema, J) held that the provisions of Section 154 of the Cr.P.C. are mandatory and the officer concerned is duty bound to register the case on the basis of an information disclosing a cognizable offence. The Court also reiterated the relevant principle spelt out in Bhajan Lal, that the genuineness or otherwise of the information can only be considered after the registration of the case; and that genuineness or credibility of the information is not a condition precedent for registration of the case. The same view was reiterated (H.K. Sema, J) in Lallan Chaudhary v. State of Bihar ([10][10]), that the reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Cr.P.C.
In Prakash Singh Badal v. State of Punjab ([11][11]) (Per: Dr. Arjit Pasayat, J) the scope of the provisions of Section 154 (1) Cr.P.C. was again considered. On an analysis of the phraseology employed in Section 154 (1) in juxtaposition with the provisions of Section 41 Cr.P.C. (dealing with the powers of the Police to arrest without warrant), the Supreme Court held that in view of the fact that the Legislature had carefully and designedly employed the expression “information” without qualifying the expression with accompanying words such as “reasonable complaint” or qualifying “information” with the requirement that such information must be “credible”, the Police officer cannot refuse to record the information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. Prakash Singh Badal (11 supra) clearly held that reasonableness or credibility of the information is not a condition precedent for registration of the case and that the sine qua non for recording a first information report is that there must be an ‘information’ and that information must disclose a cognizable offence.
We may at this stage usefully, though briefly, consider the observations of the Supreme Court in Shakila Abdul Gafar Khan (Smt) vs Vasant Raghunath Dhoble and Anr.([12][12]) (per Arijit Pasayat,J). This was a case involving an allegation of custodial/police torture resulting in the death of the complainant’s husband, one Abdul Gafar. The complaint made by PWs 1,2 and 5 against the respondents Dhoble and others during the period 14.10.1983 to 16.10.1983 was not investigated, though their statements were recorded. A private complaint was then made in December 1984 and the case was committed to Session trial in January 1987. The trial court found the accused guilty but the judgment of conviction and sentence was set aside by the High Court in appeal and thereupon the issue was taken to the Supreme Court. Responding to the contention on behalf of the State that the statements by PWs 1,2 and 5 were considered u/Sec. 174 Cr.P.C. and therefore no FIR was registered, the Supreme Court strictured this procedure and observed that the official (the recording officer of the Police Station) acted as though he were deciding the guilt or otherwise of the accused and that the permissible area of application of mind (when exercising jurisdiction u/Sec. 154(1) Cr.P.C.) is limited to finding out the existence of a cognizable offence and nothing beyond that. The Supreme Court further observed that the course adopted by the official makes a mockery of the law.
There is another aspect of the matter arising from a contention advanced on behalf of the State that may usefully be considered at this stage. Relying on the judgment in Aleque Padamsee and others v. Union of India and others([13][13]) (Per: Dr. Arijit Pasayat, J), it is contended by the State that this Court cannot entertain a plea nor issue a Mandamus to the police to register a case under Section 154 (1) of the Cr.P.C. In Aleque Padamsee, the Apex Court on a consideration of the earlier judgments in All India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India([14][14]); Gangadhar Janardan Mhatre v. State of Maharashtra([15][15]); Ramesh Kumari v. State (NCT of Delhi) ([16][16]); Minu Kumari v. State of Bihar([17][17]); Hari Singh v. State of U.P.([18][18]) and Lallan Chaudhary v. State of Bihar([19][19]), ruled that the proper course and remedy available in the context of inaction by the police to register the First Information Report under Section 154 (1) of the Cr.P.C., is to pursue the remedies under the provisions of Cr.P.C. by filing a complaint before a Magistrate. This view is reiterated in Sakiri Vasu vs State of U.P. & Ors. ([20][20]). Though in Aleque Padamsee (13 supra) and Sakiri Vasu (20 supra) the Supreme Court did not specifically hold and in express terms that no Mandamus under Article 226 of the Constitution of India could issue to direct the State executive agency (the police) to perform the statutory obligations under Section 154 of the Cr.P.C., nor did the Court hold that availability of alternative and statutory remedies eclipse the constitutionally endowed jurisdiction under Article 226, the State would contend that in view of the available statutory remedies to an aggrieved, to prefer a private complaint to the Magistrate, no direction to register an FIR could be issued by the court.
This Bench is not constituted to adjudicate on the merits of any particular factual issue involved in any of the cases on board or to grant relief by issue of specific directions to the police. This Bench would consider the normative issues which have been framed by us including as to the obligations of the police under Section 154 (1) of the Cr.P.C., when information is received as to homicide(s) at the hands of police officers in encounter cases and in the context of the informant claiming that the homicide(s) occurred in exercise, by the police of the right of private defense.
Pronouncing upon the contours of the legal obligations of the law enforcement agencies of the State, in such and similar circumstances qua the provisions of Section 154 (1) of the Cr.P.C, in the context of our Constitution’s mandate, is emphatically within the province of this Court.
It requires to be noticed that Bhajan Lal (7 supra) had occasion to deal inter alia with the generic issue as to the scope and obligation u/Sec. 154 Cr.P.C. In the context of the stand by the State the issue before us presents a distinct dimension; whether where the first information is by a police officer intimating death of civilian(s) in an engagement with law enforcement officers of the State (in circumstances claimed by such officers to have occurred while exercising the right of self-defense), is there yet the non-derogable obligation to register the FIR or a distinct FIR (apart from the FIR that is now being registered against the private citizens involved in the engagement), against the police officer(s) involved in the homicide, treating such homicide to be facially a culpable homicide, warranting registration and initiation of the investigatorial process?
(B) Registration of two (2) First Information Reports, if permissible:
In T.T.Anthony vs State of Kerala and Others ([21][21]) Quadri,J speaking for the court (2 judges) held:
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Cr.PC only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of Section 154 Cr.PC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
In T.T. Anthony the factual scenario was that during the visit of one Mr. Raghavan, a Minister in the UDF Government to Kannur District in Kerala State, on 25.11.1994 in a police firing purportedly resorted to for the protection of the Minister and of public and private properties five persons died and six were injured and more than 100 persons suffered injuries in the lathi charge with a few police personnel also sustaining injuries, in a melee which preceded the police firing. The firing occurred at two places – at one location on the orders of the Executive Magistrate and at the other on the orders of the Superintendent of Police. In respect of both the instances Cr.Nos. 353 and 354 of 1994 were registered under several sections of the IPC and provisions of other statutes against specified and unspecified individuals belonging to the CPI (M) party. On strident public demand, on 20.01.1995 a Commission of Inquiry was appointed under the provisions of the Commission of Inquiries Act 1962, to enquire inter alia into the circumstances which led to the police firing and for assessment as to whether the firing was justified, ascertainment of the persons responsible for such firing and incidental matters. After the 1996 Assembly elections there was a change of political fortunes and the LDF Government replaced the UDF Government. In May 1997 the Commission submitted its report recorded that the police firing on 25.11.1994 was not justified and that Mr. Raghavan, a Deputy Superintendent of Police, a Deputy Collector and others were responsible for the police firing. The report of the Commission was accepted by the Government and eventually Cr.No. 268 of 1997 was registered against Mr. Raghavan, the Dy. Superintendent of Police, the Dy. Collector and other Police Officials, u/Sec. 302 IPC. The Investigating Officer filed an interim report implicating 19 police officers. Aggrieved thereby writ petitions were filed by some of the accused. The earlier cases registered against the members of the CPI (M) party came to be closed, after the registration of Cr.No. 268 of 1997. The accused in Cr.No. 268 of 1997 filed writ petitions seeking quashing of the FIR and alternatively for investigation by the CBI. A learned single Judge of the High Court directed reinvestigation by the CBI and disposed of the writ petitions accordingly. Separate appeals were filed by the writ petitioner as well as by the State. The Division Bench partly confirmed the order of the learned single Judge but directed a fresh investigation by the State police headed by a senior officer specified in the judgment, instead of the CBI. The writ petitioners filed appeals before the Supreme Court. The Supreme Court in T.T. Anthony distinguished the earlier judgments in Ram Lal Narang vs State (Delhi Administration) ([22][22]) and M.Krishna vs State of Karnataka ([23][23]) and held that notwithstanding the broad power of investigation including the power to make further investigation u/Sec. 173(8) Cr.P.C., there was no warrant for subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of the successive FIRs whether before or after filing the final report u/Sec. 173(2) Cr.P.C. The Supreme Court held:
27. … In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.
The Supreme Court concluded that the registration of the second FIR as Cr.No. 268/97 and the consequent investigation was invalid and quashed while preserving liberty to the investigating agency to seek the leave of the concerned court in Cr.Nos. 353 and 354 of 1997, for pursuing further investigation u/Sec. 173(8) Cr.P.C.
In Upkar Singh v. Ved Prakash ([24][24]), the Court (Per: Santosh Hegde, J for self, S.B. Sinha and A.K. Mathur, JJ) considered the issue whether a second complaint with respect to the same incident, filed as a counter complaint was prohibited under the provisions of the Cr.P.C. and whether on refusal by the police to register the counter complaint, the Magistrate could direct the police, at any stage, to register the complaint and investigate the same. The earlier decision in T.T. Anthony (21 supra) also fell for consideration. On the facts of Upkar Singh’s case, the appellant and some others were accused of offences under Sections 452 and 307 IPC in crime No. 48 of 1995 of Sikhera Police Station in Fahimpur Kalan village. The appellant had also lodged a complaint in respect of the same transaction against the respondents alleging offences punishable under Sections 506 and 307 IPC, committed against the appellant and his family members. The complaint having not been entertained by the police, the appellant filed a petition under Section 156 (3) of Cr.P.C. before the Judicial Magistrate. Muzaffarnagar. The Magistrate directed the Sikhera Police Station to register a crime against the accused named in the complaint of the appellant and to investigate the same. The police thereupon registered crime No. 48-A of 1995 under Sections 147, 148, 149 and 307 IPC. The 1st respondent (before the Supreme Court) aggrieved by the registration of crime No. 48-A of 1995 preferred a criminal revision petition which was allowed and the order of the Magistrate directing registration of the criminal case was set aside. Aggrieved thereby, the appellant approached the High Court, which Court by the order dated 10-04-2001 and following an earlier judgment of that Court dismissed the appellant’s revision. After the above judgment of the High Court, the judgment of the Supreme Court in T.T. Anthony (21 supra) came to be delivered. The respondents rested their defense before the Supreme Court inter alia on the judgment in T.T. Anthony. We consider it appropriate to extract the reasoning of the Supreme Court in Upkar Singh as set out in paragraph Nos. 21 to 23 of the report:
21. From the above it is clear that even in regard to a compliant arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.
22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.,) (1979) 2 SCC 322: 1979 SCC (Crl) 479) also shows that even in cases where a prior complaint is already registered, a counter-complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554; 1980 SCC (Crl) 272; AIR 1980 SC 326). However, it must be noticed that in T.T. Antony case, Ram Lal Narang Case was noticed but the Court did not express any opinion either way.
23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e., if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
The decision of the Supreme Court in Kari Choudhary v. Sita Devi([25][25]), which was referred to with approval in Upkar Singh (24 supra) also affords salutary guidance on this issue. In Kari Choudhary, the Apex Court had inter alia considered when an investigation should be pursued in both crimes when there are two FIRs in respect of the same case. On facts, the mother-in-law was the complainant in a case of culpable homicide of her daughter-in-law. Eventually however she was transposed as one of the delinquent offenders of the murder. On the basis of the mother-in-law’s complaint, FIR No.135 was registered. During the course of investigation, the police formed an opinion that the murder had occurred in a manner totally different and that it was committed pursuant to a conspiracy hatched by the mother-in-law – Sita Devi, other daughters-in-law and others. Police sent a report dated 30-11-1998 to the Court that the allegations in the FIR 135 are false. The police continued investigation after informing the Court that they had registered another FIR No. 208 of 1998. Sita Devi lodged a protest before the Chief Judicial Magistrate asserting that the police report dated 30-11-1998 is unsustainable and reiterating that the accused in FIR No. 135 are the real culprits. The Chief Judicial Magistrate rejected the protest petition by an order dated 28-08-1999. Sita Devi thereupon challenged the said order in a revision. This was allowed on 07-02-2000 and the Chief Judicial Magistrate was directed to conduct an enquiry under Section 202 Cr.P.C. The police proceeded with the investigation on the fresh information that the murder was by some other persons and after conclusion of the investigation filed a charge sheet on 31-03-2000 wherein Sita Devi and others were arraigned for an offence under Sections 302 read with Section 34 IPC. The Chief Judicial Magistrate committed the case to the Court of Session and the Session Court framed a charge against the accused for the above offence. Sita Devi then moved the High Court for quashing the criminal proceedings. A learned single Judge accepted the challenge and quashed the criminal proceedings. As a consequence Sita Devi and the other accused stood absolved of the charge of murder even without a trial. The observations of the Supreme Court in Kari Choudhary, which throw a light on the issue (relevant for this case), are set out in paragraph No.11 of the judgment:
11…Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid on FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it. (Emphasis).
In view of the decision of the three Judge Bench of the Supreme Court in Upkar Singh (24 supra) which approved the principle spelt out in the earlier decision in Kari Choudhary (25 supra), the legal position must be considered as established that where there are rival versions in respect of the same episode, it is not only legitimate but necessary that the information must take the shape of two different FIRs and the investigation must be pursued in respect of both the cases.
In the context of the rival positions adopted in this batch of cases i.e., on behalf of the petitioners and per contra on behalf of the State and the A.P. Police Officers Association, we are required to consider a related aspect. We also notice and place on record the fact that the A.P. Police Standing Orders, [S.O. 416 (8) instructs (the recording officer under Sec. 154 (1) Cr. P.C.] to “Register a case even if the information is from the accused.” The revised A.P. Police Manual was approved in G.O.Ms.No. 201, Home (Police. C) Department dated 08-09-2001.
(C) Whether a FIR must be registered against police officer(s) involved in an operation which has resulted in homicide(s), claimed to be in self-defense:
As we have already noticed and recorded, the first information (in cases involving an encounter between police and civilians alleged to be Maoists/Naxalites/Extremists), to the officer in charge of a police station is normally, if not invariably, by a police officer. The information is also to the effect that when the police approached the conclave of civilians and warned them to surrender they opened fire. In the resultant firing by the police (asserted to be in self-defence) the casuality(s) occurred including death(s).
The learned Advocate General, on behalf of the State and Sri Lalit the learned Senior Counsel on behalf of the 10th respondent (in W.P.15419/06) contend that in view of the provisions of Sec. 6 read with the General Exceptions (set out in Chapter IV, in particular Secs. 96 to 106 IPC), the first information conveyed to the officer in charge of the police station cannot lawfully be considered as information relating to commission of any offence let alone a cognizable offence. It is additionally the contention on behalf of the AP Police Officers Association that the provisions of Secs. 129 to 132 (in Chapter X Cr.P.C. - relating to maintenance of public order and tranquility) and the provisions of Secs. 149 and 152 Cr.P.C. (Chapter XI Cr.P.C. - relating to preventive action of the police), authorize use of force by police officers to disburse mobs and unlawful assembly; to interpose themselves between persons contemplating or actually committing offences and the rest of the society; afford protection to police officers when force is exercised under the provisions of Secs. 129 to 131 Cr.P.C. (Sec. 132 Cr.P.C.); and even where the employment of force in such situation results in death(s). Sec. 151 Cr.P.C. authorizes a police officer to arrest any person upon knowledge of a design to commit any cognizable offence, even without an order from a Magistrate and without a warrant. Sec.46 Cr.P.C. (Chapter IV) authorizes the use of all means necessary to affect an arrest including to the extent of causing the death of a person. The use of force, even lethal force by police officers, is thus legislatively sanctioned, contends the State.
We will now consider the above proposition.
Section 6 IPC (Chapter II – the General Explanations) reads:
6. Definitions in the Code to be understood subject to exceptions: -- Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.
On a true and fair construction of the provisions of Sec. 6 IPC, considered in the context of the legislative scheme qua the several provisions of the IPC, it is apparent that Sec. 6 explicates a convenient legislative formula to avoid reproduction of lengthy exceptions in the description of the each of the several offences. Consequently all offences enumerated in the Indian Penal Code must be read subject to the provisions in Chapter IV relating to General Exceptions (Secs. 76 to 106 IPC). Therefore, when an act falls within any of these exceptions, by virtue of the provisions of Sec.6, the accused must be accorded the benefit of the appropriate General Exception even though such exception is not specifically indicated in the description of the offence elsewhere in the IPC.
In Subodh Tiwari vs State of Assam ([26][26]) the Gauhati High Court held that in view of the provisions of Sec.6 the provisions of Sec.299 and 302 IPC are also to be understood subject to the General Exceptions though the exceptions are not specifically enumerated in Secs. 299 to 302 IPC. Thus the High Court held, even when the acts of an accused may amount to culpable homicide amounting to murder, the court is statutorily bound to consider the facts and circumstances to ascertain whether any of the provisions contained in the General Exceptions is attracted. On the material before the court if the court concludes that the accused had the right of private defence, it should hold that the act of the accused did not amount to an offence.
In State of Manipur vs C.T.Sangam ([27][27]) the High Court held that in view of the provisions of Sec.6 there is no imperative duty or obligation on an accused to take up a specific plea or set up a defence falling within any of the General Exceptions. If from the entire evidence on record, a case is seen to be covered by the provisions contained in Chapter IV IPC, the court is bound to take that into consideration.
In Seriyal Udayar vs State of Tamil Nadu ([28][28]) (per Oza,J) the Supreme Court observed that even if on the basis of the material on record the right of private defence of the accused-appellant is not established, still the material produced in cross-examination and the circumstances discussed (by the court) do indicate that the incident might have happened in the manner in which it was suggested by the accused appellant and therefore it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt, the accused is entitled to acquittal.
It is therefore apparent that the provisions of the General Exceptions are implicated into the description and definition of all offences enumerated in the IPC. It is consequently the duty of all executors of the legislative obligations under the Penal Code, the recording officer in charge of a police station, the investigating officer or the appropriate Magistrate or Court of Session as the case may be, to consider every offence defined and sanctioned by the provisions of the IPC in the light and context of the General Exceptions set out in Chapter IV IPC.
Sec.46 Cr.P.C. deals with how an arrest could be made and cognate aspects. Sec.43 authorizes any private person to arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, so however that such private person (making the arrest) must without unnecessary delay make over or cause to be made over the person so arrested to a police officer or to take such arrested person to the nearest police station. Sec. 46(1) recognizes that an arrest could be made by a police officer or other person. Sec. 46(2) authorizes not only a police officer but other person as well, to use all means necessary to affect the arrest, if such person forcibly resists the endeavor to arrest him or attempts to evade the arrest. Sec. 46(3) clarifies that the provisions of Sec. 46 do not authorize the causing of death of a person who is not accused of an offence punishable with death or with imprisonment for life.
In Romesh Chandra Mehta vs State of W.B. ([29][29]) the court clarified when a person could be said to be accused of an offence. In the context of the right/immunity against testimonial compulsion under Art. 22(1) of the Constitution, the court in Romesh Chandra Mehta observed: Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or where a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. This passage was quoted with approval and the principle reiterated by Krishna Iyer, J in Nandini Satpathy vs P.L.Dani and Anr([30][30]). We see no reason to import an artificial or an extravagant interpretation to the expression accused in Sec. 46(3) Cr.P.C. Thus, [subject to the substantive interpretation and analysis hereinafter in the judgment], where the person whose death is caused is not formally an accused (as pointed out in R.C. Mehta and Nandini Satpathy), recourse to Sec. 46(3) is unavailable.
In the scheme of the provisions of the Cr.P.C., in particular in Chapter V (wherein Sec.46 occurs), it is apparent that the powers of arrest may in the specified circumstances be exercised not only by law enforcement officers but by civilians as well. The provisions of Sec. 46 Cr.P.C., occurring in a procedural code do not, expressly nor by any interpretive compulsion constitute a substantive Legislative authorization to police officers and civilians as well to use lethal force to the extent of causing death. The provisions of Sec. 46(3) must be understood as enjoining a prohibition that in making an arrest (whether by a police officer or any other person), death shall not be caused of the person who is not accused of an offence punishable with death or imprisonment for life. It is not possible to consider the provisions of Sec. 46(2) and (3) as authorizing the use of lethal force without such conduct being susceptible to scrutiny for conformity with the criminal prohibitions enjoined in the IPC considered together with the General Exceptions set out in Chapter IV IPC. Where the person whose death is caused, is not accused of an offence punishable with death or imprisonment for life, the provisions of Sec. 46(3) Cr.P.C. are per se inapplicable.
It is significant that Sec.46 Cr.P.C. occurs in a procedural code. It cannot (on text or legislative context) be interpreted as a substantive legislative authorization of an unlimited and uncanalised power to cause death. Sub-Sec. 2 of Sec. 46 Cr.P.C provides that a police officer or other person may use all means necessary to affect the arrest. Clearly therefore all necessary means are available only to effect arrest. The power to employ all necessary means, the Legislature has consciously restricted to the object of affecting the arrest. If the choice in a given circumstance is thus between escape and certain causing of death, there appears no justification in law to cause death merely to prevent escape. Sub-lethal employment of force to prevent escape, in our considered view, may however be employed; as such non-lethal employment of force ensures arrest of the misdemeanant while tending to avoid his certain death. We consider this to be proper interpretation of Sec.46(2) and (3) of Cr.P.C. If Sec. 46(3) Cr.P.C. is otherwise construed, as authorizing conscious and deliberate use of lethal force clearly intending the causing of death where that is the only means of preventing escape, on death caused that would not lead to arrest. Sub-Secs. (2) and (3) of Sec. 46 Cr.P.C. are both in the context of effecting arrest. Proportionality of the force employed while proceeding to arrest a misdemeanant is thus a very relevant circumstance in ascertaining the culpability or otherwise of the conduct in the circumstances of arrest.
There is another incongruous interpretive consequence in construing Sec. 46 (3) Cr.P.C as an independent, comprehensive and substantive legislative authorization for use of lethal force; overarching the provisions of the IPC and excluding/eclipsing/avoiding the contouring standards for legitimate employment/applicability of self-defense justifications under Chapter IV IPC. If Sec. 46 Cr.P.C is a dominant and compendious legislative prescription, would a self-defense justification (under Chapter IV IPC) be available where lethal aggression is presented by a person not accused of an offence punishable with death or with imprisonment for life!
We therefore consider the appropriate interpretation of Sec. 46(3) Cr.P.C. to be, in elucidation of the contours of the provisions of sub-sec. (2), as authorizing the use of lethal force only where a potential arrestee (who is accused and therefore formally arrayed as such and not merely suspected, of an offence punishable with death or imprisonment for life), conducts himself in a manner leading to a reasonable belief of an imminent apprehension of danger to the life and person of the police officer or other person proceeding to effect the arrest.
In any event while on behalf of the State and the AP Police Officers’ Association the provisions of Sec. 46(3) are referred to in passing, the substantive and empirical stand of these respondents is that the conduct of the police officer(s) falls within the matrix of self-defence justification (a General Exception).
Sec. 129(1) Cr.P.C. authorizes inter alia a police officer to command an unlawful assembly or an assembly of 5 or more persons likely to cause a disturbance of the public peace to disperse and enjoins a corollary duty on the members of such assembly to disperse in conformity with such command. Sec. 129(2) authorizes the use of force to execute the command to disperse and to arrest and confine persons who form part of such assembly, to effectuate the dispersal of such assembly. Sec. 130 authorizes the Executive Magistrate to requisition assistance of the Armed Forces to disperse an unlawful assembly or an assembly of 5 or more persons likely to cause disturbance of the public peace. It must be noticed that Sec.133 enjoins that every such officer of the armed forces, as requisitioned, shall use as little force, and do as little injury to the person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.
Sec. 132(1) Cr.P.C. mandates sanction by the appropriate Government as the condition precedent to the prosecution in a criminal court of any person for any act purporting to be done u/Secs. 129 to 131 Cr.P.C. The expression nothing is an offence in sub-sec.(2) of Sec. 132 Cr.P.C. is applicable where the conduct of an Executive Magistrate, a Police Officer, a person or an officer of the Armed Forces acting u/Secs. 129 to 131 Cr.P.C. is in good faith. It is clear from the provisions of Sec. 132 Cr.P.C. that in exercise of the powers conferred, to disperse an unlawful assembly or an assembly or five or more persons likely to cause disturbance of the public peace, there is no blanket immunity from prosecution. If the conduct of a law enforcement officer u/Secs. 129 to 131 Cr.P.C. were intended to be beyond the pale of criminality irrespective whether the force used was unreasonable or in bad faith, there is no occasion for providing for sanction as a condition precedent to the prosecution. The provision for sanction is a safeguard against frivolous prosecution. Wherever therefore there is a complaint of excessive or disproportionate use of force or unwarranted causing of injury to person and property and if such complaint constitutes information as to the commission of a cognizable offence, the complaint must be recorded and registered as FIR u/Sec. 154(1) Cr.P.C. However in view of the provisions of Sec. 132(1) Cr.P.C. sanction by the appropriate Government would be necessary for institution of a prosecution in a criminal court.
Sections 149, 151 and 152 enjoin an obligation on a police officer to interpose to prevent commission of any cognizable offence to arrest a person on knowledge of a design by such person to commit a cognizable offence; and to interpose to prevent any injury attempted to be committed in the police officer’s view respecting public property or other specified public land marks, etc.
None of the provisions (Secs. 46, 129 to 132, 149, 151 and 152) per se authorize the use of lethal force without accountability nor do they, on a true and fair construction of these provisions, carve out an architecture of exceptions beyond, distinct or apart from the general or specific exceptions enumerated in the substantive provisions, of the IPC.
The substantive case of the State and the of the AP Police Officers Association rests on recourse to private defence justification. We therefore consider the generic and normative architecture of defences in criminal law. We embark on a detailed analysis of the area as the State very emphatically assumes that even investigatory scrutiny (into police conduct in cases of death(s) resulting from encounter operations) would undermine the morale of the police forces and is not warranted by law.
Anatomy of Defences in Criminal Law :-
The substantive provisions of Criminal Law indicate a general, internal structure of offences. These are:
(a) An offence is committed where an actor satisfies all the elements contained in the definition of that offence. There are 2 defining facets to an offence:
(i) Actus reus elements or the objective criteria of an offence which may consist of the conduct of the actor, the circumstances in which the conduct takes place and the results consequent on the conduct; and
(ii) The mens rea or the culpability element such as purpose or intention, knowledge, recklessness, negligence, or lack of culpability with regard to the engaging in the conduct, causing the result, or being aware of the circumstances specified in the objective element(s). Every offence must contain at least one objective element (actus reus element) consisting of the conduct of the actor. Every actus reus element must have a corresponding mens rea element, which however may be different for each of the objective elements of the same offence. Sometimes, a culpability element may be required without a corresponding objective element – see Sir Mathew Hale – Historia Placitorum Coronae (London-1736).
General:
Defenses in Criminal Law are accommodations of complex notions of fairness and morality homogenized by demands of efficiency and utility. Defenses, in a generic sense are a set of identifiable conditions or circumstances that may prevent conviction for an offence. There appear in contemporaneous legal systems, a bewildering array of such possible bars to conviction. These include alibi; amnesia; authority to maintain law, order and safety of the community; chromosomal abnormality; consent; custodial authority; defense of habitation; defense of others; of property; de minimus infractions; diplomatic immunity; domestic or special responsibility; double jeopardy; duress; entrapment; executive immunity; extreme emotional disturbance, hypnotism; impaired consciousness; impossibility; incompetence; insanity; intoxication; involuntary act defences; judicial authority; judicial immunity; justification; law enforcement authority; legislative immunity; medical authority; mental illness apart from insanity; military orders (lawful or otherwise); mistake (of fact and sometimes of law); necessity; plea bargained immunity; provocation; public duty authority; reflex action; renunciation; self-defense; Statute of limitations; testimonial immunity and the like – see: Paul H. Robinson – Criminal Law Defenses: A systematic Analysis([31][31]).
A defense in Criminal Law is a set of identifiable conditions or circumstances, legislatively prescribed and to an extent nuanced over time by precedential authority, which may prevent conviction for an offence.
Though as already noticed there are apparently a variety of defences which possibly operate as a bar to conviction, the several defences could be categorized conceptually as failure of proof, those that modify the offence, justifications, excuses, and non-exculpatory public policy defences.
In a large number of criminal jurisdictions as in India, no person may be convicted of an offence unless each element of the charged offence is proven beyond reasonable doubt. This is a general prosecutorial burden. Failure of proof defences mean that in view of the defense apparent or adopted, the prosecution is unable to prove all the required elements of the offence, the actus reus, the mens rea, the circumstances, the result elements and the other culpability requirements. Illustrations of defenses involved in failure of proof are mistake (Sec. 79 IPC); intoxication (Sec. 85, 86 IPC); mental illness (Sec. 84 IPC); consent (Sec.87 to 89 IPC); diminished capacity (Sec. 86 IPC).
A modification of offence defense is more than a simple negation of an element of an offence, which applies even where all the elements of offence are satisfied; and is distinguishable from other defenses like self-defense or insanity. In offence modification defenses the accused satisfies all the elements required for culpability but is nevertheless entitled for acquittal. Instances are De minimus infraction (Sec. 95 IPC) or where a parent in a kidnapping case and against the advice of police pays a substantial ransom to the kidnapper of the child (Sec. 81 IPC). The principle underlying the modification of culpability is that while the person has apparently satisfied all the elements of the offence charged he has not in fact caused the harm or evil sought to be prevented by the legislation defining the offence. In a large number of cases defences under this head may not be given a formal expression in the legislation but exist only as accepted rules. A common rule being that the victim of a crime may not be held as an accomplice even though his conduct has in a significant sense aided the commission of the crime. In several jurisdictions the woman involved has an offence modification defense to a charge of abetment to adultery. In India however (Sec. 497 IPC) the wife of the other person is not punishable as an abettor. It is therefore a public policy defense.
Non exculpatory public policy defences include Statute of limitation (Sec. 468 Cr.P.C); double jeopardy (Art. 20(2) of the Constitution r/w Sec. 300 Cr.P.C.); diplomatic immunity; testimonial immunity [Art. 20(3) of the Constitution]; plea bargained immunity (Chpt. XXI A, Cr.P.C.); Judicial, Legislative and Executive immunity (Sec. 77 and 78 IPC. Art. 361(2) and (3) of the Constitution); incompetence defenses (Sec. 82 and 83 IPC).
Defenses of this class are not based on the lack of culpability of the actor. They are pure public policy arrangements. The immunity from conviction flows not on account of established non-culpability of the actor or the innocence of the defendant but on account of the countervailing public policy interests recognized, accommodated and provided by the legislature.
Justification Defenses:
In justification defenses the offence caused by the justified behavior remains a legally recognized harm. Excusing conditions as defense constitute part of justification defenses and are available so long as the condition has been caused by a disability, transient or permanent and is present at the time of the offence. Under the special justifying circumstances however that harm is outweighed by the need to avoid a greater harm or to further a larger societal interest. Self-defense or defensive force justifications are all based on a threat in response to which the defensive force is justified. They are often distinguished by one another by the nature of the interest threatened. Statutes too often make special alterations or exceptions to the basic principle of defensive force justification depending on the interests threatened. The general exceptions enumerated in Sections 96 to 106 in Chpt. IV of the IPC fall within this category of defences.
Public authority defences (Sec. 46(3) Cr.P.C.) unlike defensive force justifications need not always be triggered by a threat. Here the actor (an official or even a private individual) must be protecting or furthering a legally recognized interest. But even here the culpability for the presumptive criminal conduct/act is avoided only by recourse to established defenses.
All justifying defences have a similar architecture viz., triggering conditions, which permit a necessary and proportional response. Triggering conditions are the circumstances that must exist before the perpetrator will be eligible to act under a justification. The aggressor must present a threat of unjustified harm to the protected interest. The triggering conditions of a justification defense do not however in themselves provide the privilege to act without restriction. In this category all defences for a successful claim of justification to act must satisfy two requirements (a) it must be necessary to protect and (b) must be a proportional response viz., that the action must be taken only when and to the extent necessary to protect or further, the interest at stake. The inherent proportionality requirement normatively defines the maximum limit of the harm that may be used in protection or furtherance of an interest (Sec. 97 r/w 99 to 106 IPC).
A justification defense provides exculpation for conduct that remains generally criminalized. Justified conduct causes a legally recognized harm or evil and remains generally condemned and prohibited. It is tolerated only when by infliction of the intermediate harm or evil, a greater societal harm is avoided or benefit gained.
While all defenses have the effect of saving the accused from some or all of the punishment he would otherwise receive, only justification defenses achieve this on the ground that the conduct in question was in fact legally permissible. Justifications, along with criminal prohibitions, set the boundary between permissible and criminally prohibited conduct.
There appear to be three (3) distinctive features of justification defenses that distinguish and mark them out as more than mere exceptions to criminal prohibitions:
(i) While (criminal) prohibitions are defined in terms of prohibited means, justifications appear to be set out in terms of preferred ends; criminal law identifies conduct for prohibition in terms of the means employed – killing a human being, or taking property without consent, irrespective of how venal or noble the ends might be for doing so – expressed in the principle - motive is not an essential element of a crime but evidence of motive is admissible since it is relevant as a circumstance tending to prove the commission of an offence – KENNY ([32][32]) . Justifications however are invariably defined in terms of the ends but do not necessarily specify the particular means by which to accomplish those ends e.g.; a person is justified in doing whatever is necessary (within proportionality limits) for the end of defending oneself;
(ii) The other distinguishing feature between mere exceptions to offence definitions and justification defenses is their fault standard. While particular prohibitions (including exceptions built into them) are subject to a variety of different fault standards, justifications are almost always subject to the same independent fault standard, of reasonable belief; thus if the justification of self defense were to be considered as incorporated into the definition of the offence of murder, this would significantly change the scope of criminal liability; someone with an honest though unreasonable belief that deadly force was necessary to protect his own life would be convicted of murder; but if non self-defense is considered the element of the offence (of murder), then any honest belief that deadly force was necessary and proportionate to the threat, however unreasonable, would suffice to negate mens rea and ensure an acquittal of the accused.
(iii) The third feature of justification defenses, distinguished from mere legislated exceptions to criminal prohibitions is that criminal law does not simply spell out justification defenses as permissions to do what is generally prohibited. Law recognizes that when certain individuals, with the requisite legal power, validly decide that their conduct is justified under the circumstances, that decision is legally effective, that is when an individual decides that it is justified to do something that is generally prohibited, that decision brings about a change in what the individual is legally permitted to do. It is required to notice that this principle applies where a magistrate, exercising his legal power decides to issue a warrant as part of a lawful search which otherwise would constitute trespass; a law enforcement officer decides when a citizen is justified in doing things that are generally prohibited in order to assist them in pursuing important law enforcement purposes; a private fiduciary such as a parent decides that it is justified under what circumstances to use force to discipline their children, or even when an ordinary citizen decides when it is justified to use lethal force in their own defense.
It is the importance of a valid decision by the appropriate individual that gives meaning to the crucial distinction between lawful activity including police activity and vigilantism. This is because the justification provisions in criminal legislation do not set out general permissions to engage in socially worthwhile conduct, however that conduct may be defined; on the other hand justification defenses recognize that some people (not others) have the legal power to take decisions. [See generally - Malcolm Thorburn – Justifications, Powers, and Authority ([33][33])].
Thorburn categorizes justification defenses applicants into three generic groups:
(a) Private fiduciaries: Such as parents or those acting in loco parentis, who are required to take decisions as to parental use of discipline force; or a fiduciary relationship arising through unilateral undertaking or agreement as in the case of a doctor providing invasive emergency medical treatment or by means of bilateral agreement for medical treatment in non-emergency situations (Sec. 88, 92 IPC). In such situations criminal law assumes conduct that is otherwise criminal as justified because of the exercise of legal power by the decision maker. The crucial element in the justification of such conduct is the valid decision by an authorized individual who is assumed to exercise lawful decisional power. Normally fiduciary relationships arise qua bilateral arrangements on consent. There are also a great many fiduciary relationships where the fiduciary wields decision-making power over the affairs of a beneficiary who never consented to such an arrangement. In all these cases the law entrusts decision-making power over the affairs of a beneficiary’s affairs to a fiduciary since the beneficiary is incompetent to make the decisions. This is true both of fiduciary relations that arise by operation of law (e.g. as between natural parent and the child) and those that arise by unilateral undertaking (between an adoptive parent and a child, or between a doctor and an unconscious patient in need of emergent medical care) (Sec. 89 IPC). The validity of the decision is however measured by fiduciary standards, i.e. duty to exercise reasonable care and to act in the beneficiary’s interest and not his own;
(b) Public officials: While private fiduciaries are entitled to make decisions about justified interferences with the interests of their specific charges, public officials are entitled to make decisions about when it is justified to interfere with the interests of a whole lot of other people as well. A police officer may determine that it is appropriate for him to arrest any person within his jurisdiction without a warrant under appropriate circumstances. This class of justification defenses though limited to a class of public officials who may exercise the relevant legal power i.e., specific state officials – the class of persons whose interests are subject to that decision making power is considerably broader, usually including anyone within the decision maker’s jurisdiction.
Without available justification defenses public Law enforcement officials would be unable to deliver upon their function. Markus Dirk Drubber (A political Theory of Criminal Law: Anatomy and the Legitimacy of State Punishment) ([34][34]), perceptively observes that a list of police functions looks like list of serious criminal offenses: Drubber points out that The statutory threat of punishment looks suspiciously like ‘menacing’, wiretapping like ‘eavesdropping’, entrapment like ‘solicitation’ (or even conspiracy), searching a suspect’s house like ‘trespass’, searching or frisking the suspect herself like ‘assault’, arresting her like ’battery’, seizing her property like ‘larceny’, a drug bust like ‘possession of narcotics’ (with or without intent to distribute), indicting or convicting like ‘false imprisonment’, and executing her like ‘homicide’ (murder to be precise).
Law also recognizes that public (police) officials are entitled to effect arrests, i.e. are justified in doing what would otherwise constitute an assault.
Law assumes that there is a quasi-fiduciary nature of relationship between public officials and the citizenry. [Robert Flannigan, The Fiduciary Obligation ([35][35]); Evan J. Criddle, Fiduciary Foundations of Administrative Law ([36][36])]; and
(c) Ordinary citizens with Public Powers: Situations occur when ordinary/private citizens exercise decision making when caught in extraordinary situations, such as self-defense (broadly including not only defense of self but also defense of property and property of others), citizen’s arrest, and (where the defense exists) lesser evils. Normally exercise of public powers by citizens caught in extraordinary situations arises because other, better qualified (i.e. the relevant class of public officials), are temporarily unavailable. Private citizens do not normatively have a standing power to make decisions regarding arrest without a warrant, lesser evils and the like. It is a juridically recognized and a generally accepted matter of criminal law doctrine that private citizens do not have standing power to make these classes of decisions; rather, they are entitled to decide when it is appropriate to use force in self-defense, to prevent a greater evil or to effect an arrest only where recourse to State officials is impracticable. The authority of private individuals to exercise public power is however recognized in the matrix of the larger enterprise of criminal law as intrinsic to a temporal imminence of society requirement coupled with the absence of a lawful alternative course of action, i.e. recourse to the authorized public authority. Thus the decision making authority of ordinary citizens is derived entirely from their role as stand-ins for public officials who are unable to make those decisions themselves.
The source of ordinary citizen’s legal power to decide when it is permissible to violate criminal prohibitions in order to defend oneself, to effect an arrest, or to prevent a breach of peace, or to prevent a greater evil is clearly seen to be the derivative of the power of frontline State officials such as police officers to make such decisions.
Law subjects private fiduciaries, public officials and private citizens who exercise decision making powers affecting for instance the life and liberties of others in circumstances such as citizen’s arrest or private defense justifications to substantially similar standards of scrutiny. A police officer could claim immunity from investigatory process or in appropriate cases prosecution only on legislatively authorized/mandated immunity and not on specious grounds of vague public interest. All claims of self-defense justifications whether by private individuals or by members of law enforcement must in law be investigated and tried according to similar, well-defined principles and on vigorous patterns of established reasoning.
When required to determine whether a police officer was justified in carrying out a search, an arrest or in killing an individual on the claim of self defense, the State (the investigating officer) and at the appropriate stage the courts are required to pursue the same sort of reasoning as they do when asked to determine whether a private actor was justified in carrying out conduct that a private fiduciary had deemed to be justified and not a distinct or special standard.
A theoretical assumption of a neat divide and clearly apparent classification between public officials and private citizens does not hold up in contemporaneous practice either. At an accelerating pace governments are privatizing services that were once considered the non-derogable core of governmental activity. Even where governments are not privatizing such services, they are often retreating from the provision of these services, leaving the private sector to provide them. This phenomenon is emphatically illustrated in the steady growth of the private security industry across the developed and developing world. In all such cases putatively private citizens – whether they be private security guards, private prison employees, or mercenaries – engage in conduct that is generally prohibited, claiming criminal justifications in their defense.
The functional paradigm of law enforcement officials: Police officials are endowed with a mantle of sovereign authority by the State to enforce the laws and protect people. They possess awesome powers. They perform their duties under hazardous conditions and ever with the vigilant public and now the media eye upon their performance. Police officers are permitted only a margin of error in judgment under conditions that impose high degrees of physical and mental stress. They function as field soldiers who enforce the laws and preliminarily determine the guilt of those who are perceived to have transgressed the law. They inherit a lawful grant of power to arrest and detain individuals until the court, at the appropriate level in the judicial branch (another organ of the State) passes a final judgment of guilt for each alleged offender. Police officers also have the authority to use deadly/lethal force in special circumstances legislatively conditioned and authorized that warrant employment of such level/degree of force. The laws structuring a constitutional government clearly, and police policies too presumptively, limit an officer’s ability to use unrestricted force.
Under general principles of criminal law, although an officer having the right to arrest a misdemeanant may use such force as is necessary to effect his or her purpose, provided it is not excessive, an officer has no right, except in self-defense to shoot or kill a misdemeanant in attempting to arrest him/her ([37][37]).
Pragmatic, philosophical and moral dilemmas encompass the use of lethal force by law enforcement officials while attempting to arrest/apprehend suspected criminals. The problematic and the conundrum lies in determining whether peace officers, entrusted to secure persons for judicial proceedings may hand down the unappealable judgment of death on the street even before guilt is determined at trial.
As Sir Robert Mark, the Commissioner of Metropolitan Police, London pointed out ([38][38]), the police discharge the communal will, not that of any government minister, mayor or other public official, or that of any political party, whilst remaining fully accountable to the community for what they do or fail to do---- We are taught at the outset of our police careers that obedience to orders affords no defense for wrongdoing or misuse of authority.
Elsewhere in the work (page 81), Sir Mark writes: Attempts to achieve political objectives by coercion or violence are, of course, unlawful and in a sophisticated society ought to be unnecessary but to counter them by excessive violence may in practice go far to help militants to achieve their aims or allow them a degree of public sympathy or support which they would not otherwise receive. The police therefore, both as a matter of law and strategy, adhere strictly to the doctrine of minimum force, notwithstanding that this may involve acceptance of minor casualties and harassment. This does not, of course, imply willingness to allow militant demonstrators their way, but to deny them success by the least violent means.
Contours of the right of private defense under the IPC:
Defensive force/self-defence justifications and the contours of this general exception to criminality are spelt out in Sections 96 to 106 of the IPC. In particular, Section 99 IPC explicates the non-derogable principle that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. This doctrine of proportionality thus overarches the entire spectrum of the right of private defence. The provisions of Section 100 IPC contour the right of private defence of the body extending to causing of death; the provisions of Section 101 to causing any harm other than death; the provisions of Section 103 the right of private defence of property extending to the causing of death; and the provisions of Section 104 contour the right of private defence extending to the causing of any harm other than death where the offence, the committing of which, or the attempting to commit which, be theft, mischief or criminal trespass , other than of the nature described in Section 103. Sections 96 and 97 are preambular in scope; Section 98 enumerates the right of private defence against the conduct of a person of unsound mind and other disabilities that would otherwise constitute the conduct of such person as a non-offence. Section 102 defines the point of commencement and continuance of the right of private defence of the body, while Section 105 defines the point of commencement and continuance of the right of private defence of the property. Section 106 spells out the right of private defence against deadly assault which reasonably causes the apprehension of death extending to causing harm to an innocent person if the person exercising the right of private defence be so situated that he cannot effectively exercise that right without risk of harm to an innocent person.
Our Courts (in complementarity with the jurisprudence of other civilized legal systems), have consistently taken the view that the doctrine of private defence inheres the necessary corollary that the violence, which a person defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The Courts have further held that the exercise of right of private defence must never be vindictive or malicious –Jai Dev and another v. State of Punjab ([39][39]).
Again in State of U.P. v. Ram Swarup and another([40][40]) (Per: Chandrachud, J), the Apex Court reiterated the principle thus (paragraph 14 of the report):
The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing.
The Court reiterated that the extent of harm that may be lawfully inflicted in self-defence is limited. It is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted, that is, the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted.
Enumerating the contours of the burden of proof enjoined by Section 105 of the Evidence Act in the context of the general exceptions in Sections 96 to 106 IPC, the Apex Court in Ram Swarup (40 supra) and after referring with approval to earlier decisions in K.M. Nanavati v. State of Maharashtra([41][41]); Dahyabhai Chhaganbhai Thakker v. State of Gujarat([42][42]); Munshi Ram v. Delhi Administration([43][43]); and the judgment of the Allahabad High Court in Rishikesh Singh v. State ([44][44]), held that the burden which rests on the accused to prove that any of the general exceptions are attracted does not absolve the prosecution from discharging its initial burden and the primary burden never shifts except in cases where a statute displaces the presumption of innocence. The evidence on record though insufficient to establish the exception, may be sufficient to negate one or more of the ingredients of the offence i.e., the accused may fail to establish affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under Section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. The Court also clarified that the burden on the accused to prove the exception is not of the same rigor as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea.
The above principles were reiterated in Yogendra Morarji v. State of Gujarat([45][45]).
In Kulwant Singh v. State of Punjab([46][46]) (Per: S.B. Sinha, J), the Apex Court reiterated the principle that the right of private defense is preventive and not retributive in nature and that the right is available to a person who is suddenly confronted with immediate necessity of averting an impending danger which is not of his own creation and that whenever a right of private defense is claimed, it must be judged from the nature of occurrence, the circumstances in which it had occurred and whether the person claiming such right has acted legitimately. Attending circumstances would be relevant for judging the same.
In State of M.P. v. Ramesh([47][47]) (Per: Arijit Pasayat, J), the Apex Court while reiterating the established principles pointed out that in order to find whether the right of private defense is available to an accused, the entire incident must be examined with care and viewed in its proper setting. To claim a right of private defense, extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The Court also held that in order to find out whether the right of private defense is available, the injuries received by the accused, the imminent threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. The Court reiterated the important ingredient of the doctrine of defence justification viz., that it is essentially a defensive right and is available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of a retribution, expected to repel unlawful aggression and not as retaliatory measure. It is not a plea or a devise whereby an attack may be a pretence for killing. The right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived, ruled the Court in Ramesh (47supra).
In V. Subramani & another v. State of T.N.([48][48]) (Per: Arijit Pasayat, J), the Court pointed out that whether in a particular set of circumstances a person legitimately acted in exercise of right of private defense is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such question can be laid down. All the surrounding circumstances must be considered. The Court also pointed out that the right (private defense) commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of danger to the body continues. The Court reiterated that in order to determine whether the right of private defence is available or not, the injury received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
In Bishna v. State of W.B.([49][49]) (Per: S.B. Sinha, J) the doctrine of the right of private defense was revisited. The Court reiterated the principle that a right of private defence cannot be claimed when the accused are aggressors, when they go to the complainant’s house well-prepared for a fight and provoke the complainant party resulting in quarrel and taking undue advantage that the deceased was unarmed causing his death; and also that where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding of the attack or forestalling the reasonable apprehension of grave injury from the side of the accused.
These principles were reiterated in Laxman Singh v. Poonam Singh & Ors.([50][50]); and in Triloki Nath vs State of U.P. ([51][51]).
The decisions considered above are all in the context of the applicable principles which should govern decision making by the Courts in cases where an accused pleads a self-defense justification or where circumstances involving application of the General Exceptions in Chapter-IV IPC are implicated, in the facts and circumstances of the case.
Nevertheless, the principles enunciated in the precedents with regard to the circumstances, the restrictions and the limitations on the legitimate exercise of the right of private defense apply to the stage of recording of information (conveying information as to an act of homicide, by the perpetrator of such homicide while asserting that the homicide was in consequence of the exercise of right of private defense). These principles equally apply and shall inform the investigatorial process into cognizable offences, under the provisions of the Cr.P.C., as they do to the trial on a charge of culpable homicide where the accused pleads a self-defense justification for the act.
The right of self-defense is based on necessity and without such necessity the right to resort thereto does not exist ([52][52]). In Munney Khan v. State of M.P.([53][53]), the Supreme Court explained the right of private defense as being essentially a defensive right circumscribed by the statute available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose. This right is available against an offence and, therefore, where an act is done in the exercise of right of private defense, such an act cannot give rise to any private defense in favour of the aggressor in return. This would be so even if the person exercising the right of private defense has the better of his aggressor provided he does not exceed his right, because the moment he exceeds it, he commits an offence. If there is no initial right of private defense then there can hardly be any question of exceeding that right. An aggressor cannot claim this right nor can the right be used as a shield to justify an act of aggression. The quantum, nature and duration of the force that is legitimate in the exercise of the right of private defense depends upon the peculiar circumstances of each case and that is a matter for investigation and ascertainment of the surrounding facts and relevant circumstances, explained the Court in Munney Khan.
To reinforce the contention [that on the first information conveyed (by a Police Officer) in cases involving the death of civilian(s) in a police encounter, no crime need be registered], the learned Advocate General places reliance on the judgment in Costao Fernandes vs State at the instance of D.S.P., CBI, Bombay ([54][54]). Hansaria, J (G.N.Ray,J concurring) quashed the prosecution against the appellant. The appellant – a Preventive Officer of the Customs Department, while on duty to apprehend smuggling activities saw the deceased speeding away with smuggled gold worth rupees 8 crores in a car. The appellant chased the deceased on a motorcycle and attempted to stop the vehicle. The deceased resisted and in the ensuring scuffle the deceased inflicted as many as 22 injuries including abrasions and incised wounds at various parts of the appellant’s body. There was evidence on record that the appellant was trying to remove the ignition key of the vehicle being driven by the deceased. The appellant was prosecuted for the offence u/Sec. 302 IPC for having caused the death in the process of exercising his right of private defense. Before the Supreme Court it was contended on behalf of the respondent-State that if a Customs Officer attempting to stop a vehicle involved in smuggling activities had faced resistance from the driver or occupant of the vehicle which had necessitated taking recourse to right of private defense and in the process, the driver or the occupant had suffered injuries which caused death, the officer concerned cannot claim protection (at the threshold) for interdicting the criminal trial, by recourse to the provisions of Sec. 155 of the Customs Act, 1962 (the Act). According to the State the officer must face the criminal trial where the question of right of private defence, if raised, is to be considered in the light of the evidence adduced in the case. Sec. 106 of the Act empowers the appropriate officer, if he has a reason to believe that any aircraft, vehicle or animal … is being, or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, to stop any such vehicle, animal or vessel or in the case of an aircraft, compel it to land; to search the air craft, vehicle or vessel; to break open the lock of any door or package, if the keys are withheld; and generally to order – compel a vessel to stop or the aircraft to land; if it fails to do so to give a chase and give a signal for the vessel or air craft to stop or land, as the case may be; and if it fails to do so, to fire upon. Sec.106(2)(b) also empowers the appropriate officer to use all lawful means for stopping any vehicle or animal and where such means fail to fire open such vehicle or animal. Sec.155 of the Act enjoins, inter alia, that no prosecution shall lie against any officer of the Government for anything done or intended to be done in good faith, in pursuance of the Act, the Rules or the Regulations. On behalf of the State it was contended that the appellant’s injuries were self-inflicted, a contention which was rejected by the Supreme Court on an analysis of the material on record including the wounds certificate. While quashing the prosecution, the apex court held that the very purpose of Sec.106 of the Act would be frustrated, if a Customs Officer in exercise of his powers and duties is not permitted to take all consequent action necessary for stopping the conveyance and conducting its search. If in the course of such action it becomes necessary to immobilize the driver or the occupant of a vehicle, then the officer has ample authority u/Sec.106. In view of the provisions of Sections 106 and 155 of the Act and the peculiar facts and circumstances of the case, the court held that the facts, prima facie, support the appellant’s claim for protection u/Sec. 155 of the Act and it would not be proper to disallow such protection at the threshold and subject the appellant to a full-fledged trial on the charge of murder.
It requires to be noticed that in Costao Fernandes (54 supra) while quashing the criminal proceedings against the appellant the court (per the concurring opinion of Ray,J) delineated the caution that must be exercised (para-4 of the report):
4. It is, however, necessary to indicate a note of caution in the matter of consideration of protection against criminal liability if sought for under Section 155 of the Customs Act at the threshold of the Criminal trial. Since such immunity is claimed at the threshold, the Court should carefully scrutinize the relevant facts and materials placed before it for the purpose of finding (a) that the concerned Officer was authorised to act for prevention of smuggling activity and in fact had bona fide acted in exercise o his duties and functions in preventing the smuggling activities being carried or about to be carried (b) there are prima facie materials to indicate that such officer had honestly attempted to stop the conveyance for effecting search of the same (c) that such an attempt to stop the vehicle was sought to be frustrated either by not stopping the vehicle or by attempting to forcibly taking away the vehicle despite attempt by the concerned officer to stop the vehicle and (d)w that recourse to use of force on the driver or occupant of the vehicle was apparently necessary to immobilize the vehicle or to save himself from imminent danger of personal risk. If on consideration of the materials placed before the Court, a possible view can be objectively taken that in discharge of the duties and functions under Section 106 of the Customs Act that a competent Officer had bonafide used force and such use of force is not just a ruse for high handed action on his part which was not at all necessary in the facts of the case but prima facile there is justification for the course of action pleaded by the officer, the Court would give effect to the protection under Section 155 of the Customs Act by dropping the criminal case initiated against the concerned Officer. The facts already on record, some of which have been indicated in the judgment of my learned brother, indicate that the appellant was on official duty as Preventive Officer to look out for smuggling activities at the relevant time and in discharge of his official duties he had chased a speeding Contessa car driven by the deceased in an attempt to stop the car for searching the same. As a matter of fact, he overtook the car and having disclosed his identity asked the deceased to stop the car but when the driver had attempted to flee with the car, he jumped into the same and tried to take out the ignition key in order to stop the vehicle. It has not been revealed that appellant had received various injuries including incised wounds which on the basis of medical report are likely to have been caused at the time when attempt to stop car was made. Such facts prima facie support the appellant's claim for the protection under Section 155 of the Customs of Act to the appellant but subject him to a full fledged trial on a charge of murder by pointing out that it would be open to the appellant to plead for right to private defence in such trial, like any other accused.
In an earlier decision in Bhappa Singh vs Ram Pal Singh and Ors.([55][55]) the officials of the Customs & Excise Department raided a jewellery shop of the appellant. On being attacked, the raiding party fired shots. The appellant lodged a complaint that the members of the raiding party had come to commit dacoity in the jewellery shop. The High Court quashed the complaint. The Supreme Court (three Judges Bench) found from the facts on record that the Customs Department had not gone out to commit dacoity nor had it trespassed but had conducted the raid to find out if any illegal activity was being carried out in the premises. Sec.108 of the Gold (Control) Act 1968 [which is in pari materia, Sec. 155 of the Customs Act 1962) was relied upon by the High Court for quashing the complaint. The Supreme Court concurred with this view. While upholding the judgment of the High Court, the Supreme Court however recorded a note of caution (in para 7 of the report), which we consider appropriate to reproduce:
7. Even though what we have just stated is a general prima facie impression that we have formed at this stage on the materials available to us at present, it may not be possible to come to a conclusive finding about the falsity or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) act, if cases of this type are allowed to be pursued to their logical conclusion, i.e., to that of conviction or acquittal. In this view of the matter we do not feel inclined to upset the impugned order, even though perhaps the matter may have required further evidence before quashing of the complaint could be held to be fully justified. The appeal is accordingly dismissed.
Whether an act (of firing) by Police Officer(s) had caused the death and if so had been caused in circumstances falling within the General Exceptions in Chapter IV IPC, is a mixed question of law and fact. The recording/registering officer under Sec. 154(1) Cr.P.C. cannot be presumed the authority or omniscience to divine the complex law/fact matrix from the information received and at that stage.
The Andhra Pradesh Police Officers’ Association would urge that Section 154 (1) Cr.P.C., on text and principle accommodates a discretion in the recording officer, to consider whether a complaint conveying information as to the commission of a cognizable offence together with the factual narrative indicating a claim to one or more of the general exceptions (in Chapter-IV IPC) requires to be registered as FIR. In view of the provisions of Section 6 IPC the offences enumerated in the Code must be read subject to the provisions of Chapter-IV IPC and therefore contends Sri Uday Lalit (the learned senior counsel, for the 10th respondent), the recording officer acts within his inherent discretion under Section 154 (1) Cr.P.C. in declining to record the information and registering the FIR when the complaint conveys information that facially indicates commission of a cognizable offence but taken together with the general exceptions in Chapter-IV IPC (since the information also claims the benefit of one or more of these exceptions), the information does not convey facts disclosing commission of a cognizable offence and hence does not warrant registering the FIR. It is further contended that to interpret the provisions in Section 154 (1) Cr.P.C. otherwise would lead to disastrous consequences. The elaboration in this regard is that wherever a complaint is made, for instance as to deprivation of life or liberty by judicial authority or pursuant to a judgment or order of a Court; by a child under seven (7) years of age or by a child above seven (7) and under twelve (12) but of immature understanding; by a person of unsound mind; or by a medical authority, it would be obligatory for the recording officer to register a FIR and set the investigatorial process into motion. Such a result would destabilize equilibrium and would be productive of immense and avoidable public mischief, is the contention.
In our considered view these apprehensions are misplaced. Sections 77 and 78 IPC carve out a general exception from culpability in favour of judicial authority or acts done pursuant to a judgment or an order of a Court. Where the information conveyed is that the conduct complained of is by a judicial authority or pursuant to a judgment or an order of the Court, the information is inherently not as to the commission of any offence (in view of Sec. 6 r/w Sec. 77 & 78 IPC); further convictions and sentences are by the court, the officer performing the functions of office. Where however the information is to the effect that a person masquerading as judge or not acting in such capacity had committed a cognizable offence, then and in such circumstance the recording officer must record the information and register the same as a First Information Report. We perceive no serious or grave public mischief ensuing as a consequence of interpreting Section 154 (1) Cr.P.C. on its normal textual terms.
It requires to be noticed that Article 261 of the Constitution enjoins that Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. The appointment of a judge is a public act and the particulars and designation of appointment as a judge are matters of public record. Even if a mischievous complaint is made that a named individual masquerading as a judge had passed an order; whether the named individual is a judge is an easily discoverable public act and a matter of public record. Even the provisions of Section 81 of the Evidence Act enjoin that a Court shall presume the genuineness of any official gazette or government gazette. Judicial appointments of every hue and hierarchy through out the territory of India are gazetted appointments.
For reasons alike, as discussed in the preceding paragraphs, complaints against persons entitled to incompetence defenses such as infants (Sections 82 and 83 IPC) or against medical authority (Sections 88, 89 and 92 IPC) may either require to be recorded and registered as FIR or not, depending upon the idiosyncratic facts, context and circumstances of the information. In any event, the failure to record the information or register the FIR wherever warranted by law, is productive of far greater public mischief than the inconvenience occasioned by recording and registering the FIR.
It must also be recognized that the exceptions in favour of judicial authority or the immunity vouchsafed to acts done pursuant to an order or judgment of a Court comprise public policy class of defenses. The language of Sections 77 and 78 IPC shows that the exculpation is absolute and not hedged in by limitations as in the case of private/self-defense justifications. As we have earlier herein considered on analyses of the textual, juridical and precendential exposition of defense justifications, private defense is a right available as only a preventive and not a retributive measure and proportionality of the defensive force employed to an initial aggression, is an integral component that defines the contours of justifiable claims to a defensive force justification. The general exceptions enumerated in favour of judicial authority or in respect of acts done pursuant to a judgment or order of the Court are thus qualitatively dissimilar and provide an absolute exculpation. We perceive no substance in this contention except sophistry.
Empirical analysis, textual and curial authority with respect to self defense justifications considered supra indicates that the need of self-preservation is rooted in the doctrine of necessity. It is the rule of necessity to which a party may have a recourse under certain situations to prevent greater personal injury or injury to others which he may apprehend. Self-preservation is more an instinctive than a cognitive condition of a majority of the living species and in particular human beings. This instinct is recognized a lawful defense in the laws of civilized Nations and finds legislative expression in Sections 96 to 106 IPC. These statutory provisions per se and as expounded in decisions are clearly to the effect that the Exceptions are hedged in and circumscribed by conditions and limitations including the imminence and gravity (standard) of the threat and conditions as to the requirement of proportionality of the response/defense.
The basic elements of self-defense by employment of deadly/lethal force include (1) the perpetrator must have reasonable grounds to believe that he was in imminent danger of death or serious body harm; heated words, vague threats or the possibility of future harm does not suffice; the harm must be serious and imminent; (2) the perpetrator actually believed that he or any other person was in such imminent danger; establishing this subjective belief may normally require the perpetrator to make a statement or testify as the case may be; (3) the danger was such that the perpetrator could only save himself by employment of deadly force; (4) the perpetrator had employed no more force than was necessary in all the circumstances of the case; and (5) the perpetrator was not the initial aggressor.
Self-defense justification is normally an all or nothing strategy. In order to establish it, the perpetrator has to admit being at the scene of offence with a weapon, which he used intentionally to harm the aggressor. He has to admit that he injured/killed the aggressor. The facts gathered must establish and in a given situation the perpetrator may have to establish that a reasonable person in his place would have acted similarly. Self-defense justifications normally imply a rational response to a very dangerous situation, and normally eschew claims of mental illness, insanity, defenses based on intoxication or drug use, or other defenses enumerated as General exceptions to criminality.
Conclusion on Issue No.1 :
On a careful consideration of the relevant statutory provisions; the binding and persuasive precedents; the normative architecture of private defense justifications generally and in the context of the provisions of the IPC; and the constitutional values that inform and structure our governance processes, we hold that the information conveyed to the officer in charge of a Police Station intimating the death of any person as a consequence of firing by law enforcement officials of the State (notwithstanding a claim as to the death occurring while exercising the right of private defence) must invariably and without exception be registered as FIR u/Sec. 154(1) Cr.P.C.; and investigation u/Sections 156/157 must follow.
Sri Kannabiran, the learned senior counsel (for the 9th respondent in W.P.No. 15419 of 2006) cited the Privy Council decision in Palmer v. The Queen ([56][56]) and the House of Lords’ decision in R. v. Clegg ([57][57]) to support the contention that if the plea of self-defense fails in a case resulting in death in an encounter between civilians and police, the conviction for murder under Section 302 IPC must necessarily follow. We refrain from pronouncing on this aspect of the matter as this aspect does not fall for consideration before this Bench per se or as integral to any of the issues formulated for our consideration.
The question whether on the failure of a plea of self-defense, in cases of death resulting from a police encounter, the accused police officer(s) must invariably be convicted for murder or may be convicted for culpable homicide not amounting to murder, is an aspect that is more appropriately determined by the appropriate Court of Session when trying the charge.
There is an ancillary contention, which we consider. Sri Tarakam, the learned Senior Counsel for the petitioners (W.P.No. 15419/06) has urged that the first information conveyed by a police officer in case of encounter death(s) constitutes an admission of commission of the culpable homicide of murder and therefore registration u/Sec. 154(1) Cr.P.C. is inevitable. We have already concluded that on information conveyed of death(s) in a police encounter recording and registering of such information is a non-derogable executive obligation u/Sec. 154(1) Cr.P.C.
In Faddi vs State of M.P. ([58][58]) the court held:
Where the person who lodged the first information report regarding the occurrence of a murder is himself subsequently accused of the offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove against him, his admissions which are relevant under S. 21 (Evidence Act).
Again in Aghnoo Nagesia vs State of Bihar ([59][59]) the court held that the information conveyed to the police u/Sec. 154 Cr.P.C. is per se not substantive evidence but may be used to corroborate the informant u/Sec. 157 of the Indian Evidence Act or to contradict him u/Sec. 145 of the said Act, and if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct u/Sec. 8 of the Evidence Act. The court clarified that a confession is an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negate the offence alleged to be confessed. The court held:
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25. The confession includes not only the admission of the offence but also other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S.25 is lifted by S.27 (Evidence Act).
In any view of the matter, the information conveyed in cases of encounter deaths cannot be construed as a confession of the offence of culpable homicide since the information asserts the exercise of the right of private defense in justification of the conduct.
Issue No. 3 - Analysis:
While the petitioners and the others supporting the petitioners’ contention urge that even where the first information is conveyed by a police officer to the officer in-charge of a police station (intimating the death of private individual(s) in an exchange of fire while claiming that the police had to resort to firing in self-defense and consequent on the other party firing in the first instance), a FIR must be registered assuming the conduct of the police officer(s) to be culpable homicide; the State and the 10th respondent (W.P.No. 15419/06) contest this submission and submit that an inquest enquiry is adequate.
The learned Advocate General and Sri Lalit chorus that there is neither substantial prejudice occasioned to the rule of law concerns nor is there violation of the provisions of Cr.P.C. since in all cases of death of civilian(s) in exchange of fire with the law enforcement agency, an inquest is invariably conducted, the Cr.P.C. itself provides for a intermediary process of inquest under Secs. 174 to 176 Cr.P.C. and under Sec.176 the inquest could be in addition to or in place of an investigation.
The State assumes and the A.P. Police Officers’ Association (R-10 in W.P.No. 15149/06) echoes this assumption, that an inquest or an investigation by an officer in charge of a police station u/Sec. 174(1) Cr.P.C. is an effective alternate if not a substitute to the recording of first information u/Sec. 154(1) Cr.P.C. and investigation u/Sec.157 Cr.P.C.
It requires to be noticed that it is now the settled legal position that the object of the proceedings u/Sec. 174 is merely to ascertain whether a person has died under suspicious circumstance or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of the proceedings u/Sec. 174 Cr.P.C. – vide Pedda Narayana vs State of A.P.([60][60]).
In Smt. Shakeela Abdul Gafar Khan (12 supra) (a case of death on account of injuries received during police custody), the Supreme Court observed (at Para 21 of the report) that the stand of the State for not registering the FIR and in treating the information as a statement recorded u/Sec. 174 Cr.P.C., is fallacious. The Supreme Court stated that if it were brought to the notice of the police that somebody has beaten the deceased, the FIR ought to be registered. The following observations of the Supreme Court are apposite:
21. … An interesting explanation has been given by CW 1. He has stated that the statements were recorded in terms of Section 174 of the Code and in order to report to the coroner as regards the circumstances of the death. At that point of time sentiments were high. The allegations were looked into and the matter was reported to the higher authorities to order an independent Crime Branch inquiry. This witness also stated that he had also made enquiries from the accused and other police officials and tried to obtain their version. The witness stated that he had personally questioned the accused and two other PSIS, and he perused the papers, medical certificate and station diary etc., and submitted his report through ACP Irani. The official acted as if he was deciding the guilt or otherwise of an accused. The permissible area of application of mind is limited to finding out existence of a cognizable offence and nothing beyond that.
22. It is a fairly well settled position in law that even at the time of taking cognizance the court is not required to find out which particular person is the offender, and the cognizance is taken of the offence. The course adopted by the official certainly tends to make a mockery of law. The official stated that he had requested the higher authorities to conduct a Crime Branch enquiry. It has not been shown as to what was the outcome of such enquiry, if any. We will revert back to this aspect after dealing with the question whether the accused is guilty.
Again in Radha Mohan Singh and Others vs State of U.P.([61][61]), the Supreme Court referred to and quoted with approval the principle spelt out in Pedda Narayana (60 supra) and reiterated that an investigation u/Sec. 174 Cr.P.C is limited in scope and confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injury on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined u/Sec. 175 Cr.P.C. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit or scope of the proceedings u/Sec. 174 Cr.P.C, reiterated the Supreme Court. The Court further held that neither in practice nor in law is it necessary for the person holding the inquest to mention all these details. As observed in Radha Mohan Singh, the decision in Pedda Narayana was approved by a three Judge Bench in Khujji vs State of Madhya Pradesh([62][62]); and the nature and purpose of an inquest held u/Sec. 174 Cr.P.C was also explained in Amar Singh vs Balwinder Singh([63][63]).
It is therefore the clear and established legal position, statutorily explicit and precedentially affirmed that an inquest and the concomitant investigation u/Secs. 174 to 176 Cr.P.C is neither a substitute for nor inheres the rigor of an investigation u/Sec. 157 Cr.P.C which must follow on the registration of a FIR as regards a cognizable offence, u/Sec. 154(1) Cr.P.C. Whether to pursue an investigation (u/Sec. 157 Cr.P.C) is not within the realm of an absolute and uncanalised discretion or the prerogative of the officer in charge of a police station. The discretion is a statutory discretion mandated by legislation and must be neutrally and professionally exercised. The purpose of the investigation u/Sec. 157 Cr.P.C. is to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of an offender.
The scheme of the Cr.P.C. clearly envisages symbiotic and reinforcing powers and authority conferred on the police (representing the Executive); and the Magistrate (representing the Judicial branch), in the raft of procedural prescriptions. There is clearly discernable consecration of oversight functions to the Magistracy and the courts of Criminal jurisdiction. To illustrate, Sec. 37 obligates every person to assist a police officer and a Magistrate as well, in the areas specified in the said provision. Sec.39 enjoins that every person aware of the commission of, or the intention of any other person to commit, any offence punishable under any of the Sections of the IPC (enumerated in Sec. 39 Cr.P.C, including Sec. 302 IPC), shall forthwith give information to the nearest Magistrate or police officer, of such commission or intention. Sec. 40 Cr.P.C enjoins officers employed in connection with the affairs of a village and every person residing in the village to communicate to the nearest Magistrate or to the officer in charge of the nearest Police Station, any information in his possession respecting the matters enumerated in Sec. 40. The provisions of Chapter V (relating to arrest of a person), reinforce the principle that in the scheme of the Code the judiciary represented by the Magistracy is intimately associated with control and oversight of the processes of arrest, apart from exercising himself the power of arrest (Sec.44).
Coming to Chapter XII Cr.P.C., when information is received by the officer in charge of the Police Station relating to the commission of a cognizable offence, the officer shall record and register the same [Sec. 154(1)] and must forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. The Magistrate is thus kept informed and at the earliest point of time, as to the registration of the FIR. This provision ensures effective oversight and control of the process of investigation, subject however to the investigatorial autonomy of the police. The provisions of Sec.159 Cr.P.C. also are to ensure effective control and oversight by the Magistrate on the process of investigation. The reporting obligation by the police (to the Magistrate) and the power conferred on the Magistrate to authorize the detention of the accused u/Sec. 167 Cr.P.C. reinforces the control and oversight functions of the Magistrate. We have earlier in this analysis, considered the scope of Sec. 173 Cr.P.C. including the obligation of the police to forward the police report (to the Magistrate), on completion of the investigation.
When it comes to inquest proceedings however, the process as spelt out in Secs. 174 and 175 Cr.P.C. does not associate the Magistrate (except the District Magistrate or the Sub-Divisional Magistrate, who are executive agencies of the State as distinct from a judicial Magistrate) with the process. Sec. 176(1) Cr.P.C. also consecrates the power to inquire into the cause of death, to a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate empowered in this behalf by the State Government or the District Magistrate.
Sec. 176(1A) Cr.P.C. however carves out an exception. In cases of custodial death, disappearance or rape, in addition to the inquiry or investigation held by the police (inquest inquiry), it is mandated that a Judicial Magistrate or the Metropolitan Magistrate shall hold an inquiry. In a case of inquest therefore (except in cases of custodial death, disappearance or rape), neither is the judicial Magistrate associated with the inquest process nor do the statutory provisions enjoin a reporting obligation by the police to the Magistrate.
Cases of civilian death(s) in police encounter do not fall within the rubric of custodial death, disappearance or rape. The inquest inquiry is thus outside the oversight locus of the judicial branch as represented by the Magistrate. Such oversight is however statutorily entrenched whenever information as to the commission of a cognizable offence is recorded and registered u/Sec. 154 Cr.P.C.
Krishna Iyer, J in Nandini Satpathy (30 supra), quoted with approval the observations of Brandies,J in the dissenting opinion in Olmstead vs United States ([64][64]) :
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizens. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt of law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justified the means … would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
Life and liberty are basic human rights ensured to every person in every civilized society. Article 21 of the Constitution mandates that No person shall be deprived of life or personal liberty except according to procedure established by law. This constitutional injunction is to all persons including the State. In the absence of legislated exceptions, a person accused of even a heinous or the gravest offence must under the law be charged and convicted by a judicial authority after a due process and infliction of the sanction of deprivation of liberty or extinction of life (as the case may be) must be administered only on the basis of a judicial order.
As the State does not claim nor suggest any special or extraordinary legislative authority, for employment of lethal force against a Maoist/extremist/naxalite and adopts the position that the deaths in the police encounters are invariably as a consequence of the exercise of the right of private defense by police officers, it is mandatory that the governance process, including the recording, investigatorial and where warranted the charge and trial processes must conform to the injunctions of Article 21.
In the initial years of our constitutional discourse the scope of Article 21 was narrowly construed as only a guarantee against executive action unsupported by law -- Gopalan A.K. v. State of Madras ([65][65]), until in the decision in Maneka Gandhi v. Union of India([66][66]), the court pronounced that a procedure prescribed for depriving of a person of his life or personal liberty must be reasonable, fair and just and must conform to the requirements of Articles 14 and 19 as well (See also Francis Coralie Mullin v. Union Territory Delhi, Administrator([67][67]).
In interpreting the obligation of the State, its law enforcement officers, the officer in charge of a police station and the investigating officer cannot be oblivious to the jurisprudential verity that the provisions of either the substantive Penal Code or the Cr.P.C., cannot be construed as disparate or disjointed legislative injunctions, infinitely flexible according to considerations of practicality and subjective predilections of the officials of the executive branch enjoined the duty to administer the law. The provisions of the Cr.P.C. must be understood and executed in conformity with the contemporaneous contours of Article 21 as by curial opinions expounded.
Article 21 encompasses a prohibition against the deprivation of life or personal liberty by a law enjoining a procedure that is not reasonable, fair or just; or which is arbitrary, whimsical or fanciful – Francis Coralie Mullin (67 supra).
The right to life includes a raft of obligations upon the State; to preserve the life of every person by offering immediate medical aid to every patient, regardless of whether he is an innocent or a guilty person – Parmanand Katara v. Union of India([68][68]); the liberty against domiciliary visit by the police without authority of law – Kharak Singh v. State of U.P.([69][69]) ; the right against solitary confinement – Sunil Batra v. Delhi Admn.([70][70]); the right against confinement in bar fetters – Charles Sobhraj v. Supdt., Central Jail, New Delhi([71][71]); the right to speedy trial – Hussainara Khatoon v. Home Secy., State of Bihar([72][72]), Kadra Pahadiya v. State of Bihar([73][73]); the right to legal aid – Madhav Hayawadanrao Hoskot v. State of Maharashtra([74][74]); the right against handcuffing – Prem Shankar Shukla v. Delhi Admn.([75][75]); the right against delayed execution – T.V. Vatheeswaran v. State of T.N.([76][76]); the right against custodial violence – Sheela Barse v. State of Maharashtra([77][77]); and the right against public hanging – Attorney General of India v. Lachma Devi ([78][78]).
In Prabhu Dayal Deorah v. District Magistrate([79][79]) (Per: K.K. Mathew, for majority), it was observed:
…We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today is for maintenance of supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be of impact on the maintenance of supplies and services essential to the community when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that the procedure is rigorously observed, however strange this might sound to some ears.
In the counter affidavit of the D.G.P. for the State and in the oral arguments on behalf of the State, it is suggested that having regard to the entrenched and violent activities and tactics adopted by extremist groups, which have resulted over the years in large scale casualties not only to law enforcement officers but civilians as well, it is the obligation of the State to restore the equilibrium of the civil society, to restore law and order and to that end to pursue and apprehend members of the extremist groups. In the course of performance of such sovereign obligation when the police party proceeds, on reliable information to the location where there is an assemblage of extremist groups, the exchange of fire occurs on account of the initial aggression by the other party and casualties, on occasion result.
According to the State, despite the claim of self-defense justification by officers of the law enforcement party, if it were interpreted that Section 154 (1) Cr.P.C. obligates the recording and registration of a culpable offence against the involved police officers, the police force would be demoralized and subjected to the avoidable jeopardy and the trauma of investigation or trial. This is broadly the justification presented by the State for its deeply entrenched and unique practice.
We do not consider that the morale of our law enforcement officials, who perform under difficult, taxing and stressful situations, is so fragile as to be shattered by the due observance of the legal process. In any event, the inexorable mandate of law cannot be sacrificed at the altar of expediency or to placate executive phobia of the legal processes.
Brandeis, J made a pregnant observation in Olmstead v. United States([80][80]) – Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
As Robert Jackson, J eloquently observed in United States v. Spector ([81][81]) – We can afford no liberties with liberty itself.
When the claim is of a self-defense justification, the law is very clear that an ordinary civilian may claim such justification as well. A private defense claim by a member of the police force stands on no different or special footing. Explanations 1 and 2 to Sec.99 IPC clearly exemplify that an individual has a right of private defense even against a public servant or against an act done, or attempted to be done, by the direction of a public servant.
The National Human Rights Commission (NHRC) under the Chairmanship of Hon’ble Justice Sri M.N.Venkatachalaiah, addressed a letter dated 20.03.1997 to all the Chief Ministers recommending the procedure to be followed by the States in cases of encounter deaths. Six years later the NHRC after noticing that its experience in the matters of encounter deaths has not been encouraging and most of the States are not following the guidelines issued in true spirit, with a view to ensure transparency and accountability of public servants, issued modified guidelines. The NHRC noted with distress that though under the existing guidelines the States were required to send intimation to the Commission of all cases of death arising out of police encounter, some States do not send intimation on the pretext that there is no specific direction. The Commission expressed the view that the statistics are necessary for effective protection of human rights in exercise of NHRC functions. Justice A.S. Anand, Chairperson, NHRC, accordingly addressed a letter-dated 2.12.2003 to all the Chief Ministers of States and to Union Territories intimating the modified procedure to be followed in cases of death in the course of police action. The modified procedure recommended is:
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. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID.
C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State CBCID.
D. A Magisterial inquiry must invariably be held in all cases of death, which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.
E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police investigation.
F. Question of granting of compensation to the dependents of the deceased would depend upon the facts and circumstances of each case.
G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/ recommended only when the gallantry of the concerned officer is established beyond doubt.
H. A six monthly statement of all cases of deaths in police action in the State shall be sent by the Director General of Police to the Commission, so as to reach its office by the 15th day of January and July respectively. The statement may be sent in the following format along with post mortem reports and inquest reports, wherever available and also the inquiry reports:-
1. Date and place of occurrence
2. Police Station, District
3. Circumstances leading to deaths:
i. Self defence in encounter
ii. In the course of dispersal of unlawful assembly
iii. In the course of effecting arrest.
4. Brief facts of the incident
5. Criminal Case No.
6. Investigating Agency.
7. Findings of the magisterial inquiry/enquiry/by Senior Officers:
a. disclosing in particular names and designation of police officials, if found responsible for the death, and
b. whether use of force was justified and action taken was lawful.
The Hon’ble Chairperson, NHRC, Justice A.S.Anand in the letter dated 2.12.2003 referred to above, while intimating the modified procedure prefaced the directives with the following observations:
Dear Chief Minister,
Death during the course of a police action is always a cause of concern to a civil society. It attracts criticism from all quarters like Media, the general public and the NGO sector. The police does not have a right to take away the like of a person. If, by his act, the policeman kills a person, he commits an offence of culpable homicide or not amounting to murder, unless it is established that such killing was not an offence under the law. Under the scheme of criminal law prevailing in India, it would not be an offence if the death is caused in exercise of right of private defence. Another provision under which the police officer can justify causing the death of a person, is section 46 of the Criminal Procedure Code. This provision authorizes the police to use reasonable force, even extending up to the causing of death, if found necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, it is evident that death caused in an encounter if not justified would amount to an offence of culpable homicide.
In the revised A.P. Police Manual, S.O. 546 deals with investigation of terrorist crime. Para-6 of S.O. 546 sets out the NHRC guidelines for investigating death(s) in police encounter. These are:
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 the death to ascertain what, if any, offence was committed and by whom. (emphasis)
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 State CID. Alternatively such cases may be investigated by an officer of the rank of Dy. Supdt. of Police/SDPO of some other district. (emphasis)
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.
S.O. 546(6)A clearly enjoins that the information received about deaths in encounter between police party and others should be entered in the appropriate register and Para-B clearly enjoins that such information shall be regarded as sufficient to suspect the commission of a cognizable offence. Surely, the intendment of SO 546(6)B is not that the investigation (not inquest, be it noted) into the facts and circumstances must be of the offence, presumably committed by the deceased or the civilian party to the transaction. The language of Para-B excludes any such extravagant assumption. The S.O. is clear that the non-derogable obligation is to register FIR treating such information as conveying information as to commission of a cognizable offence by the police officer(s) and thereafter to set in motion the process of investigation to ascertain what offence was committed and by whom. This is not a process falling under Sec. 174 Cr.P.C. The above analysis is compelling also from the provisions of S.O. 546(6)C which enjoin that the cases be entrusted for investigation to an independent investigation agency such as the State CID or alternatively by an officer of the rank of the Deputy Superintendent of Police/SDPO of some other District.
The current practice is to register the death u/Sec. 174 Cr.P.C. i.e., for the purpose of inquest. We have already recorded the conclusion that an inquest is not for the purpose of ascertaining the perpetrator of an offence. There appears no logical purpose served in enjoining (S.O. 546(6) C) that the case registered u/Sec. 174 Cr.P.C. should be made over for investigation to an independent agency. It is the FIR registered against officer(s) treating the information received as one conveying the commission of a cognizable offence that requires to be investigated by an independent agency or the Dy.S.P/SDPO of another district (since the officer(s) of the concerned police station are normally the perpetrator(s) of the homicide which is prima facie to be treated as culpable).
The practice now followed in the State is not only in clear deviance of the NHRC guidelines and the provisions of S.O. 546(6) in the A.P. Police Manual, an extravagant subversion of the rule of law, but also in defiance of the Legislative mandate qua the provisions of the Cr.P.C.
The analysis in the preceding paragraphs compels the conclusion that a self-defense justification cannot be assumed to be legitimate or established on the mere assertion by or on behalf of the perpetrator, without the rigor of a focused investigation for the purpose of collecting relevant evidence after registration of the FIR incorporating the name of the perpetrator(s), if and as disclosed in the information conveyed and duly enumerating the appropriate provisions of substantive law.
In our considered view the failure to record and register the primary offence (of the death of civilian(s) in a transaction involving exchange of fire with officers of the police establishment of the State) is a grave and wholly unwarranted transgression of constitutional and sovereign responsibility. The State is legislatively mandated to record and register a cognizable offence and thereafter set the criminal law in motion including the immediately following process of investigating into the offence.
A person (whether a civilian or a public servant) accused of a cognizable offence including of culpable homicide is exculpated of the prohibited conduct only on the ascertainment and establishment of the necessary facts, which rationally support the claim of private defense. It inexorably follows that when the information is conveyed to an officer in charge of the police station (even if be by a police officer), that the death(s) occurred as a consequence of firing by the police in self-defense, such information must be recorded under Section 154 (1) Cr.P.C. treating the information as one relating to commission of the cognizable offence of culpable homicide amounting to murder. An investigation mandated by Section 157 Cr.P.C., must follow. The investigation could be avoided only by (the officer in charge of the police station) recording in a report, clear reasons for failing to pursue investigation. Recording of such reasons is mandatory and a non-derogable obligation qua the provisions of Section 157 (2) Cr.P.C.
Conclusion on Issue No.3 :
We therefore consider and hold that the registration of civilian death(s) in police encounters exclusively u/Sec. 174 Cr.P.C. is wholly inappropriate and unauthorized. We further hold that such information shall be recorded and registered u/Sec. 154 Cr.P.C., a process that structurally ensures judicial oversight, control and supervision, of the integrity of the investigatorial process.
We reject the contention that an obligation to record the first information u/Sec. 154(1) Cr.P.C and to investigate into the facts and circumstances of the case so recorded u/Sec. 157 Cr.P.C is avoided by the stratagem of an inquest u/Sec. 174 Cr.P.C. The stand by the State that there is nevertheless an investigation on registering the case under Section 174 Cr.P.C. or incidentally after registering a case against the offences by the civilian party, is an extravagant argument, incongruous with the provisions of the Cr.P.C. We find no justification on text, principle or authority for this deviant process that has been entrenched as an inveterate and regnant practice in the State.
Issue No.2: Whether 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 defense could be conclusively determined during investigation; whether the final report submitted by the police officer to the Magistrate on completion of the investigation is conclusive or whether the existence of the circumstances coming within the exceptions requires to be determined only in appropriate judicial proceedings?
Chapter-XII of Cr.P.C. sets out the procedure regarding Information to the police and their powers to investigate. As we have seen, Section 154 Cr.P.C. relates to the obligation to record and register every information relating to the commission of a cognizable offence. We have held (while recording our conclusion on issue No.1) that every information intimating to an officer in charge of the police station of death(s) in a transaction involving exchange of fire between police officer(s) and civilian(s) must and invariably be recorded and registered as FIR and if in such transaction there be death(s) of member(s) of law enforcement as well, separate FIRs must be registered – one in respect of death(s) of police personnel and the other relating to the death(s) of civilian(s). We have further held that on registration of FIR, the investigation enjoined by Section 157 Cr.P.C. must follow.
Section 156 (1) Cr.P.C. confers power on the officer in charge of a police station to investigate any cognizable offence (which the Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter-XIII), without an order of the Magistrate.
Section 157 Cr.P.C enjoins that from the information received or otherwise, if an officer in charge of a police station has reason to suspect the commission of an offence, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person or depute a subordinate (as authorized by a general or special order of the State in this behalf) to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender(s). (emphasis)
Section 159 Cr.P.C. sets out the power of the Magistrate (on receiving a report under Section 157 Cr.P.C) to direct an investigation, or, if he thinks fit, to at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in the Code.
Section 173 Cr.P.C. deals with the forwarding of the report of investigation to the Magistrate empowered to take cognizance of the offence on a police report. Sub-section (2) of Section 173 Cr.P.C. enumerates the matters that must be stated in the report of the investigation, to be forwarded to the Magistrate (in the form prescribed by the State Government). These are: the names of the parties; the nature of the information; the names of the persons who appear to be acquainted with the facts and circumstances of the case; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; and whether he has been forwarded in custody under Section 170. Clause (ii) of Section 173 (2) enjoins the obligation to communicate the action taken by the police officer to the person, if any, who had first given the information relating to the commission of the offence. Sub-section 173 (8) clarifies that nothing in Section 173 shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) is forwarded to the Magistrate and that if upon such investigation, further evidence, oral or documentary, is revealed, the police officer shall forward to the Magistrate a further report or reports regarding such evidence and that the provisions of sub-sections (2 to 6) shall apply in relation to such report or reports, as they apply in relation to the initial report forwarded under sub-section (2).
As is apparent from the text of Sec.173 Cr.P.C., on completion of investigation the investigating officer is enjoined to forward to the Magistrate, a report in the form prescribed by the State Government. The report, which is variously, called in practice a final report or a completion report shall contain the particulars referred to in sub-clauses (a) to (g) of Clause (i). The final report must incorporate an opinion; (d) whether any offence appears to have been committed and, if so, by whom? Investigation thus involves not only collection of evidence but also formation of opinion. It is such opinion that is enjoined by Sec. 173(2)(i)(d) Cr.P.C. to be included in the police report that must be forwarded to the Magistrate. Sub-clause (c) enjoins that the police report should incorporate the names of the persons who appear to be acquainted with the circumstances of the case. Therefore the names of all persons either acquainted with the circumstances of the case or who in the opinion of the investigating officer appear to have committed any offence shall be incorporated in the police report u/Sec. 173 Cr.P.C.
While Sec. 154(1) Cr.P.C. mandates the recording and registration of the information relating to the commission of a cognizable offence (whether or not the name(s) of the accused are mentioned in such information) Sec. 157(1) Cr.P.C. mandates the investigation of the facts and circumstances of the case and if necessary thereupon to take measures for the discovery and arrest of the offender(s). In complementarity with the concomitants of investigation u/Sec.157(1) Cr.P.C., the police report to be forwarded to the Magistrate (u/Sec. 173(2)(i)(d) Cr.P.C.) shall incorporate the names of person(s) by whom the offence appears to have been committed (in the opinion of the Investigating Officer).
The extent and contours of Judicial oversight of the powers of Investigation :
The Judicial Committee of the Privy Council in King Emperor vs Nazir Ahmed([82][82]) (per Lord Porter) observed that the judiciary should not interfere with the police in matters that are within their province and into which the law imposes on them a duty of enquiry. The Privy Council held: the functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own functions, always of course, subject to the right of the court to intervene in an appropriate case … the court’s function begins when a charge is preferred before it and not until then.
The scope of investigation was again explained in H.N. Rishbud and Anr. Vs State of Delhi ([83][83]) as consisting generally of: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173.
In Vadilal Panchal vs Dattatraya Dulaji Ghadigaonkar and Anr. ([84][84]) (per SK Das,J) the issue that fell for consideration was whether a Magistrate on receiving a report (pursuant to a direction for an enquiry u/Sec. 202 Cr.P.C. , for ascertaining the truth or falsehood of a complaint), could accept the report supporting the plea of self-defence presented by the person complained against, on the basis of the report and statement of the witnesses recorded by the enquiring officer. On facts the Magistrate had dismissed the complaint u/Sec. 203 Cr.P.C. Thereagainst the respondent-complainant moved the High Court, which set aside the order of dismissal and directed the Magistrate to issue process against the appellant. The High Court held that since indisputably the death occurred on account of the shot fired by the respondent, the accused would have to establish the necessary ingredients of the right of private defence as laid down in Sec. 96 onwards of the IPC. The High Court opined that General Exceptions cannot be held to be established from the mere report of the police as that would be contrary to the provisions of Sec. 105 of the Evidence Act; that the provisions of Sec. 202 and 203 Cr.P.C. do not abrogate the rule of presumption explicated by Sec. 105 of the Evidence Act nor the mode of proof of exception laid down in imperative language in Sec.105. On appeal, the Supreme Court ruled that the High Court erred in concluding that it was not open to the Magistrate to come to the conclusion that on the material before him no offence had been made out and there was no sufficient ground for proceeding further on the complaint. The scope of the authority and discretion of the Magistrate u/Secs. 202 and 203 Cr.P.C. was spelt out by the Supreme Court in Vadilal Panchal as under (paragraph 10 of the report):
(10) …What is contended on behalf of the respondent complainant is that as a mater of law it was not open to the learned Magistrate to accept the plea of right of self-defence at a stage when all that he had to determine was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provisions of S. 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an enquiry under S. 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses – all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions. (emphasis).
In Abhinandan Jha vs Dinesh Mishra ([85][85]) (per Vaidialingam,J) the court emphasized that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer in charge of a police station. The court further held that when the police submits a report that no case has been made out for sending up the accused for trial, it is not open to the Magistrate to direct the police to file a charge-sheet. The court however clarified that the Magistrate is not powerless in the circumstances. After the completion report is drawn up and forwarded to the Magistrate u/Sec. 173 Cr.P.C. the Magistrate is required to consider such police report u/Sec. 190 Cr.P.C. (in Chapter XIV, relating to Conditions Requisite for Initiation of Proceedings). As laid down in Abhinandan Jha:
(14) … The use of the words 'may take cognizance of any offence', in sub-section (1) of S. 190, in our opinion, imports the exercise of a 'judicial discretion', and the Magistrate, who receives the report, under S. 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows, that it is not as if, that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts, disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under S. 190 (1) (b) of the Code. This will be the position, when the report, under S. 173, is a charge-sheet.
(15) Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under S. 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a 'final report'. ? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156 (3), to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under S. 156 (3 ). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under S. 190 (1) (b), notwithstanding the contrary opinion of the police, expressed in the final report.
(17) … There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under S. 190 (1) (c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under S. 190 (1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed.
In H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh vs State (Union Territory of Chandigarh) ([86][86]) (per O. Chinnappa Reddy, J), the Supreme Court having considered and affirmed the principles set out in the earlier decisions in Abhinandan Jha (85 supra) and in Tula Ram vs Kishore Singh([87][87]), clarified the scope of the power of the Magistrate (on receipt of a complaint) as under:
(6) It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under S. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under S. 203. If in his opinion there is sufficient ground for proceeding he may issue process under S. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the. Magistrate may, instead of taking cognizance of the offence, order an investigation under S. 156 (3 ). The police will then investigate and submit a report under S. 173 (1 ). On receiving the police report the magistrate may take cognizance of the offence under S. 190 (l) (b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under S. 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under S. 200, Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under S. 156 (3) and received a report under S. 173 will not have the effect of total effacement of the complaint and therefore the magistrate will not be barred from proceeding under S. 200, 203 and 204. Thus, a magistrate who on receipt of a complaint, orders an investigation under S. 156 (3) and receives a police report under S. 173 (1), may, thereafter, do one of three things; (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under S. 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under S. 190 (1) (a) on the basis of the original complaint, and proceed to examine upon oath the complainant and his witnesses under S. 200. If he adopts the third alternative, he may hold or direct an inquiry under S. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
In M/s India Carat Pvt. Ltd. vs State of Karnataka and Anr.([88][88]) (per Natarajan,J) the scope of the power, authority and discretion of the Magistrate on receiving the police report u/Sec. 173 Cr.P.C. again fell for consideration by the Supreme Court. The appellant complained to the police alleging cheating and criminal breach of trust by the 2nd respondent. After investigation the police submitted a report to the court to the effect that further investigation was not required as the matter was civil in nature. The appellant approached the Magistrate for quashing the report and grant of permission to him to prove the commission of offence by the 2nd respondent. The Magistrate on perusing the investigation records was satisfied that a prima facie case was made out against the 2nd respondent. He passed an order for registering a Calendar Case against the said respondent u/Secs. 408 and 420 IPC and for issuing summons to him u/Sec. 204 Cr.P.C. The 2nd respondent thereupon approached the High Court u/Sec. 482 Cr.P.C. for quashing the order of the Magistrate. The High Court allowed this petition holding that the Magistrate failed to follow the procedure laid down in the Cr.P.C. for taking cognizance of the case and issuing processes to the accused after the police forwarded the report. The High Court held that after receipt of the police report the Magistrate should have issued a notice to the appellant to ascertain whether he was disputing the correctness of the police report and if so calling upon the appellant to comply with the requirement of Sec.200 Cr.P.C. The High Court further held that only after examining the appellant on oath and his witnesses, the Magistrate ought to have decided whether a case should be registered and process issued to the accused. Aggrieved thereupon the appellant appealed to the Supreme Court.
After quoting with approval its earlier decisions in Abhinandan Jha, Tula Ram and H.S.Bains (85, 88 & 86 supra) the Supreme Court in India Carat held:
(16) The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190 (1) (b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190 (1) (a) though it is open to him to act under Section 200 or Section 202 also. The High Court was therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
(17) The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156 (3), the police would have had to submit a report under Section 173 (2). It has been held in Tula Ram v. Kishore Singh (1978) 1 SCR 61: (AIR 1977 SC 2401) that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190 (1) (b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.
These principles were reiterated in Minu Kumar and Anr. vs State of Bihar and Ors.([89][89]).
On analyses of the several provisions in Chapters XII and XIV to XVI Cr.P.C. and in the light of the binding interpretation of the several provisions, the following principles emerge:
(A) On registration of FIR, on the basis of information received relating to commission of a cognizable offence, the officer in charge of a Police Station shall investigate such cognizable case even without an order of the Magistrate and shall also investigate when so ordered by a Magistrate u/Sec. 190 Cr.P.C.
(B) The obligation to investigate is {apart from following upon the registration of the offence u/Sec. 154(1)} also on information otherwise received. The procedure for investigation includes sending forthwith a report to the Magistrate of the information received; to proceed to the spot of occurrence to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of an offender. Wide and adequate powers are conferred u/Secs. 160 to 168 Cr.P.C. to enable a rigorous investigation.
(C) Upon completion of the investigation the officer in charge of the Police Station is required to forward to the Magistrate the police report in the prescribed form setting out the matters and information enumerated in Sec. 173(2), apart from the obligation to communicate to the person lodging the first information, the action taken on such information.
(D) Provisions of Chapter XIV Cr.P.C. set out the conditions requisite for initiation of proceedings.
Section 190 empowers (subject to the provisions of Chapter-XIV) a Magistrate to take cognizance of any offence --- upon receiving a complaint of facts, which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The provision is clear that cognizance is taken of the offence and not of or merely of the offender. The Magistrate is required to exercise sound and critical judicial discretion, to apply his mind to the facts, the material and the evidence before him. When considering taking cognizance upon a police report of such facts (the police report under Section 173 Cr.P.C.), the report must be subjected to rigorous judicial scrutiny. The Magistrate exercises judicial functions and therefore at this stage of the matter, the Magistrate must bring to bear on the police report a judicious and not a routine or a casual approach.
The word cognizance has no esoteric or an arcane significance in criminal law or procedure. It merely connotes --- becoming aware of. When used with reference to a Court/Judge/Magistrate cognizance means to take notice of judicially.
As pointed out in Chief Enforcement Officer v. Videocon International Ltd.([90][90]) (Per: C.K. Thakker, J), taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or a condition precedent for holding a valid trial.
In Videocon International (90 supra) after referring to its earlier decisions in R.R. Chari v. State of U.P. ([91][91]); Narayanda Bhagwandas Madhavdas v. State of W.B. ([92][92]); Ajit Kumar Palit v. State of W.B. ([93][93]); Hareram Satpathy v. Tikaram Agarwala([94][94]); Gopal Das Sindhi v. State of Assam ([95][95]); Nirmaljit Singh Hoon v. State of W.B.([96][96]) and Darshan Singh Ram Kishan v. State of Maharashtra([97][97]), the apex court concluded: … Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence.
On text and precedential authority therefore, the Magistrate is not bound by the police report forwarded under Section 173 (1) Cr.P.C. nor by the opinion or conclusion expressed therein that the case is false, for taking cognizance of the offence. If satisfied on the basis of the material before him, including the material disclosed during the course of investigation; and in a case involving a self-defense justification assertion, if satisfied that such material on record does not clearly establish the legitimate application of self-defense justification, the Magistrate must take cognizance of the offence disregarding the contrary opinion set out in the Police report, forwarded under Section 173 (2). The statutory intent is clear (Sec.173 Cr.P.C) and the precedents explicit, that the police report incorporates only the opinion on the product of the investigation, an opinion that must be subjected to critical evaluation by the Magistrate.
In cases of homicide consequent on an encounter (between the police and civilians, in particular where there is a claim of defense justification asserted), the death is often the outcome of a complex series of causal relations, with a blurred exchange of moral identities between the participants in the transaction. Homicide in such context is not an object with an intrinsic nature and meaning. It is rather better understood as a situationally embedded product of legal processes.
Investigation of homicide in general and in encounter cases (with a claim of self defense) in particular, invites the need to consider the processes by which actions, reactions and interactions, which are constitutive of the incident, are interpreted and defined in a manner that the incident can be identified as constituting a (culpable or non-culpable) homicide, and the perpetrator recognized and labeled as a misdemeanant or otherwise.
The officer tasked to investigate the event, must produce a definitive account of who did what to whom, why and in what sequence and circumstance. The opinion in the police report, which is not substrated by such definitive account, is not an opinion that a Magistrate may lawfully accept, without abdicating the critical judicial function legislatively consecrated to his care (u/Sec. 190 Cr.P. C.) – (see Article The Process Structures of Police Homicide Investigations)[98][98].
(E) Chapter XV Cr.P.C. sets out the procedure to be followed with respect to complaints made to a Magistrate. Sections 200 to 203 set out the procedure, which a Magistrate empowered to take cognizance of an offence should follow when a complaint is made to him vide Sec.190(1)(a). Sec.200 enjoins an obligation (subject to specified exceptions), that the Magistrate shall examine the complainant and the witnesses, if any, upon oath, to record the substance of such examination to writing and to be signed by the complainant, the witnesses and by the Magistrate.
The enquiry envisaged under Secs. 200 to 203 is for ascertaining the truth or falsehood of the complaint i.e., for ascertaining whether there is material in respect of the complaint so as to justify the issuance of process. The enquiry and the procedure in this Chapter is not for arriving at a satisfaction by the Magistrate whether there is sufficient ground for conviction – Vadilal Panchal (84 supra). If a prima facie case is made out on examination of the complainant and his witnesses, the Magistrate shall issue process.
Sec.202 empowers the Magistrate to postpone the issue of process for compelling the attendance of the person complained against and to direct (subject to exceptions) a local investigation to be made by police officer (or by such other person as he thinks fit), for the purpose of deciding whether there is sufficient ground for proceeding. The scope of enquiry u/Sec. 202 is confined to ascertainment of the truth or otherwise of the allegations made in the complaint, in order to determine whether process should be issued u/Sec. 204 or whether the complaint should be dismissed by resorting to Sec. 203 on the satisfaction that there is no sufficient material or reason for proceeding on the basis of the statements of the complainant and his witnesses, if any. The enquiry under this provision does not partake the character of a full dress trial which can only occur after the process is issued u/Sec. 204 calling upon the proposed accused to answer the accusations made against him for adjudicating the guilt or otherwise -- Vadilal Panchal (84 supra); Pramatha Nath Talukdar vs Saroj Ranjan Sarkar([99][99]); Mohinder Singh vs Gulwant Singh([100][100]); Badgadi Narasinga Rao vs Kinjarapu Vara Prasad([101][101]). It is not within the province of the Magistrate to enter into a detailed discussion on the merits or otherwise of the case. The scope of the enquiry u/Sec.202 is limited to the ascertainment of the truth or otherwise of the allegations (i) on the material placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issuance of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defense that the accused may have. In a proceedings u/Sec. 202 the accused has no locus nor is entitled to be heard on the question whether process should be issued against him. It is not open to the Magistrate to go into the realm of appreciation of evidence or to the question of sufficiency of the evidence for conviction of the accused – Ponnal vs Rajamanickan([102][102]). The satisfaction as to the prima facie case and issue of process is a judicial function and the issue of process itself is a judicial determination – Rajendranath vs Dy. Supdt. of Police, Purulia([103][103]).
Ms. Nitya Ramakrishnan (for the 11th respondent in W.P.No. 15419/06) contended that in a case triable by the Court of Session (culpable homicide is triable exclusively by the Court of Session), the Magistrate has no authority to decline to take cognizance and commit the case to sessions. All General Exceptions must be established only at the trial in the Court of Session, is the contention. Reliance is placed on Balraj Khanna and Ors vs Moti Ram ([104][104]). Moti Ram filed a complaint before a Magistrate u/Sec. 500 IPC asserting that the allegations by the appellants were defamatory in character. Before the Magistrate the respondent (complainant) and other witnesses were examined u/Sec. 202 Cr.P.C. The Magistrate dismissed the complaint u/Sec. 203 holding that there was no evidence on record as to which of the appellants made which allegation against the respondent and therefore no prima facie case against any of the appellants can be said to have been made out; and that the resolution passed by the Standing Committee (of the Municipal Corporation, Delhi where the respondent was serving as Liaison Officer); the discussion preceding it are covered by the Exceptions to Sec. 499 IPC; and hence the appellants were within their right in passing a resolution recommending the respondent’s suspension. A revision thereagainst was dismissed by the Addl. Sessions Judge, Delhi. The High Court reversed, set aside the order of the Magistrate dismissing the complaint u/Sec. 203 Cr.P.C. and directed further inquiry to be made into the complaint. The appellant thereupon moved the Supreme Court. The Supreme Court held that the question of application of Exceptions to Sec.499 IPC does not arise at the stage of consideration of the complaint (under Chapter XV). Rejection of the complaint by the Magistrate cannot therefore be sustained.
Another decision relied on is Sewakram Sobhani vs R.K.Karanjia and Ors([105][105]). The appellant lodged a criminal complaint for defamation against the respondents. The Magistrate issued process to the respondent directing him and others to appear for explaining the substance of the accusation to them and for recording their plea. The respondents thereupon preferred revision to the High Court u/Sec. 397 and alternatively u/Sec. 482 Cr.P.C. The High Court quashed the proceedings holding that the respondents’ plea clearly falls within the ambit of Exception 9 of Sec. 499 IPC and that it would be an abuse of the process of the court if the trial were allowed to proceed which ultimately would turn out to be a vexatious proceedings. The complainant appealed to the Supreme Court. A.P. Sen, J and O.Chinnappa Reddy,J (delivered separate concurring opinions) allowing the appeal and setting aside the order passed by the High Court, directed the Magistrate to record the plea of the accused u/Sec. 251 Cr.P.C. and thereafter to proceed with the trial according to law. Baharul Islam, J recorded a dissent. The majority held, referring to the decisions in Dr. N.B.Khare vs M.R. Masani ([106][106]); Harbhajan Singh vs State of Punjab ([107][107]); Chaman Lal vs State of Punjab([108][108]) and Sukra Mahto vs Basdeo Kumar Mahto([109][109]); that even the truth of an allegation does not permit a justification under the First Exception unless it is proved to be in the public good. The question whether or not it was for the public good is a question of fact like any other relevant fact in issue. If a journalist makes assertion of fact as opposed comments on them, he must justify his assertion or in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith. The majority opinion reiterated that proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to Sec. 499 IPC. In the Ninth Exception the person making the imputations has to substantiate that his inquiry was with due care and attention and he was thus satisfied that the imputation was true. The majority further held:
In order to attract the Ninth Exception to Sec. 499 IPC, the imputations must be shown to have been made (1) in good faith and (2) for the protection of the interest of the person making it or of any other person or for the public good. The insistence is upon the exercise of due care and attention; recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation was made, the position of the person making imputation and a variety of other factors. Good faith is therefore a matter of evidence. It is a question of fact to be decided from the facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the First Exception of Sec. 499 IPC, expressly states “Whether or not it is for the public good, is a question of fact”.
The court held that ‘Public good’ like ‘good faith’ is a matter for evidence and not conjecture.
At this stage of the analysis we may usefully refer to another judgment of the apex court that, in our view, lends clarity to this aspect of the matter. In State of Orissa vs Debendra Nath Padhi([110][110]), the issue before the court was whether the trial court at the time of framing of a charge could consider material filed by the accused. In Satish Mehra vs Delhi Administration([111][111]), a two Judge Bench of the Supreme Court had observed that if the accused succeeds in producing any reliable material at the time of cognizance or framing of a charge, which might fatally affect the very sustainability of the case, it is unjust to suggest that such material should not be looked into by the court at that stage. The Satish Mehra court held that the object of providing an opportunity to the accused of making submissions as envisaged in Sec. 227 Cr.P.C. is to enable the court to decide whether it is necessary to proceed to conduct the trial. The court further held that if the material produced by the accused even at that early stage could clinch the issue the court could not shut out such material holding that they should be produced only at the trial. Earlier decisions including by three Judge Benches in Superintendent and Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja([112][112]) and State of Bihar vs Ramesh Singh([113][113]), held that the trial court could consider only the material placed before it by the investigating agency, there being no requirement in law for the court to grant at that stage, either an opportunity to the accused to produce evidence in defense or consider such evidence as the defense might produce at that stage. In view of the conflict, the matter was referred to a three Judge Bench, which determined the issue in Debendra Nath Padhi. The three Judge Bench in Debendra Nath Padhi (per Y.K.Sabarwal,J), after referring to earlier decisions in Ramesh Singh (113supra), Anil Kumar Bhunja (112 supra), State of Delhi vs Gyan Devi([114][114]); State of M.P. vs S.B.Johari([115][115]); and State of Maharastra vs Priya Sharan Maharaj([116][116]); held that at the stage of framing of the charges the defense of the accused cannot be put forth. The court rejected the contention based on reliance on Articles 14 and 21 of the Constitution that non-consideration of the material filed by the accused would render the provision (Sec. 227 Cr.P.C.) invalid. The court held that the requirement of hearing the submissions of the accused (in Sec. 227 Cr.P.C.) or even u/Sections 228, 238 and 239 Cr.P.C., was confined to hearing the submissions of the accused on the record of the case filed by the prosecution and the documents submitted therewith and nothing more. The court emphatically ruled that the expression hearing the submissions of the accused couldn’t mean an opportunity to the accused to file material and thereby alter the settled law. The court concluded that at the stage of framing of the charges, hearing the submissions of the accused must be confined to the material produced by the police. The court over-ruled the decision in Satish Mehra. The ratio in Debendra Nath Padhi reinforces the appropriate construction of the provisions of Sections 190 and 203 Cr.P.C. as well; that the decision to take cognizance or dismiss the complaint must be taken without consideration of the plea or any material that an accused desires to present at these stages.
The decision in Vadilal Panchal (84 supra), however negates the position that a Magistrate cannot ever decline to take cognizance of an offence that is exclusively triable by the Court of Session.
In cases of death occurring on account of police firing, the record, i.e. the first information that shall be registered u/Sec. 154(1) (as we have held on issue No.1), or in the case of a private complaint as to such event, clearly narrates the occurrence of homicide(s). Such homicide is presumptively culpable, a private defense justification asserted in the first information notwithstanding. Where an investigation is pursued (u/Sec. 157) following upon the FIR, the investigation must necessarily bring forth the facts and circumstances of the case. The identity of the perpetrator(s); the identification of the bullets, the identity of the weapons from which particular bullets (recovered from the body) were fired, the officer to whom a particular weapon was issued, are all matters invariably of official record (see para 624(1) and (2) of the A.P. Police Manual relating to the ‘Care and Custody of Arms and Ammunition’) and could be correlated by forensic and ballistic analysis that must accompany the investigation, including the result of an autopsy, which must inevitably be held.
There may occur rare circumstances where the investigation and the final report fail to make out even a prima facie case for either (a) taking cognizance of the offence or (b) on exercising sound judicial discretion, warrant the dismissal of a complaint. It is in those rare cases/circumstances, but nevertheless that the judicial discretion u/Secs. 190 and 203 Cr.P.C. enures.
We have already noticed that the precedential authority on the scope of the power of the Magistrate, under Chapter XV Cr.P.C. does not invite any discretion for considering or adverting to any defense that an accused may have; and the accused has no locus standi in a proceedings u/Sec. 202 Cr.P.C., to be heard on the question whether process should be issued against him. The Magistrate in an enquiry u/sec. 202 must only ascertain the truth or otherwise of the allegations on the material placed by the complainant before the court. The decisions in Balaraj Khanna and Sewakram Sobhani (104&105 supra) entrench this position.
It must however be noticed that the Magistrate while considering the police report forwarded to him u/Sec. 173, on an information recorded and registered u/Sec. 154 and pursuant to an investigation u/Secs. 156 and 157 Cr.P.C.; or while considering a police report forwarded u/Sec. 173, on a direction by a Magistrate u/Sec. 156(3) pursuant to a complaint received by such Magistrate u/Sec. 190(1)(a) / 200 [while directing investigation before taking cognizance of the complaint as explained in Devarapalli Lakshminarayna Reddy and Ors vs V. Narayana Reddy and Ors([117][117])] (analysed infra), still inheres the discretion (a judicial discretion and subject to the parameters discussed above) either to take cognizance u/sec. 190 or to dismiss the complaint u/Sec. 203 Cr.P.C. This is so since in principle the Police report must disclose that there is a prima facie case for proceeding further by and on taking cognizance. Once cognizance is taken however and in a case triable exclusively by the Court of Session, the Magistrate shall have to commit the case to Sessions u/Sec. 209 Cr.P.C. Thereafter it is the Court of Session that is in seisin of the case.
Proviso (a) to Sec. 202(1) forbids the Magistrate to direct an investigation (to be made by a police officer or by such other person as he thinks fit), where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. Sub-Sec.(2) of Sec.202 stipulates that the Magistrate may, in an inquiry u/sub-sec.(1) if he thinks fit, take evidence of witnesses on oath. The proviso to sub-sec.(2) states that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
The issue whether in view of Clause (a) of the First proviso to Sec.202(1) Cr.P.C., a Magistrate who receives a complaint disclosing an offence exclusively triable by the Court of Session is debarred from sending the same to the police for investigation u/Sec. 156(3), directly fell for consideration in Devarapalli Lakshminarayana Reddy (117 supra). On facts, the first respondent preferred a complaint before a Judicial Magistrate against the appellant alleging offences, some of which are exclusively triable by the Court of Session. The Magistrate on receiving the complaint forwarded it to the police u/Sec. 156(3) Cr.P.C. for investigation and report by a specified date. On behalf of the appellant it was contended that in view of the provisions of Sec.202(1)(a) there is a peremptory prohibition on the Magistrate to direct investigation of such a complaint by the police or any other person. The respondents contended that the power u/Sec. 156(3) Cr.P.C. can be invoked at a stage when the Magistrate has not taken cognizance of the case; that the power of the Magistrate u/Sec. 156(3) is independent of his power to send the case for investigation u/Sec. 202; and that the provisions of Sec. 202 come into operation after the Magistrate starts dealing with the complaint in accordance with the provisions of Chapter XV. Since the Magistrate had sent the complaint for police investigation without taking cognizance, the power u/Sec. 202(1)(a) was not attracted.
The apex court explained the position thus: The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the magistrate in completing proceedings already instituted upon a complaint before him.
Applying the analysis to the facts of the case, the Supreme Court in Lakshminarayana Reddy (117 supra) held that as the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only ordered an investigation u/Sec.156(3) he did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses u/Sec. 200, which the first step in the procedure prescribed under that Chapter and therefore the question of taking next step of that procedure envisaged in Sec. 202 did not arise. The Magistrate, instead of taking cognizance of the offence, had in exercise of his discretion, sent the complaint for investigation by the police u/Sec. 156. Thus, the first proviso to Sec. 202(1) was not attracted, held the court in Lakshminarayana Reddy.
Sec. 202(2) serves the purpose of a preliminary enquiry as regards a private complaint triable exclusively by a Court of Session. In such an event the Magistrate has to comply with the provisions of Sec. 208 Cr.P.C. (Chapter XVI) by furnishing copies of documents mentioned in the said Section. As pointed out in Rosy vs State of Kerala([118][118]) and Birendra K Singh vs State of Bihar([119][119]), the provisions of Sec. 202(2) are mandatory. As explained in Dharmvir vs State of U.P([120][120]) in a complaint case relating to a matter exclusively triable by the Court of Session, the Magistrate is required to himself conduct the enquiry and may not direct an investigation by a police officer. The prohibition enjoined on the Magistrate u/Sec. 202(1)(a) [to direct an investigation to be made by a police officer or by such other person as he thinks fit, whether it appears that the offence complained of his triable exclusively by the Court of Session], is subject to the clarification of the legal position in Lakshminarayana Reddy (117 supra). The functional integrity of the Magistrate in such cases is thus more onerous and of an exacting standard.
Sec.203 enables the Magistrate, on considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) u/Sec. 202, if of the opinion that there is no sufficient ground for proceeding, to dismiss the complaint on recording reasons for such dismissal. The expression sufficient ground in Sec. 203 as also later in Sec. 209 (Chapter XVI) connotes satisfaction that a prima facie case is made out against the accused from the evidence of the witnesses entitled to a reasonable degree of credit and not that there is sufficient ground for the purpose of convicting. The consideration of the merits of the case at this stage is only to determine whether there are sufficient grounds for proceeding further. The mere existence of some ground which would be material in deciding whether the accused should be convicted or acquitted, does not generally indicate that the case must necessarily fail. Such ground may indicate however the need of proceeding further in order to discover the truth upon a full and proper investigation – D.N. Bhattacharjee vs State of W.B.([121][121]).
In Charan Singh vs Shanti Devi([122][122]) it was held; that if (in a case triable by the Court of Session), the Magistrate after enquiry of the complaint comes to the conclusion that the complainant’s case cannot be believed and it is not proper to issue process to the accused, can dismiss the complaint.
While the Magistrate is competent to enquire into the prima facie case for the purpose of committal and, is required to examine the material on record to be satisfied that the offence is one which is prima facie exclusively triable by the Court of Session, he cannot embark upon a detailed enquiry. In a case exclusively triable by the Court of Session, the Magistrate in his preliminary enquiry under Secs. 203/204 has only to see whether there is prima facie evidence. He would be exceeding his jurisdiction if he undertakes to weigh the evidence meticulously; he is not required to balance and weigh the evidence, as though in a trial, for the purpose of committal. His opinion must be formulated not upon the sufficiency or otherwise of the material – Kewal Krishan vs Suraj Bhan([123][123]); Saleha Khatoon vs State of Bihar([124][124]); State of Karnataka vs Shakti Velu([125][125]); Kannan vs R.A. Varadarajan([126][126]); Kavita vs State([127][127]).
On an interactive analysis of Sections 200 to 203 Cr.P.C. it is thus clear that a Magistrate may dismiss a complaint u/Sec. 203, (a) if he upon the statement made by the complainant reduced to writing u/sec. 200, is satisfied that no offence has been committed; (b) if he clearly distrusts the complainant’s statement; and (c) if he distrusts the complainant’s statement but not sufficiently so, to warrant him to act upon it, in which event he may direct a further enquiry as provided u/Sec. 200 and may either conduct the enquiry himself or depute a subordinate officer to conduct it.
It is however mandatory that the Magistrate should record reasons for dismissing a complaint – Chandra Deo v Prokash Chandra([128][128]); K. Prabhakar Rao v State of A.P.([129][129]).
The decisions in Balraj Khanna, Lakshminarayana Reddy, Sewakram Sobhani and Debendra Nath Padhi (104, 117, 105&110 supra) delineate the scope of Sections 190, 202 and 203 Cr.P.C., that at the stage of taking cognizance by the Magistrate; at the stage of directing investigation by the police u/Sec. 156(3) even on receiving a complaint or in exercising judicial discretion to dismiss a complaint (u/Sec. 203), it is only the material on record as forwarded along with the police report u/Sec. 173 or the material discerned from the complaint made to the Magistrate or from the statements of the complainant and the witnesses (if any) that could be considered either for taking cognizance (u/Sec. 190); for dismissal of the complaint (u/Sec. 203); or even for committal u/Sec. 209 Cr.P.C. At none of these stages is the accused entitled to assert or establish defense or to produce any document or material in support of any such defense, either for the purpose of forestalling the taking cognizance of the offence; for dismissal of the complaint; or for avoiding committal of the case (where the offence is exclusively triable by Court of Session).
It however requires to be noticed that even where the first information contains a narrative asserting a self-defence justification, though such justification/defense cannot be asserted by the accused either at the stage of taking cognizance, dismissal of the complaint or committal; the general criminal law principle as to the initial investigatorial or prosecutorial burden is not eclipsed.
We therefore hold that in exercising judicial discretion whether to take cognizance (Sec.190) or whether the complaint should be dismissed (Sec.203); the Magistrate is required to consider whether the offence, either recorded in the FIR u/Sec. 154(1) or in the complaint discloses a prima facie case for proceeding further. The only relevant material at that stage, which should guide the discretion of the Magistrate is the FIR, the Police report u/Sec. 173(2), the complaint and the statements of the witnesses (if any) (examined on oath u/Sec.200), and the product of the inquiry (u/Sec. 202), as the case may be. This is the narrow locus of judicial consideration.
(F) Chapter XVI sets out the procedure relating to the commencement of proceedings before a Magistrate. Sec.204 deals with the procedure relating to issue of process; Sec.205 with the discretion of the Magistrate to dispense with the personal appearance of the accused; Sec.206 the procedure for special summons in case of a petty offence; Sec.207 with the requirement of supplying to the accused a copy of the police report and other documents where proceedings are instituted on a police report; and Sec.208 with the requirement of supply of copies of statements and documents to the accused in other cases, triable by Court of Session.
Sec.209 enjoins that in cases instituted on a police report or otherwise and the accused appears or brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit, after complying with the provisions of Secs. 207 or 208 as the case may be, the case to the Court of Session; (c) send to that Court (of Session) the records of the case and the documents and articles, if any, which are to be produced in evidence; and (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
On the Magistrate committing the case u/Sec. 209 to the Court of Session, the bar under Sec. 193 Cr.P.C. is inapplicable and the Court of Session is invested the complete and unfettered jurisdiction of the court of original jurisdiction, to take cognizance of the offence including the authority to summon the person or persons whose complicity in the commission of crime can prima facie be gathered from the material available on record – Kishun Singh vs State of Punjab([130][130]).
If the case is exclusively triable by the Court of Session, the Magistrate cannot discharge the accused. In fact Chapter XV Cr.P.C. which sets out the procedure respecting complaints to Magistrates does not envisage nor confer power to discharge the accused. The Magistrate is merely enabled to dismiss a complaint if he is of the opinion that there is no sufficient ground for proceeding and after recording in brief the reasons for so dismissing. In a case triable exclusively by the Court of Session it is that court (Chapter XVIII – Section 227 Cr.P.C.) which may discharge the accused while recording reasons for so doing.
Conclusions on Issue No.2 :
On a consideration and analyses of the relevant provisions in Chapters XII and XIV to XVI of Cr.P.C., and in the light of the curial explication of the principles governing the scope of investigation and the role, jurisdiction and authority of the Magistrate in the matter of taking cognizance of the offence on a final report of the police forwarded to him; the jurisdiction and the contours of the judicial discretion of the Magistrate to dismiss a complaint or to record a committal as the case may be, we hold that the opinion recorded by the Investigating Officer in the final report (drawn up and forwarded u/Sec. 173 Cr.P.C. on whether any offence appears to have been committed and, if so, by whom), is but an opinion, of the Investigating Officer and does not bind the Magistrate in the exercise of the discretion to take cognizance u/Sec. 190 Cr.P.C. The Magistrate [notwithstanding the opinion of the Investigating Officer (that no cognizable offence appears to have been committed; or that one or more or all of the accused are not culpable; or even the opinion that the investigation discloses that the homicide [of civilian(s) in a police encounter] is non-culpable on account of a legitimate exercise by the police of the right of private defence)], shall critically examine the entirety of the evidence collected during the investigation while exercising judicial discretion to ascertain whether the opinion in the final report commends acceptance; or that there is no sufficient evidence or prima facie case to justify the accused being put on trial; or even that the facts set out in the final report disclose commission an offence and the product of the police investigation does not justify the plea of private defence - in which event the Magistrate may take cognizance of the offence. In short, we hold that the opinion recorded in the police report forwarded u/Sec. 173(2) Cr.P.C. is not conclusive but is subject to the exercise of judicial discretion by the Magistrate. We hold on issue No.2 accordingly.
Issue No.4: Whether the State, the police establishment or a police officer is immune from an obligation to disclose the identity of a Police Officer who had committed an act causing the death of a person, to enable an investigating officer or any person aggrieved by such death to effectively seek justice; and if so, in what circumstances or contexts?
This issue in its fullness does not now survive for resolution. As earlier indicated in this judgment, a Full Bench of this court by the order dated 4.12.2007 referred W.P.No. 15419 of 2006 along with the interlocutory applications therein (WPMP Nos. 29843 & 31250 of 2007) to be heard and decided by a Larger Bench of 5 Judges on certain issues including:
(A) What is the remedy in law available to a complainant who is unaware of the identity of the individual police officer(s) whose firing has caused death of a person due to bullet injury?
(B) Whether the Executive is bound to disclose or can claim privilege from disclosing the identity of the said police officer(s)?
(C) In selectively refusing to disclose the identity of such police officer(s), is the Executive not exercising the judicial power of the State and conclusively to judge for itself whether the officer(s) concerned had acted in self-defense? and
(D) Whether such usurpation of the judicial power of the State by an executive act by claiming privilege, results in deprivation of life and personal liberty otherwise than in accordance with the procedure established by law, violating Art. 21 of the Constitution?
The above issues arose in the context of the majority judgment of a Full Bench of this court in APCLC case (6 supra). At para-59 (of the report) the Full Bench majority recorded:
(59) The death of an individual, who is found dead in an incident of exchange of fire, between himself or a group of which he is a member, on the one hand, and the police party on the other hand, can certainly result in registration of an FIR, if any complaint is made, attributing specific acts to any individual, be it police or outsider as causes of death. The fact that a person was found dead, without there being a specific complaint, cannot, by itself, result in registration of a case, against any individual. (emphasis)
Again (at para 60 of the report) the majority held that … it is too difficult to accept the proposition, that as soon as the death of an individual is noticed, it must invariably result in registration of a crime under Section 302, particularly when no complaint is made attributing any specific act against any person. (emphasis)
In conclusion the majority held if a specific complaint is made, alleging that any identified individual had caused a death of such person, an independent FIR shall be registered in it, if it satisfies the law laid down by the Supreme Court in State of Haryana vs Bhajan Lal. (emphasis)
In W.P.No. 15419/06 the petitioner filed an application (WPMP No. 10579/07) for a direction to the respondents 3, 5 and 8 therein, to reveal the names of members of the District Police Special Party who participated in the offensive launched against the Maoists and killed 8 of them in the encounter on 23.7.2006. A Division Bench of this court which had initially heard this writ petition, by the order dated 30.7.2007 rejected this application since the petitioner did not lodge such a request under the Right to Information Act, 2005 (‘RTI Act’). In this order this court observed that if the petitioner’s application is not attended to or replied by the concerned authority within a reasonable time, the petitioner could seek the intervention of this court.
The General Secretary of the petitioner addressed a letter dated 1.8.2007 to the Public Information Officer, the A.P. Information Commission (‘APIC’) seeking the names, designations and other particulars of the police officers involved in the encounter on 23.7.2006. The APIC in turn, by its letter dated 4.8.2007 transferred the application dated 1.8.2007 to the 5th respondent (in W.P.No. 15419/07) u/Sec. 6(3) of the RTI Act. On 15.8.2007 the petitioner addressed, inter alia the Deputy Superintendent of Police (I.O. in Cr.No. 30/06 of PS Y.Palem) seeking the names, designations and other particulars, in reiteration of the earlier letter dated 1.8.2007 addressed to the APIC. The 5th respondent by a letter dated 30.8.2007 (addressed the petitioner) declined disclosure of the information sought. To the extent relevant and material the 5th respondent’s rejection reads as under:
It is hereby informed that the Cr.No. 30/06 of Y.Palem Police Station is being investigated by the Sub-Divisional Police Officer, Gurajala. The crime is under investigation and the entire CD file is with him. If any information is furnished in connection with the mater under the investigation it would impede the process of investigation, apprehension and prosecution of offenders. There by the information requested by you could not be furnished by me, as I am not the investigating officer.
Against this order, an appeal will lay u/s 19 of Right to information Act, 2005 before the Inspector of Police, Yerragondapalem circle with in 30 days of receipt of this order.
The petitioner filed an application (WPMP No. 29843/07) on 26.10.2007. This application proceeded on the assumption that the request of the petitioner for the information and particulars of the involved police officers has not yet been responded to despite an application under the RTI Act. A direction was sought in this application (to the respondents 3,5 and 8), to reveal the names of the 15 members of the District Police Special Party who participated and killed 8 members in the encounter on 23.7.2006 and further to array those police officers as respondents 9 to 23; the Sub-Inspector of Police and PC Nos. 430 and 1843 of Y.Palem PS and the Addl. Superintendent of Police (Operations) Markapur, Prakasam District, as respondents 24 to 27 (in W.P.No. 15419/06).
The 5th respondent, the S.H.O., Y.Palem Police Station. Filed a counter affidavit to WPMP No. 29843/07, on 31.10.2007. Para-3 of this counter asserts that the application was rejected by the 5th respondent on 30.08.2007 (a copy of the rejection was enclosed to the counter). In the light of the rejection, the 5th respondent sought rejection of the WPMP.
Interestingly, the 1st respondent – the Principal Secretary to Government, Home Department, filed WPMP No. 31250/07 claiming privilege (U/Sec. 123 of the Indian Evidence Act), to withhold the information sought by the petitioner, as to the disclosure of the names, which do not form part of any published record as that would adversely affect the affairs of the State (security and law and order). In para-6 of the affidavit accompanying WPMP No. 31250/07, the 1st respondent claimed: that the Petitioner has been trying to get the list of the Police personnel who participated in the exchange of fire with a view to file false criminal complaints against them with the main objective of intimidating them and in order to demoralize/harass and to deter them from discharging their lawful duty of preventing/curbing the unlawful activities of C.P.I. Maoists.
In view of the claim of privilege by the State when the writ petition (15419/07) came up for further hearing, a Division Bench of this court by the order dated 30.11.2007 referred the issue to be heard by a Full Bench, in particular having regard to the claim of privilege by the State. The Full Bench, as already recorded, made the reference on 4.12.2007 to this Bench.
All the learned counsel appearing in the mater, whether for the several petitioners or the respondents including the learned Advocate General for the State and Sri Lalit for the AP Police Officers Association are in agreement that the majority opinion of the learned Full Bench in APCLC (6 supra) to the extent the Bench held that if any complaint is made, attributing specific acts to any individual, be it police or outsider as causes of death can certain result in registration of a FIR, is a view that is patently erroneous and wholly inconsistent with the relevant provisions of the Cr.P.C. Sri Padmanabha Reddy, the learned Amicus Curiae., has comprehensively supported this view. It is the clear and unambiguous submission of all the learned counsel that u/Sec. 154(1) Cr.P.C. what all is needed to be conveyed to the officer in charge of a Police Station is information relating to the commission of a cognizable offence; it is not necessary that such information should contain the names of any accused. Similarly, in respect of a private complaint u/Sec. 200 Cr.P.C., the Magistrate is bound to entertain a complaint even though the complaint does not enumerate the names of any of the perpetrators. The learned counsel are agreed on the legal position that even u/Sec. 190 Cr.P.C. the Magistrate takes cognizance of an offence and not of any offender. The contrary view spelt out in the majority opinion in APCLC (6 supra) is patently erroneous and inconsistent with the relevant provisions of the Cr.P.C., is the conjoint submission.
We are in accord with the submission of the learned counsel for the respective parties on this interpretation of the provisions of Secs. 154(1), 190 and 200 Cr.P.C. We hold that for making a complaint under Chapter XV Cr.P.C. a complainant need not mention the names of any person who the complainant believes are involved in the commission of the offence complained of. On receiving such complaint and before proceeding to consider taking cognizance thereof, the Magistrate may refer the complaint to the jurisdictional police for investigation u/Sec. 156(3) Cr.P.C.- vide Mohd. Yousuf vs Smt. Afaq Jahan and Anr ([131][131]). On such referral the police shall register the information received from the Magistrate as FIR u/Sec. 154(1) and shall investigate u/Secs. 156/157 Cr.P.C. The procedure of investigation u/Sec. 157 Cr.P.C. inheres due and wholesome authority to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. (S. 157 Cr.P.C.).
We accordingly hold that the decision of the Full Bench majority in APCLC (6 supra) (that a complaint attributing a specific overt act to an identified person(s) alleging that such identified individual(s) had caused the death of such a person(s), is the condition precedent for registration of a FIR), does not represent the correct legal position. This conclusion of the APCLC majority is overruled.
The court declares that for the recording and registration of FIR u/Sec. 154 Cr.P.C. the information conveyed must relate to the commission of a cognizable offence. Even though such complaint does not enumerate the names(s) of any individual(s) as the perpetrator(s) of the offence nor does attribute any specific act against any person(s), the obligation to record the complaint and register FIR subsists and is non-derogable. We further declare that for entertainment of a complaint by the Magistrate u/Chpt. XV Cr.P.C. a complaint need neither enumerate the name of the perpetrator nor attribute any specific act to any person.
We have held (on issue No.1) that the officer in charge of a Police Station is bound to register the information received as to the death of a civilian consequent on a transaction involving exchange of fire with officers of the law enforcement, as FIR u/Sec. 154(1) Cr.P.C. and is further obligated to pursue investigation u/Sections 156/157 Cr.P.C.
In the analysis hereinbefore on issue No.4 we have concluded that a Magistrate shall entertain a complaint notwithstanding that the complaint does not attribute any specific act against any person and even if the complaint does not allege that any identified individual had caused a death (in the circumstances of the issues before us, of a civilian in a police firing). Neither Sec. 154(1) nor Sec. 200 r/w 190 Cr.P.C. require the information or the complaint as the case may be, to attribute any overt act to any individual including a police officer as a condition precedent for recording and registration of FIR u/Sec. 154(1) Cr.P.C. or for a Magistrate entertaining a complaint u/Chpt. XV Cr.P.C.
Where a complaint is made to a Magistrate u/Chpt. XV as already analysed supra (in relation to issue No.2) the Magistrate may take cognizance of the complaint u/Sec. 190 Cr.P.C. or before doing so may refer the complaint to the police for investigation (u/Sec. 156(3) Cr.P.C.).
Issue No.4 comprises two aspects: One facet of the issue is as regards the obligation of the State/police establishment/police officer to disclose the identity of police officer(s) who had caused the death of a person(s) in what is claimed to be an exchange of firing in an encounter, to enable any person aggrieved by such death to effectively seek justice. In view of our analyses and conclusion (on issue No.2) any person aggrieved by the death of a civilian in a police encounter could effectively seek remedy under the provisions of Cr.P.C. even without having to spell out in the information conveyed to the Police Station or in a complaint to the Magistrate (u/Sec. 154(1) or 200 Cr.P.C. as the case may be), the names of the perpetrators and without the need to attribute any specific overt act to any individual.
In the light of such declaration of the legal principle, the issue whether the State/police establishment/police officer enjoys any immunity from the obligation to disclose the identity does not really survive for consideration. It is an established principle of curial discipline that the court refrains from deciding an issue, in particular an issue involving broad normative principles, unless strictly necessary for resolution. We adhere to this venerable principle and decline to pronounce on this facet of issue No.4.
Sri Tarakam, Sri Kannabiran, learned Senior Counsel, the other counsel for the several petitioners and the learned counsel for the Common Wealth Human Rights Initiative (R-11 in W.P.No. 15419/06) have urged that the claim of privilege by the State (u/Sec. 123 of the Indian Evidence Act), is extravagant and misconceived. Reliance is placed on several authorities including the decisions in Henry Greer Robinson vs State of South Australia ([132][132]); The State of U.P. vs Raj Narain & Ors ([133][133]); and S.P. Gupta vs Union of India & Anr.([134][134]), for commending rejection of the claim of privilege by the State .
It is not necessary to pronounce on the State’s claim of privilege in the facts and circumstances. In view of our decision on issues Nos. 1 to 3, we do not propose to analyze the authorities cited and determine whether the claim of privilege asserted by the State is well founded or misconceived.
The second facet of issue No.4 is; whether the State or any of its agents inhere immunity from the obligation to disclose the identity (of a police officer who had committed an act causing death of a person), to an Investigating Officer. While considering issue Nos. 1 to 3 we have considered the provisions of Chapters XII and XIV to XVI Cr.P.C. and declared – (i) that the information conveyed to the officer in charge of a Police Station as to the occurrence of the death of a person in an exchange of fire with the police (even where such information is conveyed by a police officer while claiming that the death was consequent on the exercise of right of private defence by the police), must be recorded and registered as FIR; and (ii) that an investigation u/Sec. 157 Cr.P.C. shall be pursued.
In the course of the above analysis we have held, in fidelity to the legislative mandate of Sec. 157(1) Cr.P.C. that the procedure for investigation includes investigation into the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Sec. 2(h) Cr.P.C. defines investigation to include all the proceedings under the Code for the collection of evidence conducted inter alia by a police officer.
Sec. 39 Cr.P.C. mandates that every person aware of the commission of any offence punishable under any of the sections of the IPC (specified in Sec. 39 Cr.P.C., including an offence punishable u/Secs. 302 and 304 IPC), shall forthwith give information to the police officer of such commission.
Sec. 52A IPC defines the expression ‘Harbour’ as including assisting a person by any means, whether of the same kind as enumerated in Sec. 52A or otherwise, to evade apprehension. Secs. 191 to 193 IPC define the giving of false evidence, fabricating false evidence and specify the punishment for giving or fabricating false evidence. Sec. 201 IPC spells out that whoever knowing or having reason to believe that an offence has been committed, causes the evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; shall be punishable for varying terms (specified in Sec. 201), dependent upon the nature of the substantive offence in respect of which the causing of disappearance of evidence or giving of false information to screen the offender, has occurred.
Sec. 202 makes an intentional omission to give information of offence by a person bound to inform, culpable and spells out the punishment therefor. Sec. 203 declares to be an offence and makes punishable the giving of false information respecting an offence committed. Sec.204 renders culpable the destruction of a document or electronic record to prevent its production as evidence. Sec. 216 IPC specifies inter alia that whenever a public servant, in exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished as specified. Different terms of imprisonment are specified in Sec. 216 IPC, in proportion to the gravity of the offence for which the person is ordered to be apprehended. Sec. 217 IPC spells out as culpable the conduct of a public servant disobeying the direction of law with intent to save a person from punishment. Sec. 221 IPC enjoins to be an offence, the intentional omission by a public servant to apprehend or keep in confinement any person charged with or liable to be apprehended for an offence or the aiding of such person in escaping or attempting to escape from such confinement.
The learned Advocate General while fairly conceding the legal position that the State may claim no privilege for disclosure of the name(s) of the police officer(s) to the Magistrate, did not clearly spell out the stand of the State with regard to the obligation to disclose to the Investigating Officer (pursuing investigation u/Sec. 157 Cr.P.C.) the names of police officer(s) who are involved in or had participated in the transaction of firing, which resulted in the death(s). However, the statutory obligation of the Investigating Officer qua sec. 157 Cr.P.C. to investigate the facts and circumstances of the case postulates a corollary obligation of any person (reinforced by the provisions of Sec.39 Cr.P.C.) to furnish information to effectuate in full measure the process of investigation u/Sec. 157 Cr.P.C. The several provisions of the IPC, some of which have been illustratively referred to hereinabove, also place the matter beyond any disputation; that the State, its agents, instrumentalities or the officer(s) of the State are bound to extend unstinted cooperation and to provide all information and unhindered access to the official records, to the Investigating Officer. Withholding of any relevant information by any public servant, from an Investigating Officer, which has the impact of impeding or hindering the investigation of an offence registered u/Sec. 154 Cr.P.C., would be culpable conduct under several provisions of the IPC, some of which have been referred to supra.
On the above analysis the conclusion is compelling that the State/the police establishment/a police officer or any public servant has no manner of immunity whatsoever from the obligation to disclose to the Investigating Officer the identity of a police officer who had caused the death of a person (in a firing by the officers of the law enforcement). This aspect of issue No. 4 is answered accordingly.
The Full Bench in APCLC (6 supra), per majority, declared that viewed from any angel, registration of a case, u/Sec.302, straight away against the police officials in such cases, does not accord with the procedure prescribed under the Cr.P.C” (para-71). To support this declaration the majority recorded several reasons: (A) that there is a discretion u/Sec. 154(1) Cr.P.C., conferred on the officer in charge of the Police Station whether to register a complaint; (B) that in the absence of a complaint attributing specific acts to any individual as to the cause of death, no FIR need be registered; (C) that in view of the availability of an inquest procedure u/Sec. 176 Cr.P.C., that procedure could be gainfully adopted; (D) that the police being an agency of the State and the administration of criminal justice being almost entirely dependent upon the participation and assistance by the police, the police official may not be treated on par with the ordinary citizens, in the context of testing their acts and omissions, in the course of discharge of their duties; and (E) that the earlier decisions (of Division Benches) of this court, in P.Narayanaswami vs S.I. of Police ([135][135]), K.G. Kannabiran vs Chief Secretary ([136][136]), A.Anasuya vs Station House Officer, Tadicherla ([137][137]), do not represent the correct legal position, as the attention of the court does not appear to have been drawn to the provisions of Sec. 176 Cr.P.C.
The Full Bench majority in APCLC (6 supra) conceived illustrations from the attack on Parliament; an extremist killing in some village in the State; and an act of arson on a passenger train by persons claiming to belong to an extremist organization where about 50 persons died. The majority reasoned that in these instances if the intervention of the police and the killing of the extremists while exercising legitimate law enforcement duty were to be registered as FIR setting the criminal law and the investigation into motion, the consequences would be disastrous.
The APCLC (6 supra) majority concluded that – (i) an independent FIR shall be registered only on a specific complaint made alleging that any identified individual had caused death on account of bullet injuries in an encounter with the police, if the complaint satisfies the law laid down in Bhajan Lal (7 supra); (ii) in the absence of any such complaint the procedure u/Sec. 176 Cr.P.C. shall be followed without prejudice to any investigation that may be undertaken by the police; and (iii) that the judgment (of the Supreme Court) in People’s Union for Civil Liberties vs Union of India (PUCL) (8 supra) does not represent the correct legal position.
In view of our analyses and conclusions on issues Nos. 1 to 3 we hold and declare that the conclusions of the Full Bench majority in APCLC (6 supra) do not represent the correct legal position; that the earlier decisions of the Division Benches in Narayanaswamy, Kannabiran and Anasuya (135, 136&137 supra) and the dissenting opinion in APLC are in conformity with the law as declared in this judgment; and that it is not within the province of this court to declare the judgment of the Supreme Court in PUCL (8 supra) as not representing the correct legal position.
The illustrations referred to in the Full Bench majority and the assumptions drawn therefrom are also with respect, erroneous. Providing security and protection to the Parliament, the Council of Ministers, the Members of Parliament and others participating in the session in the Parliament is a legitimate function of the police and if the police resorted to firing at terrorists in order to save lives and property, that would surely constitute a legitimate exercise of the right of private defense, if the imminence, gravity and proportionality standards are satisfied. The APCLC Full Bench majority’s conclusion that since the terrorists did not intend to attack the police who fired on them, if a case were registered against police personnel for having caused the death of terrorists in the Parliament attack, they would be exposed to an almost certain conviction for the offence u/Sec. 302 IPC, is an assumption that is at clear variance with the law. Illustrations by the Full Bench majority of an extremists killing in a village in the State or of arson of a passenger train by extremists’ organization, are also non- sequitor, for reason alike.
In PUCL (8 supra) in Manipur, a disturbed area with a considerable component of terrorists activity affecting public order and even the security of the State, two persons along with some others were seized by the police from a hut, taken a long distance away in a truck, and shot there. The Apex Court (per B.P.Jeevan Reddy,J) observed: If the police had information that terrorists were gathering at a particular place and if they had surprised them and arrested them, the proper course for them was to deal with them according to law. “Administrative liquidation” was certainly not a course open to them. (emphasis)
The PUCL observation above, represents the binding standard and with respect, wholly accords with the balancing standards (between liberty and authority), propounded by Robert Jackson, J in American Communications Association (5 supra).
In Prakash Singh and Ors vs Union of India and Ors ([138][138]) the Supreme Court issued directions to the Central and State Governments to comply with a set of seven directives that delineate practical measures to kick-start police reform. The 6th directive was to set up an independent Police Complaints Authority at the State and District level to look into the public complaints against police officer(s) in cases of serious misconduct including custodial death, grievous hurt or rape in police custody. It is not known as to what is the State’s response to this directive nor the extent of State’s compliance with it.
When human life is extinguished as a consequence of Executive action, review and accountability of the State action we consider, is a constitutional necessity.
The Report of the Independent Commission on Policing for Northern Ireland spells out the several aspects to accountability in policing. According to this report: there is democratic accountability, by which the elected representatives of the community tell the police what sort of service they want from the police, and hold the police accountable for delivering it. There is transparency, by which the community is kept informed, and can ask questions, about what the police are doing and why. There is legal accountability, by which the police are held to account if they misuse their powers. There is financial accountability, by which the police service is audited and held to account for its delivery of value for public money. And there is internal accountability, by which officers are accountable within a police organization. All of these aspects must be addressed if full accountability is to be achieved, and if policing is to be effective, efficient, fair and impartial ([139][139]).
Independent over-sight bodies to augment Government and internal accountability systems with external or non-police oversight mechanisms have been set up in several jurisdictions across Europe, Africa and Canada. Such systems are to complement existing mechanisms and together to create a web of accountability from which it could be increasingly difficult for police misconduct to escape without consequences. Example of such bodies are the Independent Police Complaints Commission and the Police Integrity Commission, New South Wales; The Independent Complaints Directorate, South Africa; The Police Ombudsman in Northern Ireland; the Independent Police Complaints Commission established pursuant to the report of the inquiry by Lord Scarman and Stephen Laurence Inquiry, 1999.
Among the non-binding but international standards may be mentioned the United Nations 1979 Code of Conduct for Law Enforcement Officials; and the United Nations Basic Principles on the Use of Force and Fire Arms by Law Enforcement Officials adopted by the 8th United Nations Congress on the Prevention of Crime and Treatment of Offenders (at Havana, Cuba, during 27th August to 7th September 1999). The United Nations principles on the Effective Prevention and Investigation of extra-legal, arbitrary and summary executions, adopted on 24.05.1989 by the Economic and Social Council Resolution 1989/65 enumerate potent (though non-binding) standards that list out the regime of investigative procedures to be followed. In 1997 pursuant to the Vienna Declaration and Programme of Action, a set of Principles were drafted by the United Nations Commission on Human Rights to serve as guidelines to assist States in developing effective measures to combat impunity – The United Nations Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. The Principles were refined in 2005 to reflect contemporaneous developments in International law and practices. The principal goal of the raft of these principles is to provide for effective and enforceable remedies for the victim; and to uphold the public interest by deterring future violation.
We have referred to the evolution, organizational correctives and establishment of independent over-sight bodies in certain other jurisdictions by way of illustrating the trajectory and the dynamics of vibrant Human Rights Jurisprudence. The International conventions, best practices standards and principles are also referred to in the same context.
As pointed out by the Supreme Court in PUCL (8 supra) a Statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of International law. Our analyses of the provisions of IPC and Cr.P.C. leads us to the inference that accountability for executive conduct resulting in death of civilian(s) is ensured by a rigorous investigation, the neutrality and professionalism of such investigation reinforced by statutorily embedded judicial oversight. The relevant provisions of the IPC and Cr.P.C., the substantive and the procedural prescriptions of our criminal laws thus accord with the International Principles that mandate entrenchment of mechanisms for accountability of State actions that result in lethal consequences for civilians.
Before we proceed to record the summary of our conclusions, on the issues framed, and analysed, we deal with an abstract submission urged on behalf of the State. The learned Advocate General contended that the recurrent and regnant violence, the subversion of law and order and the challenge to the equilibrium of our civil society presented by Maoist/Naxalite activities constitute a grave crisis and challenge the sovereign authority of the State, legitimizing firm and resolute executive action. Interpretation of our laws must therefore accommodate the pragmatic demand of appropriate executive response to this crisis.
We recognize that the limitations of human foresight guarantee the eventual failure of any constitutional or legislative arrangement as an ordering principle of political experience. And insofar as emergencies expose those limits, they demonstrate the eventual contingency of all constitutional and legislated arrangements. Senator John Potter Stockton remarked (we recall this observation as it is appropriate in the context): Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy.([140][140]) It is worth reflecting that when temptation does appear, typically in the guise of an emergency; we must ask whether our commitment to constitutional maintenance demands that we honor the self-command expressed as limitations on governmental power in the constitutional and legal text, or surrender to the wish to be free of it.
An apparent assumption in the State’s argument, that our Constitution and the laws should accommodate all powers necessary to cope with the crises is that crises have beginnings and endings – that most crises are capable of resolution and that, upon their termination, the conditions and forms of constitutional government more or less return to normal.
John E. Finn perceptively observes: Few would be so foolhardy as to suggest that the workings of crisis government, particularly the flow of power to the executive, do not effect some permanent change in the ordinary patterns of constitutional government ([141][141]). Edward S. Corwin explained that post-crisis government may so little resemble pre-crisis government that the difference might, as in the case of United States following World War II, or after the New Deal amount to a constitutional revolution.([142][142])
The rule of law culture is a wonderfully complex and rich theory of political organization. Lord Bolingbroke made a classic statement on the meaning of constitutionalism. He observed that constitutionalism is a form of government conducted by fixed principles of reason directed to certain fixed objects of public good.([143][143]) The fixed principles of reason bind since, Lord Bolingbroke, formulated – the community hath agreed to be bound by them.
In a constitutional government there are substantive objectives (the fixed objects of public good), structural limitations, and procedural guarantees that limit the exercise of State power. Indeed, the concept of limited power, of restraints upon not only the exercise but also the proper object of power, is central to any understanding of constitutionalism and of a rule of law regime within it. ([144][144])
We have considered it appropriate to resonate to the abstract State claims to crisis management; with observations on the normative principles of constitutionalism and rule of law fundamentals. We say that core and critical social policy and governance choices, particularly involving rights to life and liberties must be expressed in legislative instruments. We need say no more.
The learned Advocate General, Sri K.G.Kannabiran, Sri Uday Lalit, and Sri Bojja Tarakam – learned Senior Counsel; and the other learned counsel for the several parties in the batch of cases before us, have presented the respective positions on the several critical issues that we have considered in this judgment, in considerable forensic detail and with commendable and painstaking effort. We record our gratitude to the learned counsel for the assistance rendered. We particularly place on record our gratitude to Sri C. Padmanabha Reddy, the learned Senior Counsel who assisted this court with clinical analyses and his usual fairness on the several inter-meshing substantive and procedural provisions and the relevant precedents.
Summation :-
To conclude, we hold:
(A) On issue No.1: That where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defense as the case may be, the first information relating to such circumstance (even when by a Police/Public Official; whether an alleged perpetrator is named or not) shall be recorded and registered as FIR, enumerating the relevant provisions of Law, (u/Sec. 154(1) Cr.P.C.) and shall be investigated (u/Sec. 156/157 Cr.P.C.).
(B) On issue No.2: That the existence of circumstances bringing a case within any of the Exceptions in the Indian Penal Code including the exercise of the right of private defense (a General Exception in Chapter IV IPC), cannot be conclusively determined during investigation. The opinion recorded by the Investigating Officer in the final report forwarded to the Magistrate (u/Sec. 173 Cr.P.C.), is only an opinion. Such opinion shall be considered by the Magistrate in the context of the record of investigation together with the material and evidence collected during the course of investigation. The Magistrate (notwithstanding an opinion of the Investigating officer, that no cognizable offence appears to have been committed; that one or more or all of the accused are not culpable; or that the investigation discloses that the death of civilian(s) in a police encounter is not culpable in view of legitimate exercise by the police of the right of private defense), shall critically examine the entirety of the evidence collected during investigation to ascertain whether the opinion of the Investigating Officer is borne out by the record of investigation. The Magistrate has the discretion to disregard the opinion and take cognizance of the offence u/Sec. 190 Cr.P.C.
(C) On issue No.3: That a magisterial enquiry (inquest) (u/Ss. 174 to 176 Cr.P.C.) is neither a substitute nor an alternative to the obligation to record the information as FIR and to conduct investigation into the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender (s) (u/Ss. 154(1), 156 and 157 Cr.P.C.). and
(D) On issue No.4: In view of the conclusions on issues Nos. 1 to 3 and in view of our declaration [that the information conveyed to the officer in charge of a Police Station (u/Sec.154(1) Cr.P.C.) or a complaint made to the Magistrate (u/Chpt. XV Sec. 200 Cr.P.C.), need not mention the name of the Police Officer(s) who the complainant believes is the perpetrator of the offence complained of], it is not necessary to pronounce on whether the State, the Police Establishment or a Police Officer has immunity from the obligation to disclose the identity (of a police officer who had committed an act causing the death of a person), to a person aggrieved by such death to effectively seek justice. Whether the investigating officer is required to disclose the names of the police officers who are involved in an operation resulting in civilian casualty when a request for such information is lodged by an individual, is an issue not within the spectrum of the issues falling for our determination herein. This aspect is left open. The obligation to disclose to the Investigating Officer the identity of the police officer(s) so involved, is however absolute and there is no immunity whatsoever from this obligation. Withholding of any information or material that impedes effective or expeditious investigation violates several provisions of the Indian Penal Code and the Criminal Procedure Code (pointed out in our analyses on this issue).
The reference is answered as above. No order as to costs.
Dated: 06th February 2009 ----------------------------------
LR Copy to be marked Justice Goda Raghuram
B/o
Pvsn/Pvks
-----------------------------------
Justice V.V.S. Rao
-----------------------------------
Justice R.Subhash Reddy
------------------------------------
Justice Ramesh Ranganathan
------------------------------------
Justice G.Bhavani Prasad
[1][1] K.S. Subramanian– Sage Publications, 2007, pp 139-140
[2][2] Psychologist: Harvard University; The decline of violence.
[3][3] Eric Hobsbawm – Globalisation, Democracy and Terrorism - Little, Brown – 2007.
[4][4] Alan M. Dershowitz – PREEMPTION –W.W.Norton & Co; 2006
[5][5] 339 U.S. 382 (1950)
[6][6] 2007(5) ALT 639
[7][7] 1992 Supp. (1) SCC 335
[8][8] (1997) 3 SCC 433
[9][9] (2006) 2 SCC 677
[10][10] (2006) 1 SCC 229
[11][11] (2007) 1 SCC (Crl) 193
[12][12] (2003) 7 SCC 749
[13][13] (2007) 6 SCC 171
[14][14] (1996) 11 SCC 582
[15][15] (2004) 7 SCC 768
[16][16] (2006) 2 SCC 677
[17][17] (2006) 4 SCC 359
[18][18] (2006) 5 SCC 733
[19][19] (2006) 1 SCC 229
[20][20] AIR 2008 SC 907
[21][21] (2001) 6 SCC 181
[22][22] (1979) 2 SCC 322
[23][23] (1999) 3 SCC 247
[24][24] (2004) 13 SCC 292
[25][25] (1992) 1 SCC 714
[26][26] 1988 Crl.L.J 223 Gauhati
[27][27] 1978 Crl.LJ. NOC 10. Gauhati
[28][28] 1987 (2) SCC 359
[29][29] AIR 1970 SC 940
[30][30] (1978) 2 SCC 424
[31][31] 82 Columbia Law Review (1982)
[32][32] Outlines of Criminal Law – 19th Edition p.36
[33][33] 2008, 117 Yale Law Journal, 1070
[34][34] An unpublished manuscript available at http://ssrn.com/abstract
[35][35] 9 Oxford Legal Studies, 285 (1989)
[36][36] 54 UCLA L. Rev. 117(2006)
[37][37] 40 American Jurisprudence, Second Edition – Homicide, S.135
[38][38] Policing a perplexed society - George Allen and Unwin publication, 1977
[39][39] AIR 1963 SC 612
[40][40] (1974) 4 SCC 764
[41][41] AIR 1962 SC 605
[42][42] AIR 1964 SC 1563
[43][43] AIR 1968 SC 702
[44][44] AIR 1970 All 51
[45][45] (1980) 2 SCC 218
[46][46] (2004) 9 SCC 257
[47][47] (2005) 9 SCC 705
[48][48] (2005) 10 SCC 358
[49][49] (2005) 12 SCC 657
[50][50] (2005) 10 SCC 94
[51][51] (2005) 13 SCC 323
[52][52] Corpus Juris Secondum Vol. 57, P.107
[53][53] (1970) 2 SCC 480
[54][54] (1996) 7 SCC 516
[55][55] 1981 (Supp) SCC 12
[56][56] (1971) A.C. 814
[57][57] (1995) 1 A.C. 482
[58][58] AIR 1964 SC 1850
[59][59] AIR 1966 SC 119
[60][60] (1975) 4 SCC 153
[61][61] (2006) 2 SCC 450
[62][62] (1991) 3 SCC 627
[63][63] (2003) 2 SCC 518
[64][64] 72 L.Ed. 944
[65][65] AIR 1950 SC 27
[66][66] (1978) 1 SCC 248
[67][67] (1981) 1 SCC 608
[68][68] (1989) 4 SCC 286
[69][69] AIR 1963 SC 1295
[70][70] (1978) 4 SCC 494
[71][71] (1978)4 SCC 104
[72][72] (1980) 1 SCC 81 and 93
[73][73] (1983) 2 SCC 104
[74][74] (1978) 3 SCC 544
[75][75] (1980) 3 SCC 526
[76][76] (1983) 2 SCC 68
[77][77] (1983) 2 SCC 96
[78][78] AIR 1986 SC 467
[79][79] (1974) 1 SCC 103
[80][80] 277 U.S. 438 (1928)
[81][81] 343 U.S. 169, 180 (1952)
[82][82] AIR 1945 PC 18
[83][83] AIR 1955 SC 196
[84][84] AIR 1960 SC 1113
[85][85] AIR 1968 SC 117
[86][86] (1980) 4 SCC 631
[87][87] (1977) 4 SCC 459
[88][88] (1989) 2 SCC 132
[89][89] (2006) 4 SCC 359
[90][90] (2008) 2 SCC 492
[91][91] AIR 1951 SC 207
[92][92] AIR 1959 SC 1118
[93][93] AIR 1963 SC 765
[94][94] (1978) 4 SCC 58
[95][95] AIR 1961 SC 986
[96][96] (1973) 3 SCC 753
[97][97] (1971) 2 SCC 654
[98][98] 42. British Journal of Criminology, 669 – autumn, 2002
[99][99] AIR 1962 SC 876
[100][100] AIR 1992 SC 1894
[101][101] 2003 Crl.L.J. 4414 (AP)
[102][102] 1998 Crl.L.J 4333
[103][103] (1972) 1 SCC 450
[104][104] AIR 1971 SC 1389
[105][105] (1981) 3 SCC 208
[106][106] AIR 1942 Nag. 117
[107][107] AIR 1966 SC 97
[108][108] (1970) 1 SCC 590
[109][109] (1971) 1 SCC 855
[110][110] (2005)1 SCC 568
[111][111] (1996) 9 SCC 766
[112][112] (1979) 4 SCC 274
[113][113] (1977) 4 SCC 39
[114][114] (2000) 8 SCC 239
[115][115] (2000) 2 SCC 57
[116][116] (1997) 4 SCC 393
[117][117] (1976) 3 SCC 252
[118][118] AIR 2000 SC 637
[119][119] (2000) 8 SCC 498
[120][120] 1990 Crl.L.J. 2525 (All)
[121][121] (1972) 3 SCC 414
[122][122] 2004 Crl.L.J. 2408 (All)
[123][123] 1980 (Supp) SCC 499
[124][124] 1989 Crl.L.J. 202 (Pat)
[125][125] 1978 Crl.L.J. 1238 (Kat)
[126][126] 1995 Crl.L.J. 3059 (Madras)
[127][127] 2000 Crl.L.J. 315 (Delhi)
[128][128] AIR 1963 SC 430
[129][129] 1995 Crl.L.J. 1736 (AP)
[130][130] (1993) 2 SCC 16
[131][131] 2006 AIR SCW 95
[132][132] AIR 1931 PC 254
[133][133] (1975) 4 SCC 428
[134][134] 1981 Supp. SCC 87
[135][135] 1996 (4) ALD 372
[136][136] 1997 (2) ALD 523
[137][137] 2001 (2) ALD 87
[138][138] 2006(8) SCC 1
[139][139] Chapter 5 – THE REPORT OF THE INDEPENDENT COMMISSION ON POLICING FOR NORTHERN IRELAND, 1999
[140][140] Debate over the Ku Klux Klan Act of 1871 – reported in The Congressional Globe – April 11, 1871.
[141][141] John E. Finn: Constitutions in Crisis – Political Violence and the Rule of Law – Oxford, 1991
[142][142] Corwin – Total War and the Constitution, p.172 – Alfred A. Knopf, 1947
[143][143] Lord Bolingbroke, Historical Writings – University of Chicago Press, 1972
[144][144] Charles H. Mcllwain – Constitutionalism: Ancient and Modern – Cornell University Press 1947.
* THE HONOURABLE SRI JUSTICE GODA RAGHURAM,
THE HONOURABLE SRI JUSTICE V.V.S. RAO,
THE HONOURABLE SRI JUSTICE R. SUBHASH REDDY,
THE HONOURABLE SRI JUSTICE RAMESH RANGHANATHAN
AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD
+ WRIT PETITION Nos: 15419 of 2006; 26358 of 1999; 7906 of 2000; 14475 of 2002; 440 of 2003 and 857 of 2008
% FRIDAY, THE SIXTH DAY OF FEBRUARYTWO THOUSAND AND NINE
# A.P. Civil Liberties Committee (APCLC), Rep by its President, Mr. S.Subhash Chandra Bose, S/o S.Venkata Krishnaiah, R/o P.B.Street, Governorpet, Vijayawada, Krishna District & Others
... PETITIONERS
VERSUS
$ The Government of A.P., rep by its Principal Secretary, Home Department, Secretariat, Hyderabad, and Others.
... RESPONDENTS
! Counsel for the Petitioners: MR. BOJJA TARAKAM and Others
^ Counsel for the Respondents: THE ADVOCATE GENERAL and Others Sri C. PADMANABHA REDDY, AMICUS CURIAE
COMMON ORDER: (Per Hon’ble Sri Justice Goda Raghuram)
Competing interpretations of recurrent, contemporaneous events :
Since the inception of the naxalite movement in Andhra Pradesh in 1969, 551 police personnel were killed including one DIG, two S.Ps, five D.S.Ps; 16 Inspectors and 49 Sub-Inspectors. 2928 civilians were killed; public and private property worth hundred of crores of rupees was destroyed; the extremist groups indulged in mindless violence and committed brutal murders. The naxal violence increased since 1991. They deliberately ambush and attack police with sophisticated firearms and explosives. In order to create terror the Maoists are also targeting functionaries of ruling political parties and killing them brutally – (counter affidavit of the Director General of Police in W.P.No. 15419/06 including Annexures 2 and 7)
… the State Executive for the first time started extra-legal killing which is popularly known as Encounter since 1968 and as on today in the name of alleged encounter the State has snatched away lives of about 4000 people during the last four decades – (written submissions dated 4.3.2008 of Mr. V.Raghunath, Advocate for APCLC, in W.P.Nos. 7906/2000, 14475/02 and 440/03)
The lesson for the MHA (Ministry of Home Affairs) is thus clear: it should advise state governments that brutal repression is no answer to the Naxalite movement; that the Naxalite ideology must be fought politically; that Naxalite criminal actions must be dealt with under the existing criminal and human rights laws; and that Naxalite social base, which springs from exploitation, inequality and injustice must be countered by purposeful political and administrative action to implement the promises made in the Preamble and the Directive Principles of State Policy of the Constitution. Police repression is attractive and easy to adopt by a government armed to the teeth with paramilitary forces, equipment, firepower and mobility! However, police repression only goes to strengthen the Maoist thesis on the class character of the Indian State. It is counter-productive and helps to increase the mass base of the Naxalites, which arises out of the failure of the State to deliver the developmental goods as mandated by the Constitution –– Political Violence and the Police in India ([1][1]).
Steven Pinker observes: The most important and underappreciated trend in the history of our species: is the decline of violence. Cruelty as popular entertainment, human sacrifice to indulge superstition, slavery as a labor-saving device, genocide for convenience, torture and mutilation as routine forms of punishment, execution for trivial crimes and misdemeanors, assassination as a means of political succession, pogroms as an outlet for frustration, and homicide as the major means of conflict resolution – all were unexceptional features of life for most of human history. Yet today they are statistically rare in the West, less common elsewhere than they used to be, and widely condemned when they do occur.([2][2])
According to the eminent historian Eric Hobsbawm: The twentieth century was the most murderous in recorded history. The total number of deaths caused by or associated with its wars is estimated at 187 million, the equivalent of more than 10 percent of the world’s population in 1913. ---- At the start of the twenty-first century we find ourselves in a world where armed operations are no longer essentially in the hands of governments or their authorized agents, and where the contending parties have no common characteristics, status or objectives, except the willingness to use violence.([3][3])
State action against terrorism (including the domestic variety), blurs legal, moral and ethical definitions of appropriate substantive and procedural rules of peacetime law-enforcement engagement under constitutional norms of governance on the one hand; and war on the other. War is also a species of conflict; it is supposed to take place primarily between sovereign states or, if they occurred within the territory of one particular state, between parties sufficiently organized to be accorded belligerent status by other sovereign states. Hobsbawm observes: In recent years, the situation has been further complicated by the tendency in public rhetoric for the term `war` to be used to refer to the deployment of organized force against various national or international activities regarded as anti-social - `the war against the Mafia`, for example, or the `war against the drug cartels`. Not only is the fight to control, or even to eliminate, such organisations or networks, including small-scale terrorist groups, quite different from the major operations of war; it also confuses the actions of two types of armed force. One – let us call them `soldiers` - is directed against other armed forces with the object of defeating them. The action of the other – let us call them `police` - sets out to maintain or re-establish the required degree of law and public order within an existing political entity, typically a state. Victory, which has no necessary moral connotation, is the object of one force; bringing to justice the offenders against the law, which does have a moral connotation, is the object of the other – (Hobsbawm – 3supra note 2, at pages 21, 22 – emphasis is supplied). The distinction, between war and peacetime law enforcement within the framework of a legal regime under a constitutional order is critical and an issue of profound significance for civil society.
Democratic regimes world over are experiencing a fundamental shift in the approach to controlling harmful conduct. The shift is from the traditional reliance on deterrent and reactive strategies and towards increasingly preventive and proactive strategies. The shift has clear and momentous implications in areas of human rights, criminal justice administration, and security – national and international, foreign policy and critically for civil liberties jurisprudence.
The conceptual shift in emphasis from a theory of deterrence to a theory of prevention influences and substrates actions that Governments take to control dangerous human behavior. These range from preventive warfare; proactive crime prevention techniques including phone tapping, stings, informers and moles; surgical, psychiatric or chemical methods for preventing sexual predation; racial, religious, ethnic or other forms of profiling; prior restraint on dangerous or offensive speech; use of torture or other extraordinary measures towards gathering intelligence considered essential to prevent imminent acts of terrorism; as also targeted killings of terrorists ([4][4]).
Executive and even judicial sanctions against life and liberty, it is axiomatic, must be explicitly spelt out in legislative authority. This is the essence of civilized and constitutional governance. In the context of our constitutional scheme and qua Article 21, the State shall not deprive any person of life or liberty except in accordance with the procedure established by law. Considered in the context of the several other fundamental values which substrate the Indian constitutional architecture, including those in Articles 14 and 19, it is beyond disputation that an executive agency of the State (including the police) is not authorized to deprive a person of his life without substantive legislative authority and in accordance with the procedure established by law. This non-derogable constitutional value and the concomitant executive and governance obligation could be preserved only by eternal vigilance towards maintaining the sanctity of life and liberty, effectuated and operationalised by relentless pursuit and administering of the sanctions enjoined by law, against depredation of life and liberty, by the unlawful conduct of any person, agency or instrumentality.
In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.
In this case, the Court is called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.
Robert Jackson, J., recorded a profound observation on the principles that must substrate the balancing between liberty and authority. The jurist said: The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court’s day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. These are the competing considerations involved in judging any measures which government may take to suppress or disadvantage its opponents and critics. -- American Communications Association v. Douds([5][5]).
Summary of the factual matrix of the cases on board:
W.P.No. 15419 of 2006 is instituted by the Andhra Pradesh Civil Liberties Committee (for short ‘the APCLC’) for a direction to the concerned police to register a crime into the offence of killing of eight (8) Maoist naxalites in an alleged encounter that occurred on 23-07-2006 in the Nallamala Forest near Darboina Penta and Nekkanti Palutla villages of Yerragondapalem mandal, Prakasham District, by registering a case under Section 302 of the Indian Penal Code, 1860 (for short ‘the IPC’) against the police personnel who participated in the alleged encounter; to initiate proceedings for their prosecution; to call for all the records with regard to the crime registered on this encounter; and to pass such other order or orders as may be deemed fit and proper in the circumstances of the case.
The sister of one of the deceased Rajitha @ Shyamal filed W.P.No. 857 of 2008 in respect of the same incident as is covered by the above writ petition. The petitioner seeks disclosure of the identity of 15 members of District Special Police, S.I and P.C. Nos. 430 and 1843 of Yerragondapalem P.S. and a direction to register a case against the concerned police officers u/Sec. 302 IPC in view of their involvement in the death by encounter of petitioner’s sister and 7 others.
W.P.No. 26358 of 1999 is filed for a declaration that the inaction of the respondents Nos. 3 and 6 in proceeding under law against the concerned Police officers of the 1st respondent P.S. (for having opened fire without provocation thereby severely injuring the petitioner’s husband on 15.6.1999 evening at Gajasingavaram, Gambhirraopet Mandal, Karimnagar District) and failing to take financial and other responsibility for the medical care and well being of the injured, is arbitrary and illegal; for a direction to the 6th respondent to provide adequate medical treatment; for compensation in an amount of Rs. 2 lakhs towards damages and costs of the medical expenses incurred; and for a further direction to the respondents 3 and 6 to prosecute the concerned police personnel of the 1st respondent P.S. in accordance with law.
W.P.No. 7906 of 2000 also is by the APCLC for preservation of the bodies of the persons killed in an encounter that occurred in Kaukonda Hills, Parkal Mandal, Warangal District; for handing over the bodies to the family members after identification; and for a direction to register a crime u/Sec. 302 IPC.
W.P.No. 14475 of 2002 is again by the APCLC to direct the 6th respondent to register a case u/Sec. 302 r/w Sec. 34 IPC against the respondents 1 to 5; direction to the State (R-7) to entrust the investigation in the said case to the C.B.I. (R-18) in relation to the death in encounter of one Durga Prasad @ Pilli Prasad at Vijayawada on 7.6.2002; and for suitable compensation to the family members of the deceased. The deceased Durga Prasad was arrested by the Vuyyur Town Police on 19.5.2002 in connection with Cr.No. 75/02 alleging his involvement in the murder of Sirikonda Venkanna. According to the version of the State during the course of investigation in Cr.No. 75/02 Durga Prasad was perceived to be concerned with Cr.No. 161/02 for the death of one Peyyala Ramu. He was taken into custody in respect of that crime too. While in police custody and in the early hours of 5.6.2002 when the accused Durga Prasad was being escorted out of the police lock up for answering calls of nature he escaped and Cr.No. 444/02 was registered against him. On 7.6.2002 during the efforts to trace the absconder Durga Prasad and on information the police party proceeded towards Gunadala Railway Station. On the night of 8.6.2002 the police found two persons consuming liquor. On questioning the identity of the two persons, one escaped under the cover of darkness and the other attacked the Inspector with a knife and inflicted bleeding injuries. The S.I. fired in private defence resulting in instantaneous death. The deceased was identified as Durga Prasad. Thereupon Cr.No. 448/02 was registered under Sections 332, 307 and 100 r/w 34 IPC and Sec. 134 Cr.P.C. and investigation taken up.
W.P.No. 440 of 2003 is by the APCLC for preservation of 6 bodies killed in two different alleged ‘fake encounters’ occurred on 5.1.2003 and 6.1.2003 within the jurisdiction of the respondents 1 and 2 P.S; to direct post mortem by a team of forensic doctors duly videographed; to hand over the bodies to the family members; and to register a case u/Sec. 302 IPC against the Police Officers involved in the two incidents.
W.P.No. 15419 of 2006 (the lead writ petition) was admitted on 27-09-2006 and certain interlocutory directives were issued. By way of W.P.M.P.No.20579 of 2007 the petitioner sought a direction to the respondent Nos. 3, 5 and 8 to reveal the names of the members of the police special party who participated in the operations that resulted in the death of eight (8) Maoist Naxalites on 23-07-2006. This Court by an order dated 30-07-2007 rejected this application on the ground that the petitioner had made no such request to the concerned authority under the Right to Information Act, 2005 (for short ‘the Information Act, 2005’).
The petitioner submitted an application on 01-08-2007 to the 3rd and 5th respondents and the Deputy Superintendent of Police, Gurajala, Guntur district, the Investigating Officer in Cr.No. 30 of 2006 for particulars of the police officers who participated in the encounter. The 5th respondent who is the designated Information Officer under the Information Act 2005 rejected the application on 30-08-2007. The petitioner thereupon filed W.P.M.P.No. 29843 of 2007 for a direction to the respondents to reveal the names of the police officers. In response thereto, the first respondent-State filed W.P.M.P.No.31250 of 2007 claiming privilege under Section 123 of the Indian Evidence Act regarding disclosure of names, on the ground that it would adversely affect the security, law and order in the State.
A Division Bench of this Court on 30-11-2007 directed the writ petition to be listed before a Full Bench having regard to the issues raised in the writ petition as also the claim of privilege by the State.
The Full Bench by its order dated 04-12-2007 referred the writ petition along with the interlocutory applications therein (W.P.M.P.Nos. 29843 of 2007 and 31250 of 2007) to be heard and decided by a Larger Bench of five Judges.
Earlier, a Full Bench of this Court in A.P. Civil Liberties Committee vs State of A.P (APCLC) ([6][6]) had considered the issue regarding the nature of the action to be taken in the event of death of an individual in an encounter with the police and per majority recorded the following conclusions:
“(a) No crime can be registered under Section 307 I.P.C. against a person killed in an encounter;
(b) Whenever a person is found dead out of bullet injuries in an encounter, with the police,
(i) If a specific complaint is made alleging that any identified individual had caused the death of such person, an independent F.I.R. shall be registered in it, if it satisfied the law laid down by the Supreme Court in State of Haryana and Ors vs Bhajan Lal and Ors ([7][7]),
(ii) In the absence of any complaint, the procedure prescribed under Section 176 of the Cr.P.C. shall be followed, without prejudice to any investigation that may be undertaken by the Police itself.
(iii) The judgment in People’s Union for Civil Liberties v. Union of India([8][8]) does not represent the correct legal position.”
In view of the privilege claim by the State (regarding disclosure of names), the (referring) Full Bench opined that the following five (5) issues and other related questions may necessitate reconsideration of the judgment in APCLC’s case (6 supra). The specific issues/questions referred to the Larger Bench are:
1) What would be the remedy available in law to a complainant who is unaware of the identity of the individual police officer whose firing had caused the death of a person due to bullet injuries?
2) Whether the Executive is bound to disclose or can it claim privilege from disclosing the identity of the said police officer?
3) In selectively refusing to disclose the identity of such police officer/s, is the Executive not exercising the judicial power of the State and conclusively to judge for itself whether the officer/officers concerned had acted in self-defence?
4) If so, would such usurpation of the judicial power of the State, by an Executive act of claiming privilege, not result in deprivation of life and personal liberty otherwise than in accordance with the procedure established by law violating Art. 21 of the Constitution of India?
5) Does the Executive have the power to determine to what extent the rights conferred by Part-III should be restricted or abrogated in their application to the police force of the State when such power is conferred exclusively only on the parliament under Art. 33 of the Constitution of India?
On 31-12-2007 while considering the draft issues presented on behalf of the petitioner, this Court granted liberty to all the parties to file their respective draft issues. After hearing the learned counsel for the respective parties and considering the draft issues, this Bench on 07-02-2008 framed the following issues for consideration:
ISSUES:
(1) 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, is there commission of a cognizable offence (including in an appropriate case the offence of culpable homicide); and whether the information relating to such circumstances requires to be registered as a First Information Report obligating investigation in accordance with the procedure prescribed by the Code of Criminal Procedure, 1973?
(2) Whether 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 be could conclusively determined during investigation; whether the final report submitted by the police officer to the Magistrate on completion of the investigation is conclusive or whether the existence of the circumstances coming within the exceptions requires to be determined only in appropriate judicial proceedings?
(3) Whether a magisterial enquiry (whether under the Code of Criminal Procedure or extant Police Standing Orders) into the cause and circumstances of death occasioned by an act of a police officer obviate the rigor of investigation and trial of such act?
(4) Whether the State, the police establishment or a police officer is immune from an obligation to disclose the identity of a Police Officer who had committed an act causing the death of a person, to enable an investigating officer or any person aggrieved by such death to effectively seek justice; and if so, in what circumstances or contexts?
Apart from W.P. 15419 of 2006, the other writ petitions were also tagged on to enable the parties in those writ petitions to present their points of view on the issues framed on 07-02-2008 for consideration by this Bench. We have already recorded in brief the reliefs sought in the above writ petitions.
Heard Sri Bojja Tarakam, the learned Senior Counsel for the petitioner in W.P.No. 15419 of 2006; Sri K. G. Kannabiran, the learned Senior Counsel for the respondent No.9 in this writ petition and for the petitioner in W.P.No. 440 of 2003; Sri V. Raghunath, the learned counsel for the petitioner in W.P.Nos. 7906/2000, 14475 of 2002 and 440 of 2003; Sri K. Balagopal, the learned counsel for the petitioner in W.P.No. 26358 of 1999, the learned Advocate General for the State for the official respondents in all the writ petitions; Sri U.R. Lalit, learned senior counsel for the 10th respondent; and Sri Trideep Pais and Ms. Nitya Ramakrishnan, learned Advocates for 11th respondent (in W.P.No.15419 of 2006). We have also heard Sri C. Padmanabha Reddy, learned Senior Counsel as Amicus Curiae.
Except in W.P. No. 26358 of 1999, in the other writ petitions the common factor is the occurrence of a death or deaths of individuals consequent on police firing. In W.P.No.26358 of 1999, the allegation is that on 15.6.1999 while the petitioner’s husband and an acquaintance were consuming beverage at the local toddy shop, without any provocation plain clothed policemen pounced upon the petitioner’s husband and started beating him. When her husband was running away from the shop, the police opened fire at him from behind, a bullet lodged close to the spine and he sustained a very grievous injury and had almost become paralyzed.
On behalf of the petitioners (in the generality of cases) it is alleged that the police firing was either wholly unjustified and without any provocation whatsoever or was an excessive and disproportionate employment of force and therefore constitutes conduct amounting to the cognizable offence of murder. The State, the Police establishment of the State and the State Police Officers Association contend per contra, that the police had to resort to firing only in response to firing in the first instance by the opposite party, in self-defense and hence the conduct is non-culpable.
The pattern/practice:
In all the cases the uniform feature is also that the earliest information is conveyed by police officials to the jurisdictional Police Station. The information so conveyed is generically to the effect that on reliable information received as to a meeting of extremists/Maoists /naxalites, a posse of police officers was deputed to the location to apprehend members of the banned organization. As the police party was approaching the rendezvous the members of the assemblage fired upon the police party. In the return of fire by the police officers in self-defence the death(s) occurred.
On receipt of such information the officer in-charge of the police station, in purported compliance with the provisions of Sec. 154 of Code of Criminal Procedure, 1973 (‘the Cr.P.C.) records such information and enumerates certain provisions of Indian Penal Code, 1860 (for short ‘IPC’)/the Arms Act, 1959 (‘the Arms Act’)/the Explosive Substances Act, 1908 (‘the E.S. Act’). All the enumerated provisions of the substantive law implicate the alleged criminal conduct of private individuals in the transaction. Wherever Sec. 100 IPC is enumerated in the First Information Report (‘the FIR’) it is a reflection of the plea of self-defence claimed (by the police party), in the information, which led to the registering of the FIR. In no case however is any provision of law implicating the criminal conduct of any member(s) of the police party spelt out, in the FIR.
The claim in W.P.No. 15419 of 2006 :
Cr.No. 30 of 2006 dated 24.07.2006 of Yerragondapalem P.S. (Y.Palem PS) [relatable to the issues arising in W.P.No. 15419/06 is illustrative of the invariable pattern that is apparent in homicide consequent on firings by police officers. In W.P.No. 15419/06 the petitioner – the President of the APCLC, pleads that initially there was a news that Mr. Madhav, State Secretary of CPI (Maoist) Group was caught but the other members of the party were shot dead; subsequent telecasts had different versions – some that Madhav was injured and escaped and others that he died in a police encounter. It is further pleaded that the deaths that occurred in the Nallamalla forest area in Y.Palem Mandal on 23.07.2006 are targeted police killings not immunized by any provisions under law including the provisions of the Indian Penal Code 1860 and that the killings constitute culpable homicide amounting to murder, by Police Officers.
The response of the D.G.P. :
The Director General of Police of the State has filed a counter affidavit dated 07.08.2006. Pages 2 to 7 of this counter set out a peroration as to the basic tenets of the extremists’ ideology, the rejection of democratic and parliamentary way of life; the general strategies of the CPI (Maoist) party which subvert the rule of law fundamentals; that the spread of extremist activities and naxalism is a potent threat to the internal security of the country and incidents and statistics of extremist activities; and the statistics regarding deaths of civilians and police personnel. The 2nd respondent further pleads that all cases of fire resulting in death of extremists are investigated with due diligence and adherence to the guide lines issued by the NHRC and various courts; each encounter death is registered as a cognizable offence and information provided to the Executive Magistrate by sending the original FIR to the Judicial Magistrate; the investigation is entrusted to an officer of the rank of a Deputy Superintendent of Police of another District who is required to file a charge sheet within three months; and the Executive Magistrate conducts the investigation in the first instance by way of an enquiry u/Sec. 176 of the Criminal Procedure Code 1973 (Cr.P.C.).
It is also the case of the 2nd respondent that police use adequate force in order to arrest u/Sec. 41(a) and 46(3) of the Cr.P.C. and that the police action is a bona fide case of use of adequate force which may in certain cases result in the casualty of the accused extremists (page 7 of the counter).
It is further pleaded in the counter affidavit that in addition to the investigation and inquest as above, in every case of encounter the District Collector orders a magisterial enquiry by an Executive Magistrate above the rank of Sub Divisional Magistrate, who holds an open enquiry widely published. The consequent report is sent to the District Collector & District Magistrate, who on being satisfied with the enquiry send a report to the Government and if not satisfied order a de novo enquiry. The report from the District Collector is scrutinized by the Government including by the Law Department and if not satisfied a de novo enquiry is ordered.
The 2nd respondent pleads (in respect of the incident in question) that on reliable information that the CPI (Maoist) are conducting a meeting in Markapur reserve forest to plan large scale violence in the forthcoming Gram Panchayat elections, on 22.07.2006 the Addl. Superintendent of Police (Operations) Markapur deputed the complainant, the S.I. of Police, Y.Palem PS with two Constables of the PS and 15 members of the District Police Special Party to the forest to arrest the Maoists. On 23.07.2006 at about 10 am while conducting combing operations near a hillock about 30 Maoists wearing Olive Green uniform armed with guns were found coming in the opposite direction and on seeing the police party opened fire. The police party warned them to surrender. The warning was not heeded and the firing continued on the police party. In self-defence the police party opened fire on the Maoists. The exchange continued for about one hour. During the firing the complainant contacted the police station. After cessation of the firing the police party found three male and five female dead bodies of Maoists including of Madhav, the Secretary of the AP State Committee. Arms and ammunition such as hand grenades, wireless sets, kit bags, cash and other material were also found at the scene of occurrence.
The A.S.I. of Police of Y.Palem PS, who received incomplete information about the encounter informed the same to the Inspector of Police, Markapur and was directed by the latter to make an entry in the General Diary. On receiving further details of the incident on 24.07.2006 from the complainant, Cr.No. 30/06 was registered under Sections 148, 307 r/w 149 IPC, Secs. 25 and 27 of the Arms Act; Sec. 5 of the E.S. Act and Sec. 8 of the APPS Act r/w Sec.100 IPC.
After setting out the description of the scene of occurrence and the procedure adopted for immediate investigation and conduct of the inquest, the counter narrates that four deputed Mandal Executive Magistrates who comprised the inquest party unanimously opined that the deceased and about 22 other unidentified Maoists had opened fire on the police party while they were conducting combing operations with a view to kill them; that the police party opened fire in self-defence and the Maoists died in the resultant exchange of file. Elsewhere in the counter (page 27) it is pleaded that during the exchange of fire three police men RSI Sreeramulu, PC 2687 Pydiraju and PC 5530 Kiran Kumar, were injured. The SDPO, Gurajala of Guntur District, is appointed as the Investigating Officer and the consequent investigation would determine whether the police party opened fire in self-defence or exceeded this right. It is the specific defence of the 2nd respondent that as neither the FIR nor any information received from the SI of Police, Y.Palem, disclosed commission of any offence by the Police Officers involved, no case is made out implicating the ingredients of Sections 299 and 300 IPC and therefore there is no warrant for incorporating an offence by the Police Officers u/Sec. 302 IPC.
The 2nd respondent pleads that one of the deceased Madhav, State Secretary, is an accused in 9 offences in several Police Stations in Mahabubnagar District including offences u/Sec. 302 IPC. The counter is however significantly silent as to whether the other deceased in the police firing on 23.07.2006 are accused in any offence and on what charge.
A brief overview of the written submissions filed on behalf of the several parties in this batch of writ petitions :-
(A) On behalf of the petitioner (in W.P. No. 15419/06):
It is urged
(i) On issue No.1: That when a police officer(s) causes the death of a person while acting or purporting to act in discharge of duties or on a claim of self-defence, the officer has presumptively committed the offence of culpable homicide; the information relating to such circumstance must be registered as a FIR and thereafter investigation pursued according to the procedure ordained in the Cr.P.C.; the contention on behalf of the State by the learned Advocate General (that Cr.No. 30/06 of Y.Palem PS has already been registered against the Maoists and during the course of investigation of this crime if it is revealed that the police has committed an offence that aspect would also be investigated and there is no necessity of registering the police conduct as a separate crime for independent investigation), is extravagant and inconsistent with the provisions of the Cr.P.C; where two sets of offences – one by the extremists and the other by the police, are prima facie revealed as forming part of the same event both the crimes would have to be independently registered; in every case of extremist killing in police firing the information conveyed clearly indicates also the death of citizens, prima facie a culpable homicide; the appropriate provision of the Indian Penal Code indicating the offence(s) presumed to have been committed by the police (subject to investigation and/or trial, as the case may be) must be necessarily indicated in the FIR; in the absence of such enumeration of offences by the police, the FIR would be a mere detailed description of an event without indication that the event implicates the commission of an offence prohibited by law; invariably under the current practice in cases of extremists killing inter alia Sec. 307 IPC is enumerated (indicating the offence committed by the extremists), while omitting any enumeration of offences by the police including in case of a death of a citizen, u/Sec. 302 IPC; when the investigating officer pursues the investigation u/Sec. 157 Cr.P.C., the I.O. is investigating into the offence u/Sec. 307 IPC and not into the conduct of the police implicated as one u/Sec. 302 IPC.
(ii) On issue No.2: The justification of private defence is u/Secs. 99 and 100 IPC. These provisions have to be read in conjunction with sec. 105 of the Indian Evidence Act 1872, which enjoins that the burden of proving the existence of circumstances bringing the case within any of the general exceptions to the IPC is upon the claimant of self-defence and the court shall presume the absence of such circumstances. The exercise of the right of private defence cannot be determined during investigation and the final report submitted by the I.O. to the Magistrate is not conclusive. Only in judicial proceedings is it legitimate to determine that the police conduct in an extremist killing event constitutes a valid self-defence justification.
(iii) On issue No.3: A Magisterial inquiry u/Sec. 174 Cr.P.C. is applicable only to cases of suicide and other suspicious death; the scope of such inquiry is limited to the apparent cause of death, for noting down wounds and other marks of injury and to elucidate the manner or by what weapon or instrument the injuries on the body might have been caused. Identification of the perpetrator of the homicide is beyond the scope of Sections. 174 and 176 Cr.P.C. Enquiry by the Magistrate u/Sec. 174 Cr.P.C. is not a substitute for either investigation u/Sec. 157 Cr.P.C. or the trial by a judicial proceeding.
(iv) On issue No.4: Neither the police establishment nor the police officer is immune from an obligation to disclose the identity of the police officer(s) who caused the death of a person. When information is received by an officer in charge of a police station that a homicide has occurred at the hands of a police officer, though claimed to be in self-defense, it is the duty of such informant to reveal the names of the police officer(s) who have committed the homicide; where the informant (even a police officer) admits in an information conveyed to the police station that he and/or other police officer(s) committed a homicide, it is the duty of such informant as also the duty of the officer in the police station recording such information to record the names of the perpetrators of the homicide, since the conduct involved is ex facie culpable. Sec. 202 IPC makes an offence, the conduct of intentional omission to give any information respecting an offence. The contention on behalf of the State that since a person aggrieved by a non-investigation by the police can file a private complaint u/Sec. 200 Cr.P.C., is not answer to the non-derogable obligation of the informant to provide the names and descriptions of the police officer(s) involved or the statutory obligation of the officer in charge of a police station to record the information or to demand the furnishing of such information. The current procedure adopted by the State is not authorized by law and is at variance with the law. Since it is the integral constitutional obligation of the State to ensure law and order and to investigate crime and since culpable homicide is an offence against the State, the State cannot contrive a procedure, which subverts the non-negotiable and fundamental principle of governance.
(B) Submissions by the 9th respondent (W.P.No. 15419/06):
(i) The question is whether an encounter killing by the police is a culpable or a non-culpable homicide? In the absence of any legislatively enabled executive use of deadly force in specified circumstances, every homicide by the police is presumptively culpable homicide. The first point of inquiry is whether a person by an act has caused the death of another. If the answer is in the affirmative, the second stage of inquiry invites itself i.e., as to in which of the four clauses in Sec. 300 IPC, the act of the perpetrator may fall and if it does not fall within Sec. 300 IPC, the conduct presumptively amounts to culpable homicide not amounting to murder, hence punishable under Sec. 304 Parts I & II IPC. The police to succeed in a plea of self-defense justification must establish in a court that the exercise of the right to private defense was on account of reasonable apprehension of death, the apprehension occurring on the spot and at the time when the police firing was resorted to. The police must also establish that the force used was reasonable and proportionate and that there was no ill-will or malice in the performance of the duty that led to the homicide. Since combing operations are conducted after planning; on the basis of intelligence reports; and special forces are deployed to engage in targeted killings of Maoists, there is prima facie presumption of malice and predisposition to homicide.
(ii) On issue No.2: Once the plea of self-defense is set up or presented, an offence of murder shall be presumed, the perpetrator(s) must be charge sheeted for such offence and the accused required to establish the claim of self-defense in a Court.
(iii) On issue No.3: A Magisterial enquiry is not a substitute for a session’s trial. The police who participated in an encounter killing by a mere declaration that the killing occurred in exercise of a right to private defense, cannot endow themselves immunity from prosecution nor can the investigating officer close the investigation by accepting such declaration. The death of persons in a police encounter is indisputably a cognizable offence. An assailant’s claim to self-defense must be investigated in the first instance only as a part of the investigation into the offence of culpable homicide. Neither a Magisterial enquiry nor a media presentation by the Director General of Police that the victims of encounter were killed in self-defense, are a lawful substitute for a clearly focused investigation pursuant to registration of the FIR enumerating the offence of culpable homicide and thereafter prosecution in a judicial proceedings.
(iv) On issue No.4: Where there has been a forfeiture of life there can be no immunity from the obligation to disclose information relevant to the investigation of such act. Any claim to immunity in this behalf is in clear violation of Article 21 of the Constitution, a non-derogable constitutional value. Right to life jurisprudence even in the Indian context explicates that preemptive self-defense or an anticipatory aggression cannot lead to diminished official responsibility to the inexorable mandate of the law.
(C) Submissions on behalf of the petitioner (W.P.No. 26358/99) :
The agent of the State who claims to have taken the life of another in the course of duty under the cover of permissible action or reaction cannot be a judge in his own cause. The State actor must submit to the process of law as applicable to any citizen in a claim to have taken life for self-preservation/defense, or under other circumstances permissible in law. While the raft of justification circumstances may be wider in the case of police officials/public authority than a private citizen, the principles of law applicable are identical.
Where a police officer conveys information to a police station inter alia admitting to the commission by himself and/or by other officer(s), of a homicide(s), a case of culpable homicide amounting to murder has to be registered against the perpetrator(s) as revealed in the information; the case so registered must be investigated fairly, impartially and professionally by an independent agency to identify the perpetrators of the offence as enumerated; and the eventual determination whether the homicide is culpable or non-culpable (on account of legitimate justification defences as would exonerate the perpetrator under criminal law), has to be determined by a competent court and not by the assailant police officer(s) or the investigating police.
An interactive analysis of the provisions of Sec. 129 Cr.P.C. r/w Sec. 130(3) Cr.P.C.; Sec. 149 Cr.P.C. r/w Sec. 97 IPC; Sec. 46(2) Cr.P.C., and Sections. 99 to 103 IPC, clearly discloses that since the exercise of a power and the manner and extent of its exercise is conditional upon, controlled or limited by the requirement of conformity to reasonable and objective standards, the discretion employed in the exercise of such regulatory power is subject to judicial review and no claim of unfettered executive discretion is legitimate. In case of injury or death caused by police, the perpetrator’s claim to the existence of circumstances which bring the facially prohibited conduct within the justification defenses either u/Section 76, 79 or 97n r/w 100 IPC (even in the absence of a complaint by or on behalf of a victim), judicial review of the validity of claims of justification defenses is mandatory and it is the competent court which must decide whether the police had used force in the manner and to the extent permitted by law or had exceeded the parameters of justification defenses and thus committed an act that is culpable.
Since the death caused in a police firing is facially a cognizable offence, the offence must necessarily be registered and investigated. The substantive provisions of criminal law read with the adjectival provisions of the Cr.P.C. and the Evidence Act show that police killings are presumptively and at the first instance a cognizable offence and the justification of exceptions to substantive criminality as provided in Chapter IV IPC and elsewhere in the Code do not derogate from the conduct being initially and presumptively an offence. At the threshold when information is conveyed to the police of killing in police action, what is on record is an offence of culpable homicide and the conduct continues to an offence until the circumstance that renders the conduct as non-offence come on record in the investigation and are accepted as such by a competent court. The executive and investigatory obligation is non-derogable and requires that the presumptive offence shall be investigated and the satisfaction that justification defenses are validly established must be conclusively declared only by a competent court and not by the investigating officer.
(D) Submissions on behalf of the petitioners (W.P.Nos. 7906/00, 14475/02 & 440/03):
While asserting that the police in the State are indulging in extra legal and extra judicial executions, the submissions made on behalf of the petitioner and the 9th respondent (in W.P.No. 15419/06) are adopted.
(E) Submissions on behalf of the 11th respondent (W.P.No. 15419/06):
On issue Nos. 1 to 3: the State’s obligation to punish extra-judicial homicide is a corollary of a citizen’s (the victim’s) right to life as well as the right to dignity of the victim’s kin. Art.21 does not enjoin mere procedure but enjoins due procedure. The status of the suspected offender or of the victim is irrelevant. Chapter XVI of the IPC enumerates offences affecting the human body and lists six variations of homicide, which are considered culpable and made cognizable. (Sections 302, 303, 304, 304A, 304B and 314 IPC) Except an offence falling u/Sec. 304A (causing death by rash and negligent act) all other offences are non-bailable and hence exclusively triable by a Court of Session. This is a reflection of the legislative recognition of the value and inviolability of human life.
Chapter IV IPC lists general exceptions which must be read as exceptions to every offence. In addition some offences are subject to specific exceptions and defences e.g., Secs. 300 and 499 IPC. The exceptions apply to all without any special exceptions in favour of a public servant.
If information is received in any form whatsoever of the commission of a cognizable offence, investigation has to follow. The first information of different transactions or offences in the same occurrence may be the same for the several offences; while the FIR may record facts showing different transactions in the same course of events, the investigation reports u/Sec. 173 Cr.P.C. would be diverse. Distinct investigations are obligated in counter cases. Private defense or an exception is only to be decided at trial.
The enumeration of the provisions of substantive law in the FIR or in the final report u/Sec. 173 Cr.P.C. is not conclusive and the court may always alter the charge (Sec. 216 Cr.P.C.).
Only when the investigation discloses limited or no material qua a particular person, such person may be released u/Sec. 169 Cr.P.C. Where a nexus between the accused and the offence is established or indicated by the investigation, Sec. 169 Cr.P.C. has no application. A plea of private defense arises if the evidence links the suspect to the offence. In all other circumstances the accused must be forwarded to the Magistrate who is required to commit the case to Session on disclosure of offence(s) triable by the Session Court. Even in a private complaint context, the scrutiny by the court is only to ascertain whether the ingredients of a cognizable offence are made out. Whereupon process must be issued to the accused.
A final report u/Sec. 173 Cr.P.C. for closure of a case of homicide on an assumption that the homicide is not culpable on account of general exceptions including the right of private defense justification is beyond the authority of the police nor is it within the authority of the Magistrate who must necessarily commit the case to Session where alone the vitality and applicability of the general exceptions must be considered. Since culpable homicide is exclusively triable by a Court of Session, the Court of Session must also consider private defense justifications. Private defence justification issues are to be proved but not presumed and require leading of evidence.
On issue No.4: A police killing even in a purported encounter is potentially the subject matter of a public trial in accordance with law. What is statutorily in the public domain cannot be in the realm of privilege. The right to dignity of the victim’s kin entitles them to a full explanation of the occurrence and of the prosecution of the guilty and hence the concomitant information can neither be privileged nor withheld.
(F) Submissions by the learned Advocate General on behalf of the 1st respondent (W.P.No. 15419/06) :
On issue No.1: U/Sec. 154 Cr.P.C., information relating to commission of a cognizable offence is required to be registered (FIR). When the information does not disclose an offence (keeping the general exceptions in mind) no FIR can/need be registered, since no offence is disclosed. Implicating a requirement that registration of FIR is mandatory even when the information on its face discloses that the justification of self-defense is available and if applied no cognizable offence is committed, would be doing violence to the language of Sec. 154 Cr.P.C. If some information is received which does not clearly disclose a cognizable offence, it does not prevent the police from verifying the relevant facts and thereafter if the facts disclose commission of a cognizable offence to register FIR and investigate the case further. Under Sec. 157 Cr.P.C. a police can investigate on information received or even otherwise. To contend that the FIR must be registered in all cases of information received about death caused by a police office in discharge of his duties or in self-defense would lead to consequence not envisaged by law – to absurd results. Every Judge, child, doctor, public servant or citizen whose action results in injury or death will have to be necessarily prosecuted even when they are fairly covered by the general exceptions. If in the course of investigation by an investigating officer/enquiry by a Magistrate, it is revealed that the plea of self-defense is a facade, the provisions of Cr.P.C. enable the Police/Magistrate to prosecute the person whose conduct constitutes a cognizable offence.
On issue No.2: If during investigation it is revealed, in the light of general exceptions or otherwise that no offence has been committed, a report to that effect shall be filed u/Sec. 173 Cr.P.C. before the Magistrate. If the investigation reveals commission of cognizable offence even so such a report must be filed. The Magistrate is required to examine the final report filed u/Sec. 173 and from the said report or from other information may take cognizance or refuse to do so depending on the material available before him. The investigation by the police is thus not conclusive of the matter.
On issue No.3: The police u/Sec. 157 Cr.P.C. may undertake further investigation even after intimation to the Executive Magistrate to hold inquest u/Sec. 174 Cr.P.C. A Judicial Magistrate u/Sec. 190 Cr.P.C. may take cognizance of any offence upon a complaint, upon a police report, upon information received or upon his own knowledge that an offence has been committed. A Magisterial enquiry into the facts and circumstances of death does not obviate the rigor of investigation and trial.
On issue No.4: In the facts of this case the issue has arisen, in view of the observations/findings in the majority opinion of the Full Bench in APCLC v State (6 supra). The learned Full Bench observed: “If a specific complaint is made alleging that an ‘identified individual’ had caused the death of such person, an independent FIR shall be registered in it, if it satisfies the law laid down by the Supreme Court in State of Haryana v Bhajan Lal. ”
The State specifically concedes the legal position that the conclusion recorded by the Full Bench in Para 65(b)(i) [extracted above], is incorrect. The Cr.P.C. enables the filing of a complaint even against an unknown person/offender. Since the State now concedes that the petitioner can lodge a complaint even against an unknown person, the issue does not survive. The concerned authority should be left to exercise the discretion of revealing the names of police personnel depending upon the facts and circumstances of each case. The State is not claiming any class immunity from disclosure. The petitioner (in W.P.No. 15419 of 2006) approached the authorities under the Right to Information Act, 2005 (the 2005 Act). The Designated Officer under this Act – the Station House Officer, Y.Palem, exercised his statutory discretion and rejected the petitioner’s application, by an order dated 30.08.2007. Against such order the petitioner has a remedy under the same legislation. In view of the exceptions carved out qua Sec. 8(1)(g) & (h) of the 2005 Act, in the facts and circumstances of this case and since the lives of police personnel would be endangered if their names are revealed, no disclosure of names is required under law. The State however does not claim immunity from disclosure to the Court nor does it claim any general class immunity.
(G) Submissions on behalf of the 10th respondent (W.P.No. 15149/06):
On issue No.1: It is not necessary in case of a death (occurring in the course of an exchange of fire with the police) that it should automatically lead to the registration of an offence. The Criminal Code provides for an intermediary stage, of inquest under Sections. 174 to 176 Cr.P.C. Sec.176 stipulates that the inquest can be in addition to or in the place of investigation. The current (executive) practice of conducting an inquest by the RDO, acting as the executive magistrate, following the guidelines envisaged by the NHRC, is an effective and adequate review of the incidents of exchange of fire.
A police officer has the discretion, under Sec. 154 Cr.P.C, to ascertain whether the information discloses the commission of a cognizable offence. Where the recording officer in his discretion is satisfied that the information received does not disclose the commission of a cognizable offence, he can decline to record the information. In that event the complainant can take recourse to the other remedies under the Cr.P.C (under Sections. 153(3) and/or 190).
After recording the information under Section. 154, the investigating officer has yet the discretion (under Sec. 157), of determining whether the information disclosed requires further investigation. If satisfied that no investigation is warranted, the recording officer is entitled to drop all further investigation and report the same to the Magistrate. The investigating officer is entitled to take into account the factual aspects, including the various exceptions provided under the Cr.P.C including the provisions authorizing the use of force by the police. If no cognizable offence is disclosed, more so if no offence of any kind is disclosed the police would have no authority to undertake an investigation.
Sections 149 and 152 of the Cr.P.C obligate the police to interpose themselves between persons contemplating or actually committing offences and the rest of the society. Sections 129 to 132 Cr.P.C authorize the use of force by police officers to disperse mobs and unlawful assemblies. Protection is accorded under Section 132 even where the use of force in such situations results in death. Section 151 Cr.P.C authorizes any police officer to arrest any person, where he has knowledge that such a person has a design to commit a cognizable offence. Section 46 Cr.P.C authorizes use of force by the police officer in the course of affecting an arrest. Such use of force, which may result in injury to body or even a fatality, would not constitute an offence. The provisions of Section 6 IPC read with the general exceptions contained in Sections 76 to 106, specifically Sections 76 to 79 enjoin that where injury is caused to a human body or death occurs due to such injury on account of employment of force by police officers in the course of duty, such conduct does not constitute an offence.
On issues 1 and 2: Exceptions can be invoked at the stage of recording the FIR under Section 154 Cr.P.C or at the stage of the investigation itself. It is not necessary that these exceptions should be invoked only in court, at the stage of trial. Sec. 105 of the Evidence Act (the provisions of the Evidence Act apply to judicial proceedings in a court of law vide Sec.1), does not exclude consideration of the justification defenses either during the course of investigation or even at the stage of recording information under Sec.154.
After recording the FIR and taking up the investigation on the basis of such information, any subsequent information couched in the form of a complaint would be treated by the investigating officer as further information received under Sec. 161 Cr.P.C. A second FIR leading to registration of a separate offence is however impermissible.
The discretion inhering in the investigation officer cannot be abrogated or dictated to by the judicial branch and the process of judicial oversight operates only after the investigating officer files the final report.
(H) Submissions of Sri C.Padmanabha Reddy (Amicus Curiae):
On issue No.1: Yes. Sec. 154(1) Cr.P.C. enjoins that every information relating to commission of a cognizable offence, whether given orally (in which event it must be reduced into writing) or in writing to an office in charge of a police station and signed by the informant must be entered in a book to be kept by such officer in such form as the State Government may prescribe, commonly known as the First Information Report. The act of entering the information into the said form is known as the registration of a crime or case.
At the stage of registration of a crime the police officer cannot embark upon an enquiry as to whether the information is reliable and genuine and refuse to register a case on an assumption that the information is not reliable or credible. The officer (in charge of a police station) is statutorily enjoined to register a case and to then proceed with investigation, if he has a reason to suspect the commission of an offence, which he is empowered to investigate u/Sec. 156 Cr.P.C.
Where the information itself indicates that there was an attempt to kill the police party and that in self-defense the police fired at the extremist(s) and this resulted in the death of an extremist(s), the said information comprises an attack by Maoists which is (in practice) registered u/Sec. 307 IPC and other applicable provisions. The other part of the information, that the police opened fire and killed extremist(s) in self-defence must also be registered. The claim of a self-defense justification is available only when clearly justified in accordance with the provisions of the substantive law and the well-entrenched principles.
Where the information discloses presumptive offences by two warring groups each party claiming the other as an aggressor, it is obligatory that two crimes be registered on such information. It is impracticable for the investigating agency to record conflicting statements in the same crime. Where there are rival versions regarding the same episode, they should normally take the shape of two FIRs. The offence for which a crime has to be registered depends on the nature of the first information. If a third party to the transaction gives the information it may be registered u/Sec. 174 Cr.P.C, which may be altered after further information. Where however the information itself is to the effect that a person was killed in firing, it is clearly a case of homicide. The issue whether the police are protected by general or special exceptions must be investigated or (if warranted) pleaded and proved at the trial.
Where the police refuse to register a case u/Sec. 154(3) Cr.P.C. a person aggrieved by such refusal may send the substance of such information in writing and by post to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation by any officer subordinate to him.
Where no action is taken by the police (either u/Sec. 154(1) or 154(3) Cr.P.C.) the complainant (u/Sec. 190 r/w 200 Cr.P.C.) can lodge the complaint before the Magistrate having jurisdiction to take cognizance of the offence. The Magistrate is required to enquire into the complaint in the manner provided in Chapter XV of the Code, but if the Magistrate finds that the complaint does not disclose any offence requiring further action, he may dismiss the complaint u/Sec. 203 Cr.P.C. on recording brief reasons. Where the Magistrate is satisfied that the complaint/evidence recorded prima facie discloses an offence, he must take cognizance of the offence and issue process to the accused.
The provisions of the Cr.P.C. refer only to the registration, investigation and cognizance of offence and not the offender(s). Cognizance means “that a Magistrate must have not only applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in subsequent provisions i.e., proceedings u/Sec. 200 Cr.P.c. and thereafter sending it for enquiry and report u/Sec. 202 Cr.P.C. Cognizance is considered to have been taken on the day when the case is taken on file and process issued to the accused.”
On issue No.2: The final report u/Sec. 173 Cr.P.C. must contain the facts discovered by the police and the conclusions drawn therefrom. If during the investigation and from the material gathered the Investigating Officer infers that the police acted in self-defense a report may be submitted to that effect. Such report may or may not be accepted by the Magistrate. Where the Magistrate decides to accept the final report he has to give notice to the complainant, if any. Where he does not agree with the final report, the Magistrate shall take cognizance if the material warrants cognizance or he may direct the police to further investigate the matter. Sec. 105 of the Indian Evidence Act 1872 is applicable only during trial. Sec. 105 enjoins the court to presume the absence of circumstances bringing the case within any of the exceptions. The accused has an opportunity to rebut the presumption only during trial and not at any previous stage.
The generic factual context :
In the batch of cases presented to this Bench for consideration of the legal issues involved (except in W.P.No. 26358 of 1999, where there is no death but grave injury to a person; and in W.P.No. 14475 of 2002), the generic factual narrative is that on credible information received a police (special police) party was deputed to a rendezvous where some extremist elements are believed to have gathered for the purpose of planning/executing extremist activities. On reaching the locality in question and despite a warning and admonition by the police party to surrender, they were fired upon by the extremists and in the return of fire by the police party (in self-defense) the death(s) occurred and in some instances the surviving members of the unlawful group had escaped. Such information is conveyed by a member of the police party to an officer in charge of a Police Station. On receipt of such information the FIR is registered, purportedly u/Sec. 154 Cr.P.C., recording the information received, enumerating offences under the substantive provisions of criminal and other applicable laws.
The offences enumerated in the FIR are invariably against the members of the private assemblage, often including the deceased, but never ever against a member or members of the police party involved in the engagement, which resulted in the death(s) of citizens. Whether such State procedure conforms to the law is the fundamental issue that falls for our consideration. If it does not, what is the appropriate substantive and procedural State obligation as by law enjoined is also a concomitant question. Though the State, qua the counter affidavit of the 2nd respondent-the Director General & Inspector General of Police, suggests that the wide spread, often endemic and occasionally proliferating operations of the extremists groups are addressed towards seriously undermining and debilitating law and order, endeavoring to overawe and overwhelm the executive and sovereign authority of the State, by violent means and by employment of deadly force against civilian population as well as State authority including members of the police establishment, neither the 2nd respondent nor the State claim any special legislative authority other than the general law (the provisions of the IPC and the Cr.P.C.) in justification of the unique executive process pursued, to investigate the legitimacy qua the law, of the executive conduct resulting in the encounter deaths. The current State practices pursued in such cases is sought to be justified only qua the ordinary laws of the land.
ANALYSIS:
Issue Nos. 1 and 3 may be conveniently considered together
Issue No.1: 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, is there commission of a cognizable offence (including in an appropriate case the offence of culpable homicide); and whether the information relating to such circumstances requires to be registered as a First Information Report obligating investigation in accordance with the procedure prescribed by the Code of Criminal Procedure, 1973?
Issue No.3: Whether a magisterial enquiry (whether under the Code of Criminal Procedure or extant Police Standing Orders) into the cause and circumstances of death occasioned by an act of a police officer obviate the rigor of investigation and trial of such act?
There are several shades of competing positions on different aspects of issue No1, which we propose to analyze and consider.
(A) The scope of Section 154 (1) Cr.P.C.
Sub-section (1) of Section 154 Cr.P.C. is relevant for the consideration of this issue. Sub-sections (2) and (3) of this provision relate to the obligation to furnish to the informant a copy of the information as recorded in sub-sec (1); and the remedy available to a complainant to represent to the Superintendent of Police concerned on the refusal of the Officer in charge of a police station to record the information referred to in sub-sec (1) and the obligation of the Superintendent of Police on receipt of such a representation from the complainant.
Sec. 154(1) reads:
154. Information in cognizable cases: -- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
That the recording of the information received relating to the commission of a cognizable offence in the prescribed form is a non-derogable obligation of the officer in charge of a police station, in view of the legislative mandate in Sec. 154 Cr.P.C., is clear and is not disputed either. The prescribed form for recording the entry of the information so received is referred to as the First Information Report and the act of entering the information in the prescribed form is known as the registration of a crime/case, -- Para 30 –Bhajan Lal (7 supra).
Bhajan Lal clearly declares: At the stage of registration of a crime/case on the basis of the information disclosing cognizable offence in compliance with the mandate of Sec. 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, led by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. Bhajan Lal clearly holds: the police officer has no other option except to enter the substance thereof in the prescribed form, that is to say to register a case on the basis of such information.
Reiterating the interpretation in Bhajan Lal as to the scope of Section 154 (1) of the Code, the Supreme Court in Ramesh Kumari v. State (NCT of Delhi) and others ([9][9]) (Per: H.K. Sema, J) held that the provisions of Section 154 of the Cr.P.C. are mandatory and the officer concerned is duty bound to register the case on the basis of an information disclosing a cognizable offence. The Court also reiterated the relevant principle spelt out in Bhajan Lal, that the genuineness or otherwise of the information can only be considered after the registration of the case; and that genuineness or credibility of the information is not a condition precedent for registration of the case. The same view was reiterated (H.K. Sema, J) in Lallan Chaudhary v. State of Bihar ([10][10]), that the reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Cr.P.C.
In Prakash Singh Badal v. State of Punjab ([11][11]) (Per: Dr. Arjit Pasayat, J) the scope of the provisions of Section 154 (1) Cr.P.C. was again considered. On an analysis of the phraseology employed in Section 154 (1) in juxtaposition with the provisions of Section 41 Cr.P.C. (dealing with the powers of the Police to arrest without warrant), the Supreme Court held that in view of the fact that the Legislature had carefully and designedly employed the expression “information” without qualifying the expression with accompanying words such as “reasonable complaint” or qualifying “information” with the requirement that such information must be “credible”, the Police officer cannot refuse to record the information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. Prakash Singh Badal (11 supra) clearly held that reasonableness or credibility of the information is not a condition precedent for registration of the case and that the sine qua non for recording a first information report is that there must be an ‘information’ and that information must disclose a cognizable offence.
We may at this stage usefully, though briefly, consider the observations of the Supreme Court in Shakila Abdul Gafar Khan (Smt) vs Vasant Raghunath Dhoble and Anr.([12][12]) (per Arijit Pasayat,J). This was a case involving an allegation of custodial/police torture resulting in the death of the complainant’s husband, one Abdul Gafar. The complaint made by PWs 1,2 and 5 against the respondents Dhoble and others during the period 14.10.1983 to 16.10.1983 was not investigated, though their statements were recorded. A private complaint was then made in December 1984 and the case was committed to Session trial in January 1987. The trial court found the accused guilty but the judgment of conviction and sentence was set aside by the High Court in appeal and thereupon the issue was taken to the Supreme Court. Responding to the contention on behalf of the State that the statements by PWs 1,2 and 5 were considered u/Sec. 174 Cr.P.C. and therefore no FIR was registered, the Supreme Court strictured this procedure and observed that the official (the recording officer of the Police Station) acted as though he were deciding the guilt or otherwise of the accused and that the permissible area of application of mind (when exercising jurisdiction u/Sec. 154(1) Cr.P.C.) is limited to finding out the existence of a cognizable offence and nothing beyond that. The Supreme Court further observed that the course adopted by the official makes a mockery of the law.
There is another aspect of the matter arising from a contention advanced on behalf of the State that may usefully be considered at this stage. Relying on the judgment in Aleque Padamsee and others v. Union of India and others([13][13]) (Per: Dr. Arijit Pasayat, J), it is contended by the State that this Court cannot entertain a plea nor issue a Mandamus to the police to register a case under Section 154 (1) of the Cr.P.C. In Aleque Padamsee, the Apex Court on a consideration of the earlier judgments in All India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India([14][14]); Gangadhar Janardan Mhatre v. State of Maharashtra([15][15]); Ramesh Kumari v. State (NCT of Delhi) ([16][16]); Minu Kumari v. State of Bihar([17][17]); Hari Singh v. State of U.P.([18][18]) and Lallan Chaudhary v. State of Bihar([19][19]), ruled that the proper course and remedy available in the context of inaction by the police to register the First Information Report under Section 154 (1) of the Cr.P.C., is to pursue the remedies under the provisions of Cr.P.C. by filing a complaint before a Magistrate. This view is reiterated in Sakiri Vasu vs State of U.P. & Ors. ([20][20]). Though in Aleque Padamsee (13 supra) and Sakiri Vasu (20 supra) the Supreme Court did not specifically hold and in express terms that no Mandamus under Article 226 of the Constitution of India could issue to direct the State executive agency (the police) to perform the statutory obligations under Section 154 of the Cr.P.C., nor did the Court hold that availability of alternative and statutory remedies eclipse the constitutionally endowed jurisdiction under Article 226, the State would contend that in view of the available statutory remedies to an aggrieved, to prefer a private complaint to the Magistrate, no direction to register an FIR could be issued by the court.
This Bench is not constituted to adjudicate on the merits of any particular factual issue involved in any of the cases on board or to grant relief by issue of specific directions to the police. This Bench would consider the normative issues which have been framed by us including as to the obligations of the police under Section 154 (1) of the Cr.P.C., when information is received as to homicide(s) at the hands of police officers in encounter cases and in the context of the informant claiming that the homicide(s) occurred in exercise, by the police of the right of private defense.
Pronouncing upon the contours of the legal obligations of the law enforcement agencies of the State, in such and similar circumstances qua the provisions of Section 154 (1) of the Cr.P.C, in the context of our Constitution’s mandate, is emphatically within the province of this Court.
It requires to be noticed that Bhajan Lal (7 supra) had occasion to deal inter alia with the generic issue as to the scope and obligation u/Sec. 154 Cr.P.C. In the context of the stand by the State the issue before us presents a distinct dimension; whether where the first information is by a police officer intimating death of civilian(s) in an engagement with law enforcement officers of the State (in circumstances claimed by such officers to have occurred while exercising the right of self-defense), is there yet the non-derogable obligation to register the FIR or a distinct FIR (apart from the FIR that is now being registered against the private citizens involved in the engagement), against the police officer(s) involved in the homicide, treating such homicide to be facially a culpable homicide, warranting registration and initiation of the investigatorial process?
(B) Registration of two (2) First Information Reports, if permissible:
In T.T.Anthony vs State of Kerala and Others ([21][21]) Quadri,J speaking for the court (2 judges) held:
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Cr.PC only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of Section 154 Cr.PC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
In T.T. Anthony the factual scenario was that during the visit of one Mr. Raghavan, a Minister in the UDF Government to Kannur District in Kerala State, on 25.11.1994 in a police firing purportedly resorted to for the protection of the Minister and of public and private properties five persons died and six were injured and more than 100 persons suffered injuries in the lathi charge with a few police personnel also sustaining injuries, in a melee which preceded the police firing. The firing occurred at two places – at one location on the orders of the Executive Magistrate and at the other on the orders of the Superintendent of Police. In respect of both the instances Cr.Nos. 353 and 354 of 1994 were registered under several sections of the IPC and provisions of other statutes against specified and unspecified individuals belonging to the CPI (M) party. On strident public demand, on 20.01.1995 a Commission of Inquiry was appointed under the provisions of the Commission of Inquiries Act 1962, to enquire inter alia into the circumstances which led to the police firing and for assessment as to whether the firing was justified, ascertainment of the persons responsible for such firing and incidental matters. After the 1996 Assembly elections there was a change of political fortunes and the LDF Government replaced the UDF Government. In May 1997 the Commission submitted its report recorded that the police firing on 25.11.1994 was not justified and that Mr. Raghavan, a Deputy Superintendent of Police, a Deputy Collector and others were responsible for the police firing. The report of the Commission was accepted by the Government and eventually Cr.No. 268 of 1997 was registered against Mr. Raghavan, the Dy. Superintendent of Police, the Dy. Collector and other Police Officials, u/Sec. 302 IPC. The Investigating Officer filed an interim report implicating 19 police officers. Aggrieved thereby writ petitions were filed by some of the accused. The earlier cases registered against the members of the CPI (M) party came to be closed, after the registration of Cr.No. 268 of 1997. The accused in Cr.No. 268 of 1997 filed writ petitions seeking quashing of the FIR and alternatively for investigation by the CBI. A learned single Judge of the High Court directed reinvestigation by the CBI and disposed of the writ petitions accordingly. Separate appeals were filed by the writ petitioner as well as by the State. The Division Bench partly confirmed the order of the learned single Judge but directed a fresh investigation by the State police headed by a senior officer specified in the judgment, instead of the CBI. The writ petitioners filed appeals before the Supreme Court. The Supreme Court in T.T. Anthony distinguished the earlier judgments in Ram Lal Narang vs State (Delhi Administration) ([22][22]) and M.Krishna vs State of Karnataka ([23][23]) and held that notwithstanding the broad power of investigation including the power to make further investigation u/Sec. 173(8) Cr.P.C., there was no warrant for subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of the successive FIRs whether before or after filing the final report u/Sec. 173(2) Cr.P.C. The Supreme Court held:
27. … In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.
The Supreme Court concluded that the registration of the second FIR as Cr.No. 268/97 and the consequent investigation was invalid and quashed while preserving liberty to the investigating agency to seek the leave of the concerned court in Cr.Nos. 353 and 354 of 1997, for pursuing further investigation u/Sec. 173(8) Cr.P.C.
In Upkar Singh v. Ved Prakash ([24][24]), the Court (Per: Santosh Hegde, J for self, S.B. Sinha and A.K. Mathur, JJ) considered the issue whether a second complaint with respect to the same incident, filed as a counter complaint was prohibited under the provisions of the Cr.P.C. and whether on refusal by the police to register the counter complaint, the Magistrate could direct the police, at any stage, to register the complaint and investigate the same. The earlier decision in T.T. Anthony (21 supra) also fell for consideration. On the facts of Upkar Singh’s case, the appellant and some others were accused of offences under Sections 452 and 307 IPC in crime No. 48 of 1995 of Sikhera Police Station in Fahimpur Kalan village. The appellant had also lodged a complaint in respect of the same transaction against the respondents alleging offences punishable under Sections 506 and 307 IPC, committed against the appellant and his family members. The complaint having not been entertained by the police, the appellant filed a petition under Section 156 (3) of Cr.P.C. before the Judicial Magistrate. Muzaffarnagar. The Magistrate directed the Sikhera Police Station to register a crime against the accused named in the complaint of the appellant and to investigate the same. The police thereupon registered crime No. 48-A of 1995 under Sections 147, 148, 149 and 307 IPC. The 1st respondent (before the Supreme Court) aggrieved by the registration of crime No. 48-A of 1995 preferred a criminal revision petition which was allowed and the order of the Magistrate directing registration of the criminal case was set aside. Aggrieved thereby, the appellant approached the High Court, which Court by the order dated 10-04-2001 and following an earlier judgment of that Court dismissed the appellant’s revision. After the above judgment of the High Court, the judgment of the Supreme Court in T.T. Anthony (21 supra) came to be delivered. The respondents rested their defense before the Supreme Court inter alia on the judgment in T.T. Anthony. We consider it appropriate to extract the reasoning of the Supreme Court in Upkar Singh as set out in paragraph Nos. 21 to 23 of the report:
21. From the above it is clear that even in regard to a compliant arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.
22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.,) (1979) 2 SCC 322: 1979 SCC (Crl) 479) also shows that even in cases where a prior complaint is already registered, a counter-complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554; 1980 SCC (Crl) 272; AIR 1980 SC 326). However, it must be noticed that in T.T. Antony case, Ram Lal Narang Case was noticed but the Court did not express any opinion either way.
23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e., if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
The decision of the Supreme Court in Kari Choudhary v. Sita Devi([25][25]), which was referred to with approval in Upkar Singh (24 supra) also affords salutary guidance on this issue. In Kari Choudhary, the Apex Court had inter alia considered when an investigation should be pursued in both crimes when there are two FIRs in respect of the same case. On facts, the mother-in-law was the complainant in a case of culpable homicide of her daughter-in-law. Eventually however she was transposed as one of the delinquent offenders of the murder. On the basis of the mother-in-law’s complaint, FIR No.135 was registered. During the course of investigation, the police formed an opinion that the murder had occurred in a manner totally different and that it was committed pursuant to a conspiracy hatched by the mother-in-law – Sita Devi, other daughters-in-law and others. Police sent a report dated 30-11-1998 to the Court that the allegations in the FIR 135 are false. The police continued investigation after informing the Court that they had registered another FIR No. 208 of 1998. Sita Devi lodged a protest before the Chief Judicial Magistrate asserting that the police report dated 30-11-1998 is unsustainable and reiterating that the accused in FIR No. 135 are the real culprits. The Chief Judicial Magistrate rejected the protest petition by an order dated 28-08-1999. Sita Devi thereupon challenged the said order in a revision. This was allowed on 07-02-2000 and the Chief Judicial Magistrate was directed to conduct an enquiry under Section 202 Cr.P.C. The police proceeded with the investigation on the fresh information that the murder was by some other persons and after conclusion of the investigation filed a charge sheet on 31-03-2000 wherein Sita Devi and others were arraigned for an offence under Sections 302 read with Section 34 IPC. The Chief Judicial Magistrate committed the case to the Court of Session and the Session Court framed a charge against the accused for the above offence. Sita Devi then moved the High Court for quashing the criminal proceedings. A learned single Judge accepted the challenge and quashed the criminal proceedings. As a consequence Sita Devi and the other accused stood absolved of the charge of murder even without a trial. The observations of the Supreme Court in Kari Choudhary, which throw a light on the issue (relevant for this case), are set out in paragraph No.11 of the judgment:
11…Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid on FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it. (Emphasis).
In view of the decision of the three Judge Bench of the Supreme Court in Upkar Singh (24 supra) which approved the principle spelt out in the earlier decision in Kari Choudhary (25 supra), the legal position must be considered as established that where there are rival versions in respect of the same episode, it is not only legitimate but necessary that the information must take the shape of two different FIRs and the investigation must be pursued in respect of both the cases.
In the context of the rival positions adopted in this batch of cases i.e., on behalf of the petitioners and per contra on behalf of the State and the A.P. Police Officers Association, we are required to consider a related aspect. We also notice and place on record the fact that the A.P. Police Standing Orders, [S.O. 416 (8) instructs (the recording officer under Sec. 154 (1) Cr. P.C.] to “Register a case even if the information is from the accused.” The revised A.P. Police Manual was approved in G.O.Ms.No. 201, Home (Police. C) Department dated 08-09-2001.
(C) Whether a FIR must be registered against police officer(s) involved in an operation which has resulted in homicide(s), claimed to be in self-defense:
As we have already noticed and recorded, the first information (in cases involving an encounter between police and civilians alleged to be Maoists/Naxalites/Extremists), to the officer in charge of a police station is normally, if not invariably, by a police officer. The information is also to the effect that when the police approached the conclave of civilians and warned them to surrender they opened fire. In the resultant firing by the police (asserted to be in self-defence) the casuality(s) occurred including death(s).
The learned Advocate General, on behalf of the State and Sri Lalit the learned Senior Counsel on behalf of the 10th respondent (in W.P.15419/06) contend that in view of the provisions of Sec. 6 read with the General Exceptions (set out in Chapter IV, in particular Secs. 96 to 106 IPC), the first information conveyed to the officer in charge of the police station cannot lawfully be considered as information relating to commission of any offence let alone a cognizable offence. It is additionally the contention on behalf of the AP Police Officers Association that the provisions of Secs. 129 to 132 (in Chapter X Cr.P.C. - relating to maintenance of public order and tranquility) and the provisions of Secs. 149 and 152 Cr.P.C. (Chapter XI Cr.P.C. - relating to preventive action of the police), authorize use of force by police officers to disburse mobs and unlawful assembly; to interpose themselves between persons contemplating or actually committing offences and the rest of the society; afford protection to police officers when force is exercised under the provisions of Secs. 129 to 131 Cr.P.C. (Sec. 132 Cr.P.C.); and even where the employment of force in such situation results in death(s). Sec. 151 Cr.P.C. authorizes a police officer to arrest any person upon knowledge of a design to commit any cognizable offence, even without an order from a Magistrate and without a warrant. Sec.46 Cr.P.C. (Chapter IV) authorizes the use of all means necessary to affect an arrest including to the extent of causing the death of a person. The use of force, even lethal force by police officers, is thus legislatively sanctioned, contends the State.
We will now consider the above proposition.
Section 6 IPC (Chapter II – the General Explanations) reads:
6. Definitions in the Code to be understood subject to exceptions: -- Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.
On a true and fair construction of the provisions of Sec. 6 IPC, considered in the context of the legislative scheme qua the several provisions of the IPC, it is apparent that Sec. 6 explicates a convenient legislative formula to avoid reproduction of lengthy exceptions in the description of the each of the several offences. Consequently all offences enumerated in the Indian Penal Code must be read subject to the provisions in Chapter IV relating to General Exceptions (Secs. 76 to 106 IPC). Therefore, when an act falls within any of these exceptions, by virtue of the provisions of Sec.6, the accused must be accorded the benefit of the appropriate General Exception even though such exception is not specifically indicated in the description of the offence elsewhere in the IPC.
In Subodh Tiwari vs State of Assam ([26][26]) the Gauhati High Court held that in view of the provisions of Sec.6 the provisions of Sec.299 and 302 IPC are also to be understood subject to the General Exceptions though the exceptions are not specifically enumerated in Secs. 299 to 302 IPC. Thus the High Court held, even when the acts of an accused may amount to culpable homicide amounting to murder, the court is statutorily bound to consider the facts and circumstances to ascertain whether any of the provisions contained in the General Exceptions is attracted. On the material before the court if the court concludes that the accused had the right of private defence, it should hold that the act of the accused did not amount to an offence.
In State of Manipur vs C.T.Sangam ([27][27]) the High Court held that in view of the provisions of Sec.6 there is no imperative duty or obligation on an accused to take up a specific plea or set up a defence falling within any of the General Exceptions. If from the entire evidence on record, a case is seen to be covered by the provisions contained in Chapter IV IPC, the court is bound to take that into consideration.
In Seriyal Udayar vs State of Tamil Nadu ([28][28]) (per Oza,J) the Supreme Court observed that even if on the basis of the material on record the right of private defence of the accused-appellant is not established, still the material produced in cross-examination and the circumstances discussed (by the court) do indicate that the incident might have happened in the manner in which it was suggested by the accused appellant and therefore it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt, the accused is entitled to acquittal.
It is therefore apparent that the provisions of the General Exceptions are implicated into the description and definition of all offences enumerated in the IPC. It is consequently the duty of all executors of the legislative obligations under the Penal Code, the recording officer in charge of a police station, the investigating officer or the appropriate Magistrate or Court of Session as the case may be, to consider every offence defined and sanctioned by the provisions of the IPC in the light and context of the General Exceptions set out in Chapter IV IPC.
Sec.46 Cr.P.C. deals with how an arrest could be made and cognate aspects. Sec.43 authorizes any private person to arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, so however that such private person (making the arrest) must without unnecessary delay make over or cause to be made over the person so arrested to a police officer or to take such arrested person to the nearest police station. Sec. 46(1) recognizes that an arrest could be made by a police officer or other person. Sec. 46(2) authorizes not only a police officer but other person as well, to use all means necessary to affect the arrest, if such person forcibly resists the endeavor to arrest him or attempts to evade the arrest. Sec. 46(3) clarifies that the provisions of Sec. 46 do not authorize the causing of death of a person who is not accused of an offence punishable with death or with imprisonment for life.
In Romesh Chandra Mehta vs State of W.B. ([29][29]) the court clarified when a person could be said to be accused of an offence. In the context of the right/immunity against testimonial compulsion under Art. 22(1) of the Constitution, the court in Romesh Chandra Mehta observed: Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or where a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. This passage was quoted with approval and the principle reiterated by Krishna Iyer, J in Nandini Satpathy vs P.L.Dani and Anr([30][30]). We see no reason to import an artificial or an extravagant interpretation to the expression accused in Sec. 46(3) Cr.P.C. Thus, [subject to the substantive interpretation and analysis hereinafter in the judgment], where the person whose death is caused is not formally an accused (as pointed out in R.C. Mehta and Nandini Satpathy), recourse to Sec. 46(3) is unavailable.
In the scheme of the provisions of the Cr.P.C., in particular in Chapter V (wherein Sec.46 occurs), it is apparent that the powers of arrest may in the specified circumstances be exercised not only by law enforcement officers but by civilians as well. The provisions of Sec. 46 Cr.P.C., occurring in a procedural code do not, expressly nor by any interpretive compulsion constitute a substantive Legislative authorization to police officers and civilians as well to use lethal force to the extent of causing death. The provisions of Sec. 46(3) must be understood as enjoining a prohibition that in making an arrest (whether by a police officer or any other person), death shall not be caused of the person who is not accused of an offence punishable with death or imprisonment for life. It is not possible to consider the provisions of Sec. 46(2) and (3) as authorizing the use of lethal force without such conduct being susceptible to scrutiny for conformity with the criminal prohibitions enjoined in the IPC considered together with the General Exceptions set out in Chapter IV IPC. Where the person whose death is caused, is not accused of an offence punishable with death or imprisonment for life, the provisions of Sec. 46(3) Cr.P.C. are per se inapplicable.
It is significant that Sec.46 Cr.P.C. occurs in a procedural code. It cannot (on text or legislative context) be interpreted as a substantive legislative authorization of an unlimited and uncanalised power to cause death. Sub-Sec. 2 of Sec. 46 Cr.P.C provides that a police officer or other person may use all means necessary to affect the arrest. Clearly therefore all necessary means are available only to effect arrest. The power to employ all necessary means, the Legislature has consciously restricted to the object of affecting the arrest. If the choice in a given circumstance is thus between escape and certain causing of death, there appears no justification in law to cause death merely to prevent escape. Sub-lethal employment of force to prevent escape, in our considered view, may however be employed; as such non-lethal employment of force ensures arrest of the misdemeanant while tending to avoid his certain death. We consider this to be proper interpretation of Sec.46(2) and (3) of Cr.P.C. If Sec. 46(3) Cr.P.C. is otherwise construed, as authorizing conscious and deliberate use of lethal force clearly intending the causing of death where that is the only means of preventing escape, on death caused that would not lead to arrest. Sub-Secs. (2) and (3) of Sec. 46 Cr.P.C. are both in the context of effecting arrest. Proportionality of the force employed while proceeding to arrest a misdemeanant is thus a very relevant circumstance in ascertaining the culpability or otherwise of the conduct in the circumstances of arrest.
There is another incongruous interpretive consequence in construing Sec. 46 (3) Cr.P.C as an independent, comprehensive and substantive legislative authorization for use of lethal force; overarching the provisions of the IPC and excluding/eclipsing/avoiding the contouring standards for legitimate employment/applicability of self-defense justifications under Chapter IV IPC. If Sec. 46 Cr.P.C is a dominant and compendious legislative prescription, would a self-defense justification (under Chapter IV IPC) be available where lethal aggression is presented by a person not accused of an offence punishable with death or with imprisonment for life!
We therefore consider the appropriate interpretation of Sec. 46(3) Cr.P.C. to be, in elucidation of the contours of the provisions of sub-sec. (2), as authorizing the use of lethal force only where a potential arrestee (who is accused and therefore formally arrayed as such and not merely suspected, of an offence punishable with death or imprisonment for life), conducts himself in a manner leading to a reasonable belief of an imminent apprehension of danger to the life and person of the police officer or other person proceeding to effect the arrest.
In any event while on behalf of the State and the AP Police Officers’ Association the provisions of Sec. 46(3) are referred to in passing, the substantive and empirical stand of these respondents is that the conduct of the police officer(s) falls within the matrix of self-defence justification (a General Exception).
Sec. 129(1) Cr.P.C. authorizes inter alia a police officer to command an unlawful assembly or an assembly of 5 or more persons likely to cause a disturbance of the public peace to disperse and enjoins a corollary duty on the members of such assembly to disperse in conformity with such command. Sec. 129(2) authorizes the use of force to execute the command to disperse and to arrest and confine persons who form part of such assembly, to effectuate the dispersal of such assembly. Sec. 130 authorizes the Executive Magistrate to requisition assistance of the Armed Forces to disperse an unlawful assembly or an assembly of 5 or more persons likely to cause disturbance of the public peace. It must be noticed that Sec.133 enjoins that every such officer of the armed forces, as requisitioned, shall use as little force, and do as little injury to the person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.
Sec. 132(1) Cr.P.C. mandates sanction by the appropriate Government as the condition precedent to the prosecution in a criminal court of any person for any act purporting to be done u/Secs. 129 to 131 Cr.P.C. The expression nothing is an offence in sub-sec.(2) of Sec. 132 Cr.P.C. is applicable where the conduct of an Executive Magistrate, a Police Officer, a person or an officer of the Armed Forces acting u/Secs. 129 to 131 Cr.P.C. is in good faith. It is clear from the provisions of Sec. 132 Cr.P.C. that in exercise of the powers conferred, to disperse an unlawful assembly or an assembly or five or more persons likely to cause disturbance of the public peace, there is no blanket immunity from prosecution. If the conduct of a law enforcement officer u/Secs. 129 to 131 Cr.P.C. were intended to be beyond the pale of criminality irrespective whether the force used was unreasonable or in bad faith, there is no occasion for providing for sanction as a condition precedent to the prosecution. The provision for sanction is a safeguard against frivolous prosecution. Wherever therefore there is a complaint of excessive or disproportionate use of force or unwarranted causing of injury to person and property and if such complaint constitutes information as to the commission of a cognizable offence, the complaint must be recorded and registered as FIR u/Sec. 154(1) Cr.P.C. However in view of the provisions of Sec. 132(1) Cr.P.C. sanction by the appropriate Government would be necessary for institution of a prosecution in a criminal court.
Sections 149, 151 and 152 enjoin an obligation on a police officer to interpose to prevent commission of any cognizable offence to arrest a person on knowledge of a design by such person to commit a cognizable offence; and to interpose to prevent any injury attempted to be committed in the police officer’s view respecting public property or other specified public land marks, etc.
None of the provisions (Secs. 46, 129 to 132, 149, 151 and 152) per se authorize the use of lethal force without accountability nor do they, on a true and fair construction of these provisions, carve out an architecture of exceptions beyond, distinct or apart from the general or specific exceptions enumerated in the substantive provisions, of the IPC.
The substantive case of the State and the of the AP Police Officers Association rests on recourse to private defence justification. We therefore consider the generic and normative architecture of defences in criminal law. We embark on a detailed analysis of the area as the State very emphatically assumes that even investigatory scrutiny (into police conduct in cases of death(s) resulting from encounter operations) would undermine the morale of the police forces and is not warranted by law.
Anatomy of Defences in Criminal Law :-
The substantive provisions of Criminal Law indicate a general, internal structure of offences. These are:
(a) An offence is committed where an actor satisfies all the elements contained in the definition of that offence. There are 2 defining facets to an offence:
(i) Actus reus elements or the objective criteria of an offence which may consist of the conduct of the actor, the circumstances in which the conduct takes place and the results consequent on the conduct; and
(ii) The mens rea or the culpability element such as purpose or intention, knowledge, recklessness, negligence, or lack of culpability with regard to the engaging in the conduct, causing the result, or being aware of the circumstances specified in the objective element(s). Every offence must contain at least one objective element (actus reus element) consisting of the conduct of the actor. Every actus reus element must have a corresponding mens rea element, which however may be different for each of the objective elements of the same offence. Sometimes, a culpability element may be required without a corresponding objective element – see Sir Mathew Hale – Historia Placitorum Coronae (London-1736).
General:
Defenses in Criminal Law are accommodations of complex notions of fairness and morality homogenized by demands of efficiency and utility. Defenses, in a generic sense are a set of identifiable conditions or circumstances that may prevent conviction for an offence. There appear in contemporaneous legal systems, a bewildering array of such possible bars to conviction. These include alibi; amnesia; authority to maintain law, order and safety of the community; chromosomal abnormality; consent; custodial authority; defense of habitation; defense of others; of property; de minimus infractions; diplomatic immunity; domestic or special responsibility; double jeopardy; duress; entrapment; executive immunity; extreme emotional disturbance, hypnotism; impaired consciousness; impossibility; incompetence; insanity; intoxication; involuntary act defences; judicial authority; judicial immunity; justification; law enforcement authority; legislative immunity; medical authority; mental illness apart from insanity; military orders (lawful or otherwise); mistake (of fact and sometimes of law); necessity; plea bargained immunity; provocation; public duty authority; reflex action; renunciation; self-defense; Statute of limitations; testimonial immunity and the like – see: Paul H. Robinson – Criminal Law Defenses: A systematic Analysis([31][31]).
A defense in Criminal Law is a set of identifiable conditions or circumstances, legislatively prescribed and to an extent nuanced over time by precedential authority, which may prevent conviction for an offence.
Though as already noticed there are apparently a variety of defences which possibly operate as a bar to conviction, the several defences could be categorized conceptually as failure of proof, those that modify the offence, justifications, excuses, and non-exculpatory public policy defences.
In a large number of criminal jurisdictions as in India, no person may be convicted of an offence unless each element of the charged offence is proven beyond reasonable doubt. This is a general prosecutorial burden. Failure of proof defences mean that in view of the defense apparent or adopted, the prosecution is unable to prove all the required elements of the offence, the actus reus, the mens rea, the circumstances, the result elements and the other culpability requirements. Illustrations of defenses involved in failure of proof are mistake (Sec. 79 IPC); intoxication (Sec. 85, 86 IPC); mental illness (Sec. 84 IPC); consent (Sec.87 to 89 IPC); diminished capacity (Sec. 86 IPC).
A modification of offence defense is more than a simple negation of an element of an offence, which applies even where all the elements of offence are satisfied; and is distinguishable from other defenses like self-defense or insanity. In offence modification defenses the accused satisfies all the elements required for culpability but is nevertheless entitled for acquittal. Instances are De minimus infraction (Sec. 95 IPC) or where a parent in a kidnapping case and against the advice of police pays a substantial ransom to the kidnapper of the child (Sec. 81 IPC). The principle underlying the modification of culpability is that while the person has apparently satisfied all the elements of the offence charged he has not in fact caused the harm or evil sought to be prevented by the legislation defining the offence. In a large number of cases defences under this head may not be given a formal expression in the legislation but exist only as accepted rules. A common rule being that the victim of a crime may not be held as an accomplice even though his conduct has in a significant sense aided the commission of the crime. In several jurisdictions the woman involved has an offence modification defense to a charge of abetment to adultery. In India however (Sec. 497 IPC) the wife of the other person is not punishable as an abettor. It is therefore a public policy defense.
Non exculpatory public policy defences include Statute of limitation (Sec. 468 Cr.P.C); double jeopardy (Art. 20(2) of the Constitution r/w Sec. 300 Cr.P.C.); diplomatic immunity; testimonial immunity [Art. 20(3) of the Constitution]; plea bargained immunity (Chpt. XXI A, Cr.P.C.); Judicial, Legislative and Executive immunity (Sec. 77 and 78 IPC. Art. 361(2) and (3) of the Constitution); incompetence defenses (Sec. 82 and 83 IPC).
Defenses of this class are not based on the lack of culpability of the actor. They are pure public policy arrangements. The immunity from conviction flows not on account of established non-culpability of the actor or the innocence of the defendant but on account of the countervailing public policy interests recognized, accommodated and provided by the legislature.
Justification Defenses:
In justification defenses the offence caused by the justified behavior remains a legally recognized harm. Excusing conditions as defense constitute part of justification defenses and are available so long as the condition has been caused by a disability, transient or permanent and is present at the time of the offence. Under the special justifying circumstances however that harm is outweighed by the need to avoid a greater harm or to further a larger societal interest. Self-defense or defensive force justifications are all based on a threat in response to which the defensive force is justified. They are often distinguished by one another by the nature of the interest threatened. Statutes too often make special alterations or exceptions to the basic principle of defensive force justification depending on the interests threatened. The general exceptions enumerated in Sections 96 to 106 in Chpt. IV of the IPC fall within this category of defences.
Public authority defences (Sec. 46(3) Cr.P.C.) unlike defensive force justifications need not always be triggered by a threat. Here the actor (an official or even a private individual) must be protecting or furthering a legally recognized interest. But even here the culpability for the presumptive criminal conduct/act is avoided only by recourse to established defenses.
All justifying defences have a similar architecture viz., triggering conditions, which permit a necessary and proportional response. Triggering conditions are the circumstances that must exist before the perpetrator will be eligible to act under a justification. The aggressor must present a threat of unjustified harm to the protected interest. The triggering conditions of a justification defense do not however in themselves provide the privilege to act without restriction. In this category all defences for a successful claim of justification to act must satisfy two requirements (a) it must be necessary to protect and (b) must be a proportional response viz., that the action must be taken only when and to the extent necessary to protect or further, the interest at stake. The inherent proportionality requirement normatively defines the maximum limit of the harm that may be used in protection or furtherance of an interest (Sec. 97 r/w 99 to 106 IPC).
A justification defense provides exculpation for conduct that remains generally criminalized. Justified conduct causes a legally recognized harm or evil and remains generally condemned and prohibited. It is tolerated only when by infliction of the intermediate harm or evil, a greater societal harm is avoided or benefit gained.
While all defenses have the effect of saving the accused from some or all of the punishment he would otherwise receive, only justification defenses achieve this on the ground that the conduct in question was in fact legally permissible. Justifications, along with criminal prohibitions, set the boundary between permissible and criminally prohibited conduct.
There appear to be three (3) distinctive features of justification defenses that distinguish and mark them out as more than mere exceptions to criminal prohibitions:
(i) While (criminal) prohibitions are defined in terms of prohibited means, justifications appear to be set out in terms of preferred ends; criminal law identifies conduct for prohibition in terms of the means employed – killing a human being, or taking property without consent, irrespective of how venal or noble the ends might be for doing so – expressed in the principle - motive is not an essential element of a crime but evidence of motive is admissible since it is relevant as a circumstance tending to prove the commission of an offence – KENNY ([32][32]) . Justifications however are invariably defined in terms of the ends but do not necessarily specify the particular means by which to accomplish those ends e.g.; a person is justified in doing whatever is necessary (within proportionality limits) for the end of defending oneself;
(ii) The other distinguishing feature between mere exceptions to offence definitions and justification defenses is their fault standard. While particular prohibitions (including exceptions built into them) are subject to a variety of different fault standards, justifications are almost always subject to the same independent fault standard, of reasonable belief; thus if the justification of self defense were to be considered as incorporated into the definition of the offence of murder, this would significantly change the scope of criminal liability; someone with an honest though unreasonable belief that deadly force was necessary to protect his own life would be convicted of murder; but if non self-defense is considered the element of the offence (of murder), then any honest belief that deadly force was necessary and proportionate to the threat, however unreasonable, would suffice to negate mens rea and ensure an acquittal of the accused.
(iii) The third feature of justification defenses, distinguished from mere legislated exceptions to criminal prohibitions is that criminal law does not simply spell out justification defenses as permissions to do what is generally prohibited. Law recognizes that when certain individuals, with the requisite legal power, validly decide that their conduct is justified under the circumstances, that decision is legally effective, that is when an individual decides that it is justified to do something that is generally prohibited, that decision brings about a change in what the individual is legally permitted to do. It is required to notice that this principle applies where a magistrate, exercising his legal power decides to issue a warrant as part of a lawful search which otherwise would constitute trespass; a law enforcement officer decides when a citizen is justified in doing things that are generally prohibited in order to assist them in pursuing important law enforcement purposes; a private fiduciary such as a parent decides that it is justified under what circumstances to use force to discipline their children, or even when an ordinary citizen decides when it is justified to use lethal force in their own defense.
It is the importance of a valid decision by the appropriate individual that gives meaning to the crucial distinction between lawful activity including police activity and vigilantism. This is because the justification provisions in criminal legislation do not set out general permissions to engage in socially worthwhile conduct, however that conduct may be defined; on the other hand justification defenses recognize that some people (not others) have the legal power to take decisions. [See generally - Malcolm Thorburn – Justifications, Powers, and Authority ([33][33])].
Thorburn categorizes justification defenses applicants into three generic groups:
(a) Private fiduciaries: Such as parents or those acting in loco parentis, who are required to take decisions as to parental use of discipline force; or a fiduciary relationship arising through unilateral undertaking or agreement as in the case of a doctor providing invasive emergency medical treatment or by means of bilateral agreement for medical treatment in non-emergency situations (Sec. 88, 92 IPC). In such situations criminal law assumes conduct that is otherwise criminal as justified because of the exercise of legal power by the decision maker. The crucial element in the justification of such conduct is the valid decision by an authorized individual who is assumed to exercise lawful decisional power. Normally fiduciary relationships arise qua bilateral arrangements on consent. There are also a great many fiduciary relationships where the fiduciary wields decision-making power over the affairs of a beneficiary who never consented to such an arrangement. In all these cases the law entrusts decision-making power over the affairs of a beneficiary’s affairs to a fiduciary since the beneficiary is incompetent to make the decisions. This is true both of fiduciary relations that arise by operation of law (e.g. as between natural parent and the child) and those that arise by unilateral undertaking (between an adoptive parent and a child, or between a doctor and an unconscious patient in need of emergent medical care) (Sec. 89 IPC). The validity of the decision is however measured by fiduciary standards, i.e. duty to exercise reasonable care and to act in the beneficiary’s interest and not his own;
(b) Public officials: While private fiduciaries are entitled to make decisions about justified interferences with the interests of their specific charges, public officials are entitled to make decisions about when it is justified to interfere with the interests of a whole lot of other people as well. A police officer may determine that it is appropriate for him to arrest any person within his jurisdiction without a warrant under appropriate circumstances. This class of justification defenses though limited to a class of public officials who may exercise the relevant legal power i.e., specific state officials – the class of persons whose interests are subject to that decision making power is considerably broader, usually including anyone within the decision maker’s jurisdiction.
Without available justification defenses public Law enforcement officials would be unable to deliver upon their function. Markus Dirk Drubber (A political Theory of Criminal Law: Anatomy and the Legitimacy of State Punishment) ([34][34]), perceptively observes that a list of police functions looks like list of serious criminal offenses: Drubber points out that The statutory threat of punishment looks suspiciously like ‘menacing’, wiretapping like ‘eavesdropping’, entrapment like ‘solicitation’ (or even conspiracy), searching a suspect’s house like ‘trespass’, searching or frisking the suspect herself like ‘assault’, arresting her like ’battery’, seizing her property like ‘larceny’, a drug bust like ‘possession of narcotics’ (with or without intent to distribute), indicting or convicting like ‘false imprisonment’, and executing her like ‘homicide’ (murder to be precise).
Law also recognizes that public (police) officials are entitled to effect arrests, i.e. are justified in doing what would otherwise constitute an assault.
Law assumes that there is a quasi-fiduciary nature of relationship between public officials and the citizenry. [Robert Flannigan, The Fiduciary Obligation ([35][35]); Evan J. Criddle, Fiduciary Foundations of Administrative Law ([36][36])]; and
(c) Ordinary citizens with Public Powers: Situations occur when ordinary/private citizens exercise decision making when caught in extraordinary situations, such as self-defense (broadly including not only defense of self but also defense of property and property of others), citizen’s arrest, and (where the defense exists) lesser evils. Normally exercise of public powers by citizens caught in extraordinary situations arises because other, better qualified (i.e. the relevant class of public officials), are temporarily unavailable. Private citizens do not normatively have a standing power to make decisions regarding arrest without a warrant, lesser evils and the like. It is a juridically recognized and a generally accepted matter of criminal law doctrine that private citizens do not have standing power to make these classes of decisions; rather, they are entitled to decide when it is appropriate to use force in self-defense, to prevent a greater evil or to effect an arrest only where recourse to State officials is impracticable. The authority of private individuals to exercise public power is however recognized in the matrix of the larger enterprise of criminal law as intrinsic to a temporal imminence of society requirement coupled with the absence of a lawful alternative course of action, i.e. recourse to the authorized public authority. Thus the decision making authority of ordinary citizens is derived entirely from their role as stand-ins for public officials who are unable to make those decisions themselves.
The source of ordinary citizen’s legal power to decide when it is permissible to violate criminal prohibitions in order to defend oneself, to effect an arrest, or to prevent a breach of peace, or to prevent a greater evil is clearly seen to be the derivative of the power of frontline State officials such as police officers to make such decisions.
Law subjects private fiduciaries, public officials and private citizens who exercise decision making powers affecting for instance the life and liberties of others in circumstances such as citizen’s arrest or private defense justifications to substantially similar standards of scrutiny. A police officer could claim immunity from investigatory process or in appropriate cases prosecution only on legislatively authorized/mandated immunity and not on specious grounds of vague public interest. All claims of self-defense justifications whether by private individuals or by members of law enforcement must in law be investigated and tried according to similar, well-defined principles and on vigorous patterns of established reasoning.
When required to determine whether a police officer was justified in carrying out a search, an arrest or in killing an individual on the claim of self defense, the State (the investigating officer) and at the appropriate stage the courts are required to pursue the same sort of reasoning as they do when asked to determine whether a private actor was justified in carrying out conduct that a private fiduciary had deemed to be justified and not a distinct or special standard.
A theoretical assumption of a neat divide and clearly apparent classification between public officials and private citizens does not hold up in contemporaneous practice either. At an accelerating pace governments are privatizing services that were once considered the non-derogable core of governmental activity. Even where governments are not privatizing such services, they are often retreating from the provision of these services, leaving the private sector to provide them. This phenomenon is emphatically illustrated in the steady growth of the private security industry across the developed and developing world. In all such cases putatively private citizens – whether they be private security guards, private prison employees, or mercenaries – engage in conduct that is generally prohibited, claiming criminal justifications in their defense.
The functional paradigm of law enforcement officials: Police officials are endowed with a mantle of sovereign authority by the State to enforce the laws and protect people. They possess awesome powers. They perform their duties under hazardous conditions and ever with the vigilant public and now the media eye upon their performance. Police officers are permitted only a margin of error in judgment under conditions that impose high degrees of physical and mental stress. They function as field soldiers who enforce the laws and preliminarily determine the guilt of those who are perceived to have transgressed the law. They inherit a lawful grant of power to arrest and detain individuals until the court, at the appropriate level in the judicial branch (another organ of the State) passes a final judgment of guilt for each alleged offender. Police officers also have the authority to use deadly/lethal force in special circumstances legislatively conditioned and authorized that warrant employment of such level/degree of force. The laws structuring a constitutional government clearly, and police policies too presumptively, limit an officer’s ability to use unrestricted force.
Under general principles of criminal law, although an officer having the right to arrest a misdemeanant may use such force as is necessary to effect his or her purpose, provided it is not excessive, an officer has no right, except in self-defense to shoot or kill a misdemeanant in attempting to arrest him/her ([37][37]).
Pragmatic, philosophical and moral dilemmas encompass the use of lethal force by law enforcement officials while attempting to arrest/apprehend suspected criminals. The problematic and the conundrum lies in determining whether peace officers, entrusted to secure persons for judicial proceedings may hand down the unappealable judgment of death on the street even before guilt is determined at trial.
As Sir Robert Mark, the Commissioner of Metropolitan Police, London pointed out ([38][38]), the police discharge the communal will, not that of any government minister, mayor or other public official, or that of any political party, whilst remaining fully accountable to the community for what they do or fail to do---- We are taught at the outset of our police careers that obedience to orders affords no defense for wrongdoing or misuse of authority.
Elsewhere in the work (page 81), Sir Mark writes: Attempts to achieve political objectives by coercion or violence are, of course, unlawful and in a sophisticated society ought to be unnecessary but to counter them by excessive violence may in practice go far to help militants to achieve their aims or allow them a degree of public sympathy or support which they would not otherwise receive. The police therefore, both as a matter of law and strategy, adhere strictly to the doctrine of minimum force, notwithstanding that this may involve acceptance of minor casualties and harassment. This does not, of course, imply willingness to allow militant demonstrators their way, but to deny them success by the least violent means.
Contours of the right of private defense under the IPC:
Defensive force/self-defence justifications and the contours of this general exception to criminality are spelt out in Sections 96 to 106 of the IPC. In particular, Section 99 IPC explicates the non-derogable principle that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. This doctrine of proportionality thus overarches the entire spectrum of the right of private defence. The provisions of Section 100 IPC contour the right of private defence of the body extending to causing of death; the provisions of Section 101 to causing any harm other than death; the provisions of Section 103 the right of private defence of property extending to the causing of death; and the provisions of Section 104 contour the right of private defence extending to the causing of any harm other than death where the offence, the committing of which, or the attempting to commit which, be theft, mischief or criminal trespass , other than of the nature described in Section 103. Sections 96 and 97 are preambular in scope; Section 98 enumerates the right of private defence against the conduct of a person of unsound mind and other disabilities that would otherwise constitute the conduct of such person as a non-offence. Section 102 defines the point of commencement and continuance of the right of private defence of the body, while Section 105 defines the point of commencement and continuance of the right of private defence of the property. Section 106 spells out the right of private defence against deadly assault which reasonably causes the apprehension of death extending to causing harm to an innocent person if the person exercising the right of private defence be so situated that he cannot effectively exercise that right without risk of harm to an innocent person.
Our Courts (in complementarity with the jurisprudence of other civilized legal systems), have consistently taken the view that the doctrine of private defence inheres the necessary corollary that the violence, which a person defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The Courts have further held that the exercise of right of private defence must never be vindictive or malicious –Jai Dev and another v. State of Punjab ([39][39]).
Again in State of U.P. v. Ram Swarup and another([40][40]) (Per: Chandrachud, J), the Apex Court reiterated the principle thus (paragraph 14 of the report):
The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing.
The Court reiterated that the extent of harm that may be lawfully inflicted in self-defence is limited. It is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted, that is, the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted.
Enumerating the contours of the burden of proof enjoined by Section 105 of the Evidence Act in the context of the general exceptions in Sections 96 to 106 IPC, the Apex Court in Ram Swarup (40 supra) and after referring with approval to earlier decisions in K.M. Nanavati v. State of Maharashtra([41][41]); Dahyabhai Chhaganbhai Thakker v. State of Gujarat([42][42]); Munshi Ram v. Delhi Administration([43][43]); and the judgment of the Allahabad High Court in Rishikesh Singh v. State ([44][44]), held that the burden which rests on the accused to prove that any of the general exceptions are attracted does not absolve the prosecution from discharging its initial burden and the primary burden never shifts except in cases where a statute displaces the presumption of innocence. The evidence on record though insufficient to establish the exception, may be sufficient to negate one or more of the ingredients of the offence i.e., the accused may fail to establish affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under Section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. The Court also clarified that the burden on the accused to prove the exception is not of the same rigor as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea.
The above principles were reiterated in Yogendra Morarji v. State of Gujarat([45][45]).
In Kulwant Singh v. State of Punjab([46][46]) (Per: S.B. Sinha, J), the Apex Court reiterated the principle that the right of private defense is preventive and not retributive in nature and that the right is available to a person who is suddenly confronted with immediate necessity of averting an impending danger which is not of his own creation and that whenever a right of private defense is claimed, it must be judged from the nature of occurrence, the circumstances in which it had occurred and whether the person claiming such right has acted legitimately. Attending circumstances would be relevant for judging the same.
In State of M.P. v. Ramesh([47][47]) (Per: Arijit Pasayat, J), the Apex Court while reiterating the established principles pointed out that in order to find whether the right of private defense is available to an accused, the entire incident must be examined with care and viewed in its proper setting. To claim a right of private defense, extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The Court also held that in order to find out whether the right of private defense is available, the injuries received by the accused, the imminent threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. The Court reiterated the important ingredient of the doctrine of defence justification viz., that it is essentially a defensive right and is available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of a retribution, expected to repel unlawful aggression and not as retaliatory measure. It is not a plea or a devise whereby an attack may be a pretence for killing. The right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived, ruled the Court in Ramesh (47supra).
In V. Subramani & another v. State of T.N.([48][48]) (Per: Arijit Pasayat, J), the Court pointed out that whether in a particular set of circumstances a person legitimately acted in exercise of right of private defense is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such question can be laid down. All the surrounding circumstances must be considered. The Court also pointed out that the right (private defense) commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of danger to the body continues. The Court reiterated that in order to determine whether the right of private defence is available or not, the injury received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
In Bishna v. State of W.B.([49][49]) (Per: S.B. Sinha, J) the doctrine of the right of private defense was revisited. The Court reiterated the principle that a right of private defence cannot be claimed when the accused are aggressors, when they go to the complainant’s house well-prepared for a fight and provoke the complainant party resulting in quarrel and taking undue advantage that the deceased was unarmed causing his death; and also that where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding of the attack or forestalling the reasonable apprehension of grave injury from the side of the accused.
These principles were reiterated in Laxman Singh v. Poonam Singh & Ors.([50][50]); and in Triloki Nath vs State of U.P. ([51][51]).
The decisions considered above are all in the context of the applicable principles which should govern decision making by the Courts in cases where an accused pleads a self-defense justification or where circumstances involving application of the General Exceptions in Chapter-IV IPC are implicated, in the facts and circumstances of the case.
Nevertheless, the principles enunciated in the precedents with regard to the circumstances, the restrictions and the limitations on the legitimate exercise of the right of private defense apply to the stage of recording of information (conveying information as to an act of homicide, by the perpetrator of such homicide while asserting that the homicide was in consequence of the exercise of right of private defense). These principles equally apply and shall inform the investigatorial process into cognizable offences, under the provisions of the Cr.P.C., as they do to the trial on a charge of culpable homicide where the accused pleads a self-defense justification for the act.
The right of self-defense is based on necessity and without such necessity the right to resort thereto does not exist ([52][52]). In Munney Khan v. State of M.P.([53][53]), the Supreme Court explained the right of private defense as being essentially a defensive right circumscribed by the statute available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose. This right is available against an offence and, therefore, where an act is done in the exercise of right of private defense, such an act cannot give rise to any private defense in favour of the aggressor in return. This would be so even if the person exercising the right of private defense has the better of his aggressor provided he does not exceed his right, because the moment he exceeds it, he commits an offence. If there is no initial right of private defense then there can hardly be any question of exceeding that right. An aggressor cannot claim this right nor can the right be used as a shield to justify an act of aggression. The quantum, nature and duration of the force that is legitimate in the exercise of the right of private defense depends upon the peculiar circumstances of each case and that is a matter for investigation and ascertainment of the surrounding facts and relevant circumstances, explained the Court in Munney Khan.
To reinforce the contention [that on the first information conveyed (by a Police Officer) in cases involving the death of civilian(s) in a police encounter, no crime need be registered], the learned Advocate General places reliance on the judgment in Costao Fernandes vs State at the instance of D.S.P., CBI, Bombay ([54][54]). Hansaria, J (G.N.Ray,J concurring) quashed the prosecution against the appellant. The appellant – a Preventive Officer of the Customs Department, while on duty to apprehend smuggling activities saw the deceased speeding away with smuggled gold worth rupees 8 crores in a car. The appellant chased the deceased on a motorcycle and attempted to stop the vehicle. The deceased resisted and in the ensuring scuffle the deceased inflicted as many as 22 injuries including abrasions and incised wounds at various parts of the appellant’s body. There was evidence on record that the appellant was trying to remove the ignition key of the vehicle being driven by the deceased. The appellant was prosecuted for the offence u/Sec. 302 IPC for having caused the death in the process of exercising his right of private defense. Before the Supreme Court it was contended on behalf of the respondent-State that if a Customs Officer attempting to stop a vehicle involved in smuggling activities had faced resistance from the driver or occupant of the vehicle which had necessitated taking recourse to right of private defense and in the process, the driver or the occupant had suffered injuries which caused death, the officer concerned cannot claim protection (at the threshold) for interdicting the criminal trial, by recourse to the provisions of Sec. 155 of the Customs Act, 1962 (the Act). According to the State the officer must face the criminal trial where the question of right of private defence, if raised, is to be considered in the light of the evidence adduced in the case. Sec. 106 of the Act empowers the appropriate officer, if he has a reason to believe that any aircraft, vehicle or animal … is being, or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, to stop any such vehicle, animal or vessel or in the case of an aircraft, compel it to land; to search the air craft, vehicle or vessel; to break open the lock of any door or package, if the keys are withheld; and generally to order – compel a vessel to stop or the aircraft to land; if it fails to do so to give a chase and give a signal for the vessel or air craft to stop or land, as the case may be; and if it fails to do so, to fire upon. Sec.106(2)(b) also empowers the appropriate officer to use all lawful means for stopping any vehicle or animal and where such means fail to fire open such vehicle or animal. Sec.155 of the Act enjoins, inter alia, that no prosecution shall lie against any officer of the Government for anything done or intended to be done in good faith, in pursuance of the Act, the Rules or the Regulations. On behalf of the State it was contended that the appellant’s injuries were self-inflicted, a contention which was rejected by the Supreme Court on an analysis of the material on record including the wounds certificate. While quashing the prosecution, the apex court held that the very purpose of Sec.106 of the Act would be frustrated, if a Customs Officer in exercise of his powers and duties is not permitted to take all consequent action necessary for stopping the conveyance and conducting its search. If in the course of such action it becomes necessary to immobilize the driver or the occupant of a vehicle, then the officer has ample authority u/Sec.106. In view of the provisions of Sections 106 and 155 of the Act and the peculiar facts and circumstances of the case, the court held that the facts, prima facie, support the appellant’s claim for protection u/Sec. 155 of the Act and it would not be proper to disallow such protection at the threshold and subject the appellant to a full-fledged trial on the charge of murder.
It requires to be noticed that in Costao Fernandes (54 supra) while quashing the criminal proceedings against the appellant the court (per the concurring opinion of Ray,J) delineated the caution that must be exercised (para-4 of the report):
4. It is, however, necessary to indicate a note of caution in the matter of consideration of protection against criminal liability if sought for under Section 155 of the Customs Act at the threshold of the Criminal trial. Since such immunity is claimed at the threshold, the Court should carefully scrutinize the relevant facts and materials placed before it for the purpose of finding (a) that the concerned Officer was authorised to act for prevention of smuggling activity and in fact had bona fide acted in exercise o his duties and functions in preventing the smuggling activities being carried or about to be carried (b) there are prima facie materials to indicate that such officer had honestly attempted to stop the conveyance for effecting search of the same (c) that such an attempt to stop the vehicle was sought to be frustrated either by not stopping the vehicle or by attempting to forcibly taking away the vehicle despite attempt by the concerned officer to stop the vehicle and (d)w that recourse to use of force on the driver or occupant of the vehicle was apparently necessary to immobilize the vehicle or to save himself from imminent danger of personal risk. If on consideration of the materials placed before the Court, a possible view can be objectively taken that in discharge of the duties and functions under Section 106 of the Customs Act that a competent Officer had bonafide used force and such use of force is not just a ruse for high handed action on his part which was not at all necessary in the facts of the case but prima facile there is justification for the course of action pleaded by the officer, the Court would give effect to the protection under Section 155 of the Customs Act by dropping the criminal case initiated against the concerned Officer. The facts already on record, some of which have been indicated in the judgment of my learned brother, indicate that the appellant was on official duty as Preventive Officer to look out for smuggling activities at the relevant time and in discharge of his official duties he had chased a speeding Contessa car driven by the deceased in an attempt to stop the car for searching the same. As a matter of fact, he overtook the car and having disclosed his identity asked the deceased to stop the car but when the driver had attempted to flee with the car, he jumped into the same and tried to take out the ignition key in order to stop the vehicle. It has not been revealed that appellant had received various injuries including incised wounds which on the basis of medical report are likely to have been caused at the time when attempt to stop car was made. Such facts prima facie support the appellant's claim for the protection under Section 155 of the Customs of Act to the appellant but subject him to a full fledged trial on a charge of murder by pointing out that it would be open to the appellant to plead for right to private defence in such trial, like any other accused.
In an earlier decision in Bhappa Singh vs Ram Pal Singh and Ors.([55][55]) the officials of the Customs & Excise Department raided a jewellery shop of the appellant. On being attacked, the raiding party fired shots. The appellant lodged a complaint that the members of the raiding party had come to commit dacoity in the jewellery shop. The High Court quashed the complaint. The Supreme Court (three Judges Bench) found from the facts on record that the Customs Department had not gone out to commit dacoity nor had it trespassed but had conducted the raid to find out if any illegal activity was being carried out in the premises. Sec.108 of the Gold (Control) Act 1968 [which is in pari materia, Sec. 155 of the Customs Act 1962) was relied upon by the High Court for quashing the complaint. The Supreme Court concurred with this view. While upholding the judgment of the High Court, the Supreme Court however recorded a note of caution (in para 7 of the report), which we consider appropriate to reproduce:
7. Even though what we have just stated is a general prima facie impression that we have formed at this stage on the materials available to us at present, it may not be possible to come to a conclusive finding about the falsity or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) act, if cases of this type are allowed to be pursued to their logical conclusion, i.e., to that of conviction or acquittal. In this view of the matter we do not feel inclined to upset the impugned order, even though perhaps the matter may have required further evidence before quashing of the complaint could be held to be fully justified. The appeal is accordingly dismissed.
Whether an act (of firing) by Police Officer(s) had caused the death and if so had been caused in circumstances falling within the General Exceptions in Chapter IV IPC, is a mixed question of law and fact. The recording/registering officer under Sec. 154(1) Cr.P.C. cannot be presumed the authority or omniscience to divine the complex law/fact matrix from the information received and at that stage.
The Andhra Pradesh Police Officers’ Association would urge that Section 154 (1) Cr.P.C., on text and principle accommodates a discretion in the recording officer, to consider whether a complaint conveying information as to the commission of a cognizable offence together with the factual narrative indicating a claim to one or more of the general exceptions (in Chapter-IV IPC) requires to be registered as FIR. In view of the provisions of Section 6 IPC the offences enumerated in the Code must be read subject to the provisions of Chapter-IV IPC and therefore contends Sri Uday Lalit (the learned senior counsel, for the 10th respondent), the recording officer acts within his inherent discretion under Section 154 (1) Cr.P.C. in declining to record the information and registering the FIR when the complaint conveys information that facially indicates commission of a cognizable offence but taken together with the general exceptions in Chapter-IV IPC (since the information also claims the benefit of one or more of these exceptions), the information does not convey facts disclosing commission of a cognizable offence and hence does not warrant registering the FIR. It is further contended that to interpret the provisions in Section 154 (1) Cr.P.C. otherwise would lead to disastrous consequences. The elaboration in this regard is that wherever a complaint is made, for instance as to deprivation of life or liberty by judicial authority or pursuant to a judgment or order of a Court; by a child under seven (7) years of age or by a child above seven (7) and under twelve (12) but of immature understanding; by a person of unsound mind; or by a medical authority, it would be obligatory for the recording officer to register a FIR and set the investigatorial process into motion. Such a result would destabilize equilibrium and would be productive of immense and avoidable public mischief, is the contention.
In our considered view these apprehensions are misplaced. Sections 77 and 78 IPC carve out a general exception from culpability in favour of judicial authority or acts done pursuant to a judgment or an order of a Court. Where the information conveyed is that the conduct complained of is by a judicial authority or pursuant to a judgment or an order of the Court, the information is inherently not as to the commission of any offence (in view of Sec. 6 r/w Sec. 77 & 78 IPC); further convictions and sentences are by the court, the officer performing the functions of office. Where however the information is to the effect that a person masquerading as judge or not acting in such capacity had committed a cognizable offence, then and in such circumstance the recording officer must record the information and register the same as a First Information Report. We perceive no serious or grave public mischief ensuing as a consequence of interpreting Section 154 (1) Cr.P.C. on its normal textual terms.
It requires to be noticed that Article 261 of the Constitution enjoins that Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. The appointment of a judge is a public act and the particulars and designation of appointment as a judge are matters of public record. Even if a mischievous complaint is made that a named individual masquerading as a judge had passed an order; whether the named individual is a judge is an easily discoverable public act and a matter of public record. Even the provisions of Section 81 of the Evidence Act enjoin that a Court shall presume the genuineness of any official gazette or government gazette. Judicial appointments of every hue and hierarchy through out the territory of India are gazetted appointments.
For reasons alike, as discussed in the preceding paragraphs, complaints against persons entitled to incompetence defenses such as infants (Sections 82 and 83 IPC) or against medical authority (Sections 88, 89 and 92 IPC) may either require to be recorded and registered as FIR or not, depending upon the idiosyncratic facts, context and circumstances of the information. In any event, the failure to record the information or register the FIR wherever warranted by law, is productive of far greater public mischief than the inconvenience occasioned by recording and registering the FIR.
It must also be recognized that the exceptions in favour of judicial authority or the immunity vouchsafed to acts done pursuant to an order or judgment of a Court comprise public policy class of defenses. The language of Sections 77 and 78 IPC shows that the exculpation is absolute and not hedged in by limitations as in the case of private/self-defense justifications. As we have earlier herein considered on analyses of the textual, juridical and precendential exposition of defense justifications, private defense is a right available as only a preventive and not a retributive measure and proportionality of the defensive force employed to an initial aggression, is an integral component that defines the contours of justifiable claims to a defensive force justification. The general exceptions enumerated in favour of judicial authority or in respect of acts done pursuant to a judgment or order of the Court are thus qualitatively dissimilar and provide an absolute exculpation. We perceive no substance in this contention except sophistry.
Empirical analysis, textual and curial authority with respect to self defense justifications considered supra indicates that the need of self-preservation is rooted in the doctrine of necessity. It is the rule of necessity to which a party may have a recourse under certain situations to prevent greater personal injury or injury to others which he may apprehend. Self-preservation is more an instinctive than a cognitive condition of a majority of the living species and in particular human beings. This instinct is recognized a lawful defense in the laws of civilized Nations and finds legislative expression in Sections 96 to 106 IPC. These statutory provisions per se and as expounded in decisions are clearly to the effect that the Exceptions are hedged in and circumscribed by conditions and limitations including the imminence and gravity (standard) of the threat and conditions as to the requirement of proportionality of the response/defense.
The basic elements of self-defense by employment of deadly/lethal force include (1) the perpetrator must have reasonable grounds to believe that he was in imminent danger of death or serious body harm; heated words, vague threats or the possibility of future harm does not suffice; the harm must be serious and imminent; (2) the perpetrator actually believed that he or any other person was in such imminent danger; establishing this subjective belief may normally require the perpetrator to make a statement or testify as the case may be; (3) the danger was such that the perpetrator could only save himself by employment of deadly force; (4) the perpetrator had employed no more force than was necessary in all the circumstances of the case; and (5) the perpetrator was not the initial aggressor.
Self-defense justification is normally an all or nothing strategy. In order to establish it, the perpetrator has to admit being at the scene of offence with a weapon, which he used intentionally to harm the aggressor. He has to admit that he injured/killed the aggressor. The facts gathered must establish and in a given situation the perpetrator may have to establish that a reasonable person in his place would have acted similarly. Self-defense justifications normally imply a rational response to a very dangerous situation, and normally eschew claims of mental illness, insanity, defenses based on intoxication or drug use, or other defenses enumerated as General exceptions to criminality.
Conclusion on Issue No.1 :
On a careful consideration of the relevant statutory provisions; the binding and persuasive precedents; the normative architecture of private defense justifications generally and in the context of the provisions of the IPC; and the constitutional values that inform and structure our governance processes, we hold that the information conveyed to the officer in charge of a Police Station intimating the death of any person as a consequence of firing by law enforcement officials of the State (notwithstanding a claim as to the death occurring while exercising the right of private defence) must invariably and without exception be registered as FIR u/Sec. 154(1) Cr.P.C.; and investigation u/Sections 156/157 must follow.
Sri Kannabiran, the learned senior counsel (for the 9th respondent in W.P.No. 15419 of 2006) cited the Privy Council decision in Palmer v. The Queen ([56][56]) and the House of Lords’ decision in R. v. Clegg ([57][57]) to support the contention that if the plea of self-defense fails in a case resulting in death in an encounter between civilians and police, the conviction for murder under Section 302 IPC must necessarily follow. We refrain from pronouncing on this aspect of the matter as this aspect does not fall for consideration before this Bench per se or as integral to any of the issues formulated for our consideration.
The question whether on the failure of a plea of self-defense, in cases of death resulting from a police encounter, the accused police officer(s) must invariably be convicted for murder or may be convicted for culpable homicide not amounting to murder, is an aspect that is more appropriately determined by the appropriate Court of Session when trying the charge.
There is an ancillary contention, which we consider. Sri Tarakam, the learned Senior Counsel for the petitioners (W.P.No. 15419/06) has urged that the first information conveyed by a police officer in case of encounter death(s) constitutes an admission of commission of the culpable homicide of murder and therefore registration u/Sec. 154(1) Cr.P.C. is inevitable. We have already concluded that on information conveyed of death(s) in a police encounter recording and registering of such information is a non-derogable executive obligation u/Sec. 154(1) Cr.P.C.
In Faddi vs State of M.P. ([58][58]) the court held:
Where the person who lodged the first information report regarding the occurrence of a murder is himself subsequently accused of the offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove against him, his admissions which are relevant under S. 21 (Evidence Act).
Again in Aghnoo Nagesia vs State of Bihar ([59][59]) the court held that the information conveyed to the police u/Sec. 154 Cr.P.C. is per se not substantive evidence but may be used to corroborate the informant u/Sec. 157 of the Indian Evidence Act or to contradict him u/Sec. 145 of the said Act, and if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct u/Sec. 8 of the Evidence Act. The court clarified that a confession is an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negate the offence alleged to be confessed. The court held:
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25. The confession includes not only the admission of the offence but also other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S.25 is lifted by S.27 (Evidence Act).
In any view of the matter, the information conveyed in cases of encounter deaths cannot be construed as a confession of the offence of culpable homicide since the information asserts the exercise of the right of private defense in justification of the conduct.
Issue No. 3 - Analysis:
While the petitioners and the others supporting the petitioners’ contention urge that even where the first information is conveyed by a police officer to the officer in-charge of a police station (intimating the death of private individual(s) in an exchange of fire while claiming that the police had to resort to firing in self-defense and consequent on the other party firing in the first instance), a FIR must be registered assuming the conduct of the police officer(s) to be culpable homicide; the State and the 10th respondent (W.P.No. 15419/06) contest this submission and submit that an inquest enquiry is adequate.
The learned Advocate General and Sri Lalit chorus that there is neither substantial prejudice occasioned to the rule of law concerns nor is there violation of the provisions of Cr.P.C. since in all cases of death of civilian(s) in exchange of fire with the law enforcement agency, an inquest is invariably conducted, the Cr.P.C. itself provides for a intermediary process of inquest under Secs. 174 to 176 Cr.P.C. and under Sec.176 the inquest could be in addition to or in place of an investigation.
The State assumes and the A.P. Police Officers’ Association (R-10 in W.P.No. 15149/06) echoes this assumption, that an inquest or an investigation by an officer in charge of a police station u/Sec. 174(1) Cr.P.C. is an effective alternate if not a substitute to the recording of first information u/Sec. 154(1) Cr.P.C. and investigation u/Sec.157 Cr.P.C.
It requires to be noticed that it is now the settled legal position that the object of the proceedings u/Sec. 174 is merely to ascertain whether a person has died under suspicious circumstance or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of the proceedings u/Sec. 174 Cr.P.C. – vide Pedda Narayana vs State of A.P.([60][60]).
In Smt. Shakeela Abdul Gafar Khan (12 supra) (a case of death on account of injuries received during police custody), the Supreme Court observed (at Para 21 of the report) that the stand of the State for not registering the FIR and in treating the information as a statement recorded u/Sec. 174 Cr.P.C., is fallacious. The Supreme Court stated that if it were brought to the notice of the police that somebody has beaten the deceased, the FIR ought to be registered. The following observations of the Supreme Court are apposite:
21. … An interesting explanation has been given by CW 1. He has stated that the statements were recorded in terms of Section 174 of the Code and in order to report to the coroner as regards the circumstances of the death. At that point of time sentiments were high. The allegations were looked into and the matter was reported to the higher authorities to order an independent Crime Branch inquiry. This witness also stated that he had also made enquiries from the accused and other police officials and tried to obtain their version. The witness stated that he had personally questioned the accused and two other PSIS, and he perused the papers, medical certificate and station diary etc., and submitted his report through ACP Irani. The official acted as if he was deciding the guilt or otherwise of an accused. The permissible area of application of mind is limited to finding out existence of a cognizable offence and nothing beyond that.
22. It is a fairly well settled position in law that even at the time of taking cognizance the court is not required to find out which particular person is the offender, and the cognizance is taken of the offence. The course adopted by the official certainly tends to make a mockery of law. The official stated that he had requested the higher authorities to conduct a Crime Branch enquiry. It has not been shown as to what was the outcome of such enquiry, if any. We will revert back to this aspect after dealing with the question whether the accused is guilty.
Again in Radha Mohan Singh and Others vs State of U.P.([61][61]), the Supreme Court referred to and quoted with approval the principle spelt out in Pedda Narayana (60 supra) and reiterated that an investigation u/Sec. 174 Cr.P.C is limited in scope and confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injury on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined u/Sec. 175 Cr.P.C. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit or scope of the proceedings u/Sec. 174 Cr.P.C, reiterated the Supreme Court. The Court further held that neither in practice nor in law is it necessary for the person holding the inquest to mention all these details. As observed in Radha Mohan Singh, the decision in Pedda Narayana was approved by a three Judge Bench in Khujji vs State of Madhya Pradesh([62][62]); and the nature and purpose of an inquest held u/Sec. 174 Cr.P.C was also explained in Amar Singh vs Balwinder Singh([63][63]).
It is therefore the clear and established legal position, statutorily explicit and precedentially affirmed that an inquest and the concomitant investigation u/Secs. 174 to 176 Cr.P.C is neither a substitute for nor inheres the rigor of an investigation u/Sec. 157 Cr.P.C which must follow on the registration of a FIR as regards a cognizable offence, u/Sec. 154(1) Cr.P.C. Whether to pursue an investigation (u/Sec. 157 Cr.P.C) is not within the realm of an absolute and uncanalised discretion or the prerogative of the officer in charge of a police station. The discretion is a statutory discretion mandated by legislation and must be neutrally and professionally exercised. The purpose of the investigation u/Sec. 157 Cr.P.C. is to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of an offender.
The scheme of the Cr.P.C. clearly envisages symbiotic and reinforcing powers and authority conferred on the police (representing the Executive); and the Magistrate (representing the Judicial branch), in the raft of procedural prescriptions. There is clearly discernable consecration of oversight functions to the Magistracy and the courts of Criminal jurisdiction. To illustrate, Sec. 37 obligates every person to assist a police officer and a Magistrate as well, in the areas specified in the said provision. Sec.39 enjoins that every person aware of the commission of, or the intention of any other person to commit, any offence punishable under any of the Sections of the IPC (enumerated in Sec. 39 Cr.P.C, including Sec. 302 IPC), shall forthwith give information to the nearest Magistrate or police officer, of such commission or intention. Sec. 40 Cr.P.C enjoins officers employed in connection with the affairs of a village and every person residing in the village to communicate to the nearest Magistrate or to the officer in charge of the nearest Police Station, any information in his possession respecting the matters enumerated in Sec. 40. The provisions of Chapter V (relating to arrest of a person), reinforce the principle that in the scheme of the Code the judiciary represented by the Magistracy is intimately associated with control and oversight of the processes of arrest, apart from exercising himself the power of arrest (Sec.44).
Coming to Chapter XII Cr.P.C., when information is received by the officer in charge of the Police Station relating to the commission of a cognizable offence, the officer shall record and register the same [Sec. 154(1)] and must forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. The Magistrate is thus kept informed and at the earliest point of time, as to the registration of the FIR. This provision ensures effective oversight and control of the process of investigation, subject however to the investigatorial autonomy of the police. The provisions of Sec.159 Cr.P.C. also are to ensure effective control and oversight by the Magistrate on the process of investigation. The reporting obligation by the police (to the Magistrate) and the power conferred on the Magistrate to authorize the detention of the accused u/Sec. 167 Cr.P.C. reinforces the control and oversight functions of the Magistrate. We have earlier in this analysis, considered the scope of Sec. 173 Cr.P.C. including the obligation of the police to forward the police report (to the Magistrate), on completion of the investigation.
When it comes to inquest proceedings however, the process as spelt out in Secs. 174 and 175 Cr.P.C. does not associate the Magistrate (except the District Magistrate or the Sub-Divisional Magistrate, who are executive agencies of the State as distinct from a judicial Magistrate) with the process. Sec. 176(1) Cr.P.C. also consecrates the power to inquire into the cause of death, to a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate empowered in this behalf by the State Government or the District Magistrate.
Sec. 176(1A) Cr.P.C. however carves out an exception. In cases of custodial death, disappearance or rape, in addition to the inquiry or investigation held by the police (inquest inquiry), it is mandated that a Judicial Magistrate or the Metropolitan Magistrate shall hold an inquiry. In a case of inquest therefore (except in cases of custodial death, disappearance or rape), neither is the judicial Magistrate associated with the inquest process nor do the statutory provisions enjoin a reporting obligation by the police to the Magistrate.
Cases of civilian death(s) in police encounter do not fall within the rubric of custodial death, disappearance or rape. The inquest inquiry is thus outside the oversight locus of the judicial branch as represented by the Magistrate. Such oversight is however statutorily entrenched whenever information as to the commission of a cognizable offence is recorded and registered u/Sec. 154 Cr.P.C.
Krishna Iyer, J in Nandini Satpathy (30 supra), quoted with approval the observations of Brandies,J in the dissenting opinion in Olmstead vs United States ([64][64]) :
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizens. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt of law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justified the means … would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
Life and liberty are basic human rights ensured to every person in every civilized society. Article 21 of the Constitution mandates that No person shall be deprived of life or personal liberty except according to procedure established by law. This constitutional injunction is to all persons including the State. In the absence of legislated exceptions, a person accused of even a heinous or the gravest offence must under the law be charged and convicted by a judicial authority after a due process and infliction of the sanction of deprivation of liberty or extinction of life (as the case may be) must be administered only on the basis of a judicial order.
As the State does not claim nor suggest any special or extraordinary legislative authority, for employment of lethal force against a Maoist/extremist/naxalite and adopts the position that the deaths in the police encounters are invariably as a consequence of the exercise of the right of private defense by police officers, it is mandatory that the governance process, including the recording, investigatorial and where warranted the charge and trial processes must conform to the injunctions of Article 21.
In the initial years of our constitutional discourse the scope of Article 21 was narrowly construed as only a guarantee against executive action unsupported by law -- Gopalan A.K. v. State of Madras ([65][65]), until in the decision in Maneka Gandhi v. Union of India([66][66]), the court pronounced that a procedure prescribed for depriving of a person of his life or personal liberty must be reasonable, fair and just and must conform to the requirements of Articles 14 and 19 as well (See also Francis Coralie Mullin v. Union Territory Delhi, Administrator([67][67]).
In interpreting the obligation of the State, its law enforcement officers, the officer in charge of a police station and the investigating officer cannot be oblivious to the jurisprudential verity that the provisions of either the substantive Penal Code or the Cr.P.C., cannot be construed as disparate or disjointed legislative injunctions, infinitely flexible according to considerations of practicality and subjective predilections of the officials of the executive branch enjoined the duty to administer the law. The provisions of the Cr.P.C. must be understood and executed in conformity with the contemporaneous contours of Article 21 as by curial opinions expounded.
Article 21 encompasses a prohibition against the deprivation of life or personal liberty by a law enjoining a procedure that is not reasonable, fair or just; or which is arbitrary, whimsical or fanciful – Francis Coralie Mullin (67 supra).
The right to life includes a raft of obligations upon the State; to preserve the life of every person by offering immediate medical aid to every patient, regardless of whether he is an innocent or a guilty person – Parmanand Katara v. Union of India([68][68]); the liberty against domiciliary visit by the police without authority of law – Kharak Singh v. State of U.P.([69][69]) ; the right against solitary confinement – Sunil Batra v. Delhi Admn.([70][70]); the right against confinement in bar fetters – Charles Sobhraj v. Supdt., Central Jail, New Delhi([71][71]); the right to speedy trial – Hussainara Khatoon v. Home Secy., State of Bihar([72][72]), Kadra Pahadiya v. State of Bihar([73][73]); the right to legal aid – Madhav Hayawadanrao Hoskot v. State of Maharashtra([74][74]); the right against handcuffing – Prem Shankar Shukla v. Delhi Admn.([75][75]); the right against delayed execution – T.V. Vatheeswaran v. State of T.N.([76][76]); the right against custodial violence – Sheela Barse v. State of Maharashtra([77][77]); and the right against public hanging – Attorney General of India v. Lachma Devi ([78][78]).
In Prabhu Dayal Deorah v. District Magistrate([79][79]) (Per: K.K. Mathew, for majority), it was observed:
…We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today is for maintenance of supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be of impact on the maintenance of supplies and services essential to the community when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that the procedure is rigorously observed, however strange this might sound to some ears.
In the counter affidavit of the D.G.P. for the State and in the oral arguments on behalf of the State, it is suggested that having regard to the entrenched and violent activities and tactics adopted by extremist groups, which have resulted over the years in large scale casualties not only to law enforcement officers but civilians as well, it is the obligation of the State to restore the equilibrium of the civil society, to restore law and order and to that end to pursue and apprehend members of the extremist groups. In the course of performance of such sovereign obligation when the police party proceeds, on reliable information to the location where there is an assemblage of extremist groups, the exchange of fire occurs on account of the initial aggression by the other party and casualties, on occasion result.
According to the State, despite the claim of self-defense justification by officers of the law enforcement party, if it were interpreted that Section 154 (1) Cr.P.C. obligates the recording and registration of a culpable offence against the involved police officers, the police force would be demoralized and subjected to the avoidable jeopardy and the trauma of investigation or trial. This is broadly the justification presented by the State for its deeply entrenched and unique practice.
We do not consider that the morale of our law enforcement officials, who perform under difficult, taxing and stressful situations, is so fragile as to be shattered by the due observance of the legal process. In any event, the inexorable mandate of law cannot be sacrificed at the altar of expediency or to placate executive phobia of the legal processes.
Brandeis, J made a pregnant observation in Olmstead v. United States([80][80]) – Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
As Robert Jackson, J eloquently observed in United States v. Spector ([81][81]) – We can afford no liberties with liberty itself.
When the claim is of a self-defense justification, the law is very clear that an ordinary civilian may claim such justification as well. A private defense claim by a member of the police force stands on no different or special footing. Explanations 1 and 2 to Sec.99 IPC clearly exemplify that an individual has a right of private defense even against a public servant or against an act done, or attempted to be done, by the direction of a public servant.
The National Human Rights Commission (NHRC) under the Chairmanship of Hon’ble Justice Sri M.N.Venkatachalaiah, addressed a letter dated 20.03.1997 to all the Chief Ministers recommending the procedure to be followed by the States in cases of encounter deaths. Six years later the NHRC after noticing that its experience in the matters of encounter deaths has not been encouraging and most of the States are not following the guidelines issued in true spirit, with a view to ensure transparency and accountability of public servants, issued modified guidelines. The NHRC noted with distress that though under the existing guidelines the States were required to send intimation to the Commission of all cases of death arising out of police encounter, some States do not send intimation on the pretext that there is no specific direction. The Commission expressed the view that the statistics are necessary for effective protection of human rights in exercise of NHRC functions. Justice A.S. Anand, Chairperson, NHRC, accordingly addressed a letter-dated 2.12.2003 to all the Chief Ministers of States and to Union Territories intimating the modified procedure to be followed in cases of death in the course of police action. The modified procedure recommended is:
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. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID.
C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State CBCID.
D. A Magisterial inquiry must invariably be held in all cases of death, which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.
E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police investigation.
F. Question of granting of compensation to the dependents of the deceased would depend upon the facts and circumstances of each case.
G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/ recommended only when the gallantry of the concerned officer is established beyond doubt.
H. A six monthly statement of all cases of deaths in police action in the State shall be sent by the Director General of Police to the Commission, so as to reach its office by the 15th day of January and July respectively. The statement may be sent in the following format along with post mortem reports and inquest reports, wherever available and also the inquiry reports:-
1. Date and place of occurrence
2. Police Station, District
3. Circumstances leading to deaths:
i. Self defence in encounter
ii. In the course of dispersal of unlawful assembly
iii. In the course of effecting arrest.
4. Brief facts of the incident
5. Criminal Case No.
6. Investigating Agency.
7. Findings of the magisterial inquiry/enquiry/by Senior Officers:
a. disclosing in particular names and designation of police officials, if found responsible for the death, and
b. whether use of force was justified and action taken was lawful.
The Hon’ble Chairperson, NHRC, Justice A.S.Anand in the letter dated 2.12.2003 referred to above, while intimating the modified procedure prefaced the directives with the following observations:
Dear Chief Minister,
Death during the course of a police action is always a cause of concern to a civil society. It attracts criticism from all quarters like Media, the general public and the NGO sector. The police does not have a right to take away the like of a person. If, by his act, the policeman kills a person, he commits an offence of culpable homicide or not amounting to murder, unless it is established that such killing was not an offence under the law. Under the scheme of criminal law prevailing in India, it would not be an offence if the death is caused in exercise of right of private defence. Another provision under which the police officer can justify causing the death of a person, is section 46 of the Criminal Procedure Code. This provision authorizes the police to use reasonable force, even extending up to the causing of death, if found necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, it is evident that death caused in an encounter if not justified would amount to an offence of culpable homicide.
In the revised A.P. Police Manual, S.O. 546 deals with investigation of terrorist crime. Para-6 of S.O. 546 sets out the NHRC guidelines for investigating death(s) in police encounter. These are:
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 the death to ascertain what, if any, offence was committed and by whom. (emphasis)
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 State CID. Alternatively such cases may be investigated by an officer of the rank of Dy. Supdt. of Police/SDPO of some other district. (emphasis)
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.
S.O. 546(6)A clearly enjoins that the information received about deaths in encounter between police party and others should be entered in the appropriate register and Para-B clearly enjoins that such information shall be regarded as sufficient to suspect the commission of a cognizable offence. Surely, the intendment of SO 546(6)B is not that the investigation (not inquest, be it noted) into the facts and circumstances must be of the offence, presumably committed by the deceased or the civilian party to the transaction. The language of Para-B excludes any such extravagant assumption. The S.O. is clear that the non-derogable obligation is to register FIR treating such information as conveying information as to commission of a cognizable offence by the police officer(s) and thereafter to set in motion the process of investigation to ascertain what offence was committed and by whom. This is not a process falling under Sec. 174 Cr.P.C. The above analysis is compelling also from the provisions of S.O. 546(6)C which enjoin that the cases be entrusted for investigation to an independent investigation agency such as the State CID or alternatively by an officer of the rank of the Deputy Superintendent of Police/SDPO of some other District.
The current practice is to register the death u/Sec. 174 Cr.P.C. i.e., for the purpose of inquest. We have already recorded the conclusion that an inquest is not for the purpose of ascertaining the perpetrator of an offence. There appears no logical purpose served in enjoining (S.O. 546(6) C) that the case registered u/Sec. 174 Cr.P.C. should be made over for investigation to an independent agency. It is the FIR registered against officer(s) treating the information received as one conveying the commission of a cognizable offence that requires to be investigated by an independent agency or the Dy.S.P/SDPO of another district (since the officer(s) of the concerned police station are normally the perpetrator(s) of the homicide which is prima facie to be treated as culpable).
The practice now followed in the State is not only in clear deviance of the NHRC guidelines and the provisions of S.O. 546(6) in the A.P. Police Manual, an extravagant subversion of the rule of law, but also in defiance of the Legislative mandate qua the provisions of the Cr.P.C.
The analysis in the preceding paragraphs compels the conclusion that a self-defense justification cannot be assumed to be legitimate or established on the mere assertion by or on behalf of the perpetrator, without the rigor of a focused investigation for the purpose of collecting relevant evidence after registration of the FIR incorporating the name of the perpetrator(s), if and as disclosed in the information conveyed and duly enumerating the appropriate provisions of substantive law.
In our considered view the failure to record and register the primary offence (of the death of civilian(s) in a transaction involving exchange of fire with officers of the police establishment of the State) is a grave and wholly unwarranted transgression of constitutional and sovereign responsibility. The State is legislatively mandated to record and register a cognizable offence and thereafter set the criminal law in motion including the immediately following process of investigating into the offence.
A person (whether a civilian or a public servant) accused of a cognizable offence including of culpable homicide is exculpated of the prohibited conduct only on the ascertainment and establishment of the necessary facts, which rationally support the claim of private defense. It inexorably follows that when the information is conveyed to an officer in charge of the police station (even if be by a police officer), that the death(s) occurred as a consequence of firing by the police in self-defense, such information must be recorded under Section 154 (1) Cr.P.C. treating the information as one relating to commission of the cognizable offence of culpable homicide amounting to murder. An investigation mandated by Section 157 Cr.P.C., must follow. The investigation could be avoided only by (the officer in charge of the police station) recording in a report, clear reasons for failing to pursue investigation. Recording of such reasons is mandatory and a non-derogable obligation qua the provisions of Section 157 (2) Cr.P.C.
Conclusion on Issue No.3 :
We therefore consider and hold that the registration of civilian death(s) in police encounters exclusively u/Sec. 174 Cr.P.C. is wholly inappropriate and unauthorized. We further hold that such information shall be recorded and registered u/Sec. 154 Cr.P.C., a process that structurally ensures judicial oversight, control and supervision, of the integrity of the investigatorial process.
We reject the contention that an obligation to record the first information u/Sec. 154(1) Cr.P.C and to investigate into the facts and circumstances of the case so recorded u/Sec. 157 Cr.P.C is avoided by the stratagem of an inquest u/Sec. 174 Cr.P.C. The stand by the State that there is nevertheless an investigation on registering the case under Section 174 Cr.P.C. or incidentally after registering a case against the offences by the civilian party, is an extravagant argument, incongruous with the provisions of the Cr.P.C. We find no justification on text, principle or authority for this deviant process that has been entrenched as an inveterate and regnant practice in the State.
Issue No.2: Whether 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 defense could be conclusively determined during investigation; whether the final report submitted by the police officer to the Magistrate on completion of the investigation is conclusive or whether the existence of the circumstances coming within the exceptions requires to be determined only in appropriate judicial proceedings?
Chapter-XII of Cr.P.C. sets out the procedure regarding Information to the police and their powers to investigate. As we have seen, Section 154 Cr.P.C. relates to the obligation to record and register every information relating to the commission of a cognizable offence. We have held (while recording our conclusion on issue No.1) that every information intimating to an officer in charge of the police station of death(s) in a transaction involving exchange of fire between police officer(s) and civilian(s) must and invariably be recorded and registered as FIR and if in such transaction there be death(s) of member(s) of law enforcement as well, separate FIRs must be registered – one in respect of death(s) of police personnel and the other relating to the death(s) of civilian(s). We have further held that on registration of FIR, the investigation enjoined by Section 157 Cr.P.C. must follow.
Section 156 (1) Cr.P.C. confers power on the officer in charge of a police station to investigate any cognizable offence (which the Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter-XIII), without an order of the Magistrate.
Section 157 Cr.P.C enjoins that from the information received or otherwise, if an officer in charge of a police station has reason to suspect the commission of an offence, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person or depute a subordinate (as authorized by a general or special order of the State in this behalf) to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender(s). (emphasis)
Section 159 Cr.P.C. sets out the power of the Magistrate (on receiving a report under Section 157 Cr.P.C) to direct an investigation, or, if he thinks fit, to at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in the Code.
Section 173 Cr.P.C. deals with the forwarding of the report of investigation to the Magistrate empowered to take cognizance of the offence on a police report. Sub-section (2) of Section 173 Cr.P.C. enumerates the matters that must be stated in the report of the investigation, to be forwarded to the Magistrate (in the form prescribed by the State Government). These are: the names of the parties; the nature of the information; the names of the persons who appear to be acquainted with the facts and circumstances of the case; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; and whether he has been forwarded in custody under Section 170. Clause (ii) of Section 173 (2) enjoins the obligation to communicate the action taken by the police officer to the person, if any, who had first given the information relating to the commission of the offence. Sub-section 173 (8) clarifies that nothing in Section 173 shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) is forwarded to the Magistrate and that if upon such investigation, further evidence, oral or documentary, is revealed, the police officer shall forward to the Magistrate a further report or reports regarding such evidence and that the provisions of sub-sections (2 to 6) shall apply in relation to such report or reports, as they apply in relation to the initial report forwarded under sub-section (2).
As is apparent from the text of Sec.173 Cr.P.C., on completion of investigation the investigating officer is enjoined to forward to the Magistrate, a report in the form prescribed by the State Government. The report, which is variously, called in practice a final report or a completion report shall contain the particulars referred to in sub-clauses (a) to (g) of Clause (i). The final report must incorporate an opinion; (d) whether any offence appears to have been committed and, if so, by whom? Investigation thus involves not only collection of evidence but also formation of opinion. It is such opinion that is enjoined by Sec. 173(2)(i)(d) Cr.P.C. to be included in the police report that must be forwarded to the Magistrate. Sub-clause (c) enjoins that the police report should incorporate the names of the persons who appear to be acquainted with the circumstances of the case. Therefore the names of all persons either acquainted with the circumstances of the case or who in the opinion of the investigating officer appear to have committed any offence shall be incorporated in the police report u/Sec. 173 Cr.P.C.
While Sec. 154(1) Cr.P.C. mandates the recording and registration of the information relating to the commission of a cognizable offence (whether or not the name(s) of the accused are mentioned in such information) Sec. 157(1) Cr.P.C. mandates the investigation of the facts and circumstances of the case and if necessary thereupon to take measures for the discovery and arrest of the offender(s). In complementarity with the concomitants of investigation u/Sec.157(1) Cr.P.C., the police report to be forwarded to the Magistrate (u/Sec. 173(2)(i)(d) Cr.P.C.) shall incorporate the names of person(s) by whom the offence appears to have been committed (in the opinion of the Investigating Officer).
The extent and contours of Judicial oversight of the powers of Investigation :
The Judicial Committee of the Privy Council in King Emperor vs Nazir Ahmed([82][82]) (per Lord Porter) observed that the judiciary should not interfere with the police in matters that are within their province and into which the law imposes on them a duty of enquiry. The Privy Council held: the functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own functions, always of course, subject to the right of the court to intervene in an appropriate case … the court’s function begins when a charge is preferred before it and not until then.
The scope of investigation was again explained in H.N. Rishbud and Anr. Vs State of Delhi ([83][83]) as consisting generally of: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173.
In Vadilal Panchal vs Dattatraya Dulaji Ghadigaonkar and Anr. ([84][84]) (per SK Das,J) the issue that fell for consideration was whether a Magistrate on receiving a report (pursuant to a direction for an enquiry u/Sec. 202 Cr.P.C. , for ascertaining the truth or falsehood of a complaint), could accept the report supporting the plea of self-defence presented by the person complained against, on the basis of the report and statement of the witnesses recorded by the enquiring officer. On facts the Magistrate had dismissed the complaint u/Sec. 203 Cr.P.C. Thereagainst the respondent-complainant moved the High Court, which set aside the order of dismissal and directed the Magistrate to issue process against the appellant. The High Court held that since indisputably the death occurred on account of the shot fired by the respondent, the accused would have to establish the necessary ingredients of the right of private defence as laid down in Sec. 96 onwards of the IPC. The High Court opined that General Exceptions cannot be held to be established from the mere report of the police as that would be contrary to the provisions of Sec. 105 of the Evidence Act; that the provisions of Sec. 202 and 203 Cr.P.C. do not abrogate the rule of presumption explicated by Sec. 105 of the Evidence Act nor the mode of proof of exception laid down in imperative language in Sec.105. On appeal, the Supreme Court ruled that the High Court erred in concluding that it was not open to the Magistrate to come to the conclusion that on the material before him no offence had been made out and there was no sufficient ground for proceeding further on the complaint. The scope of the authority and discretion of the Magistrate u/Secs. 202 and 203 Cr.P.C. was spelt out by the Supreme Court in Vadilal Panchal as under (paragraph 10 of the report):
(10) …What is contended on behalf of the respondent complainant is that as a mater of law it was not open to the learned Magistrate to accept the plea of right of self-defence at a stage when all that he had to determine was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provisions of S. 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an enquiry under S. 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses – all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions. (emphasis).
In Abhinandan Jha vs Dinesh Mishra ([85][85]) (per Vaidialingam,J) the court emphasized that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer in charge of a police station. The court further held that when the police submits a report that no case has been made out for sending up the accused for trial, it is not open to the Magistrate to direct the police to file a charge-sheet. The court however clarified that the Magistrate is not powerless in the circumstances. After the completion report is drawn up and forwarded to the Magistrate u/Sec. 173 Cr.P.C. the Magistrate is required to consider such police report u/Sec. 190 Cr.P.C. (in Chapter XIV, relating to Conditions Requisite for Initiation of Proceedings). As laid down in Abhinandan Jha:
(14) … The use of the words 'may take cognizance of any offence', in sub-section (1) of S. 190, in our opinion, imports the exercise of a 'judicial discretion', and the Magistrate, who receives the report, under S. 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows, that it is not as if, that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts, disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under S. 190 (1) (b) of the Code. This will be the position, when the report, under S. 173, is a charge-sheet.
(15) Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under S. 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a 'final report'. ? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156 (3), to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under S. 156 (3 ). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under S. 190 (1) (b), notwithstanding the contrary opinion of the police, expressed in the final report.
(17) … There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under S. 190 (1) (c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under S. 190 (1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed.
In H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh vs State (Union Territory of Chandigarh) ([86][86]) (per O. Chinnappa Reddy, J), the Supreme Court having considered and affirmed the principles set out in the earlier decisions in Abhinandan Jha (85 supra) and in Tula Ram vs Kishore Singh([87][87]), clarified the scope of the power of the Magistrate (on receipt of a complaint) as under:
(6) It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under S. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under S. 203. If in his opinion there is sufficient ground for proceeding he may issue process under S. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the. Magistrate may, instead of taking cognizance of the offence, order an investigation under S. 156 (3 ). The police will then investigate and submit a report under S. 173 (1 ). On receiving the police report the magistrate may take cognizance of the offence under S. 190 (l) (b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under S. 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under S. 200, Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under S. 156 (3) and received a report under S. 173 will not have the effect of total effacement of the complaint and therefore the magistrate will not be barred from proceeding under S. 200, 203 and 204. Thus, a magistrate who on receipt of a complaint, orders an investigation under S. 156 (3) and receives a police report under S. 173 (1), may, thereafter, do one of three things; (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under S. 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under S. 190 (1) (a) on the basis of the original complaint, and proceed to examine upon oath the complainant and his witnesses under S. 200. If he adopts the third alternative, he may hold or direct an inquiry under S. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
In M/s India Carat Pvt. Ltd. vs State of Karnataka and Anr.([88][88]) (per Natarajan,J) the scope of the power, authority and discretion of the Magistrate on receiving the police report u/Sec. 173 Cr.P.C. again fell for consideration by the Supreme Court. The appellant complained to the police alleging cheating and criminal breach of trust by the 2nd respondent. After investigation the police submitted a report to the court to the effect that further investigation was not required as the matter was civil in nature. The appellant approached the Magistrate for quashing the report and grant of permission to him to prove the commission of offence by the 2nd respondent. The Magistrate on perusing the investigation records was satisfied that a prima facie case was made out against the 2nd respondent. He passed an order for registering a Calendar Case against the said respondent u/Secs. 408 and 420 IPC and for issuing summons to him u/Sec. 204 Cr.P.C. The 2nd respondent thereupon approached the High Court u/Sec. 482 Cr.P.C. for quashing the order of the Magistrate. The High Court allowed this petition holding that the Magistrate failed to follow the procedure laid down in the Cr.P.C. for taking cognizance of the case and issuing processes to the accused after the police forwarded the report. The High Court held that after receipt of the police report the Magistrate should have issued a notice to the appellant to ascertain whether he was disputing the correctness of the police report and if so calling upon the appellant to comply with the requirement of Sec.200 Cr.P.C. The High Court further held that only after examining the appellant on oath and his witnesses, the Magistrate ought to have decided whether a case should be registered and process issued to the accused. Aggrieved thereupon the appellant appealed to the Supreme Court.
After quoting with approval its earlier decisions in Abhinandan Jha, Tula Ram and H.S.Bains (85, 88 & 86 supra) the Supreme Court in India Carat held:
(16) The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190 (1) (b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190 (1) (a) though it is open to him to act under Section 200 or Section 202 also. The High Court was therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
(17) The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156 (3), the police would have had to submit a report under Section 173 (2). It has been held in Tula Ram v. Kishore Singh (1978) 1 SCR 61: (AIR 1977 SC 2401) that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190 (1) (b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.
These principles were reiterated in Minu Kumar and Anr. vs State of Bihar and Ors.([89][89]).
On analyses of the several provisions in Chapters XII and XIV to XVI Cr.P.C. and in the light of the binding interpretation of the several provisions, the following principles emerge:
(A) On registration of FIR, on the basis of information received relating to commission of a cognizable offence, the officer in charge of a Police Station shall investigate such cognizable case even without an order of the Magistrate and shall also investigate when so ordered by a Magistrate u/Sec. 190 Cr.P.C.
(B) The obligation to investigate is {apart from following upon the registration of the offence u/Sec. 154(1)} also on information otherwise received. The procedure for investigation includes sending forthwith a report to the Magistrate of the information received; to proceed to the spot of occurrence to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of an offender. Wide and adequate powers are conferred u/Secs. 160 to 168 Cr.P.C. to enable a rigorous investigation.
(C) Upon completion of the investigation the officer in charge of the Police Station is required to forward to the Magistrate the police report in the prescribed form setting out the matters and information enumerated in Sec. 173(2), apart from the obligation to communicate to the person lodging the first information, the action taken on such information.
(D) Provisions of Chapter XIV Cr.P.C. set out the conditions requisite for initiation of proceedings.
Section 190 empowers (subject to the provisions of Chapter-XIV) a Magistrate to take cognizance of any offence --- upon receiving a complaint of facts, which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The provision is clear that cognizance is taken of the offence and not of or merely of the offender. The Magistrate is required to exercise sound and critical judicial discretion, to apply his mind to the facts, the material and the evidence before him. When considering taking cognizance upon a police report of such facts (the police report under Section 173 Cr.P.C.), the report must be subjected to rigorous judicial scrutiny. The Magistrate exercises judicial functions and therefore at this stage of the matter, the Magistrate must bring to bear on the police report a judicious and not a routine or a casual approach.
The word cognizance has no esoteric or an arcane significance in criminal law or procedure. It merely connotes --- becoming aware of. When used with reference to a Court/Judge/Magistrate cognizance means to take notice of judicially.
As pointed out in Chief Enforcement Officer v. Videocon International Ltd.([90][90]) (Per: C.K. Thakker, J), taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or a condition precedent for holding a valid trial.
In Videocon International (90 supra) after referring to its earlier decisions in R.R. Chari v. State of U.P. ([91][91]); Narayanda Bhagwandas Madhavdas v. State of W.B. ([92][92]); Ajit Kumar Palit v. State of W.B. ([93][93]); Hareram Satpathy v. Tikaram Agarwala([94][94]); Gopal Das Sindhi v. State of Assam ([95][95]); Nirmaljit Singh Hoon v. State of W.B.([96][96]) and Darshan Singh Ram Kishan v. State of Maharashtra([97][97]), the apex court concluded: … Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence.
On text and precedential authority therefore, the Magistrate is not bound by the police report forwarded under Section 173 (1) Cr.P.C. nor by the opinion or conclusion expressed therein that the case is false, for taking cognizance of the offence. If satisfied on the basis of the material before him, including the material disclosed during the course of investigation; and in a case involving a self-defense justification assertion, if satisfied that such material on record does not clearly establish the legitimate application of self-defense justification, the Magistrate must take cognizance of the offence disregarding the contrary opinion set out in the Police report, forwarded under Section 173 (2). The statutory intent is clear (Sec.173 Cr.P.C) and the precedents explicit, that the police report incorporates only the opinion on the product of the investigation, an opinion that must be subjected to critical evaluation by the Magistrate.
In cases of homicide consequent on an encounter (between the police and civilians, in particular where there is a claim of defense justification asserted), the death is often the outcome of a complex series of causal relations, with a blurred exchange of moral identities between the participants in the transaction. Homicide in such context is not an object with an intrinsic nature and meaning. It is rather better understood as a situationally embedded product of legal processes.
Investigation of homicide in general and in encounter cases (with a claim of self defense) in particular, invites the need to consider the processes by which actions, reactions and interactions, which are constitutive of the incident, are interpreted and defined in a manner that the incident can be identified as constituting a (culpable or non-culpable) homicide, and the perpetrator recognized and labeled as a misdemeanant or otherwise.
The officer tasked to investigate the event, must produce a definitive account of who did what to whom, why and in what sequence and circumstance. The opinion in the police report, which is not substrated by such definitive account, is not an opinion that a Magistrate may lawfully accept, without abdicating the critical judicial function legislatively consecrated to his care (u/Sec. 190 Cr.P. C.) – (see Article The Process Structures of Police Homicide Investigations)[98][98].
(E) Chapter XV Cr.P.C. sets out the procedure to be followed with respect to complaints made to a Magistrate. Sections 200 to 203 set out the procedure, which a Magistrate empowered to take cognizance of an offence should follow when a complaint is made to him vide Sec.190(1)(a). Sec.200 enjoins an obligation (subject to specified exceptions), that the Magistrate shall examine the complainant and the witnesses, if any, upon oath, to record the substance of such examination to writing and to be signed by the complainant, the witnesses and by the Magistrate.
The enquiry envisaged under Secs. 200 to 203 is for ascertaining the truth or falsehood of the complaint i.e., for ascertaining whether there is material in respect of the complaint so as to justify the issuance of process. The enquiry and the procedure in this Chapter is not for arriving at a satisfaction by the Magistrate whether there is sufficient ground for conviction – Vadilal Panchal (84 supra). If a prima facie case is made out on examination of the complainant and his witnesses, the Magistrate shall issue process.
Sec.202 empowers the Magistrate to postpone the issue of process for compelling the attendance of the person complained against and to direct (subject to exceptions) a local investigation to be made by police officer (or by such other person as he thinks fit), for the purpose of deciding whether there is sufficient ground for proceeding. The scope of enquiry u/Sec. 202 is confined to ascertainment of the truth or otherwise of the allegations made in the complaint, in order to determine whether process should be issued u/Sec. 204 or whether the complaint should be dismissed by resorting to Sec. 203 on the satisfaction that there is no sufficient material or reason for proceeding on the basis of the statements of the complainant and his witnesses, if any. The enquiry under this provision does not partake the character of a full dress trial which can only occur after the process is issued u/Sec. 204 calling upon the proposed accused to answer the accusations made against him for adjudicating the guilt or otherwise -- Vadilal Panchal (84 supra); Pramatha Nath Talukdar vs Saroj Ranjan Sarkar([99][99]); Mohinder Singh vs Gulwant Singh([100][100]); Badgadi Narasinga Rao vs Kinjarapu Vara Prasad([101][101]). It is not within the province of the Magistrate to enter into a detailed discussion on the merits or otherwise of the case. The scope of the enquiry u/Sec.202 is limited to the ascertainment of the truth or otherwise of the allegations (i) on the material placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issuance of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defense that the accused may have. In a proceedings u/Sec. 202 the accused has no locus nor is entitled to be heard on the question whether process should be issued against him. It is not open to the Magistrate to go into the realm of appreciation of evidence or to the question of sufficiency of the evidence for conviction of the accused – Ponnal vs Rajamanickan([102][102]). The satisfaction as to the prima facie case and issue of process is a judicial function and the issue of process itself is a judicial determination – Rajendranath vs Dy. Supdt. of Police, Purulia([103][103]).
Ms. Nitya Ramakrishnan (for the 11th respondent in W.P.No. 15419/06) contended that in a case triable by the Court of Session (culpable homicide is triable exclusively by the Court of Session), the Magistrate has no authority to decline to take cognizance and commit the case to sessions. All General Exceptions must be established only at the trial in the Court of Session, is the contention. Reliance is placed on Balraj Khanna and Ors vs Moti Ram ([104][104]). Moti Ram filed a complaint before a Magistrate u/Sec. 500 IPC asserting that the allegations by the appellants were defamatory in character. Before the Magistrate the respondent (complainant) and other witnesses were examined u/Sec. 202 Cr.P.C. The Magistrate dismissed the complaint u/Sec. 203 holding that there was no evidence on record as to which of the appellants made which allegation against the respondent and therefore no prima facie case against any of the appellants can be said to have been made out; and that the resolution passed by the Standing Committee (of the Municipal Corporation, Delhi where the respondent was serving as Liaison Officer); the discussion preceding it are covered by the Exceptions to Sec. 499 IPC; and hence the appellants were within their right in passing a resolution recommending the respondent’s suspension. A revision thereagainst was dismissed by the Addl. Sessions Judge, Delhi. The High Court reversed, set aside the order of the Magistrate dismissing the complaint u/Sec. 203 Cr.P.C. and directed further inquiry to be made into the complaint. The appellant thereupon moved the Supreme Court. The Supreme Court held that the question of application of Exceptions to Sec.499 IPC does not arise at the stage of consideration of the complaint (under Chapter XV). Rejection of the complaint by the Magistrate cannot therefore be sustained.
Another decision relied on is Sewakram Sobhani vs R.K.Karanjia and Ors([105][105]). The appellant lodged a criminal complaint for defamation against the respondents. The Magistrate issued process to the respondent directing him and others to appear for explaining the substance of the accusation to them and for recording their plea. The respondents thereupon preferred revision to the High Court u/Sec. 397 and alternatively u/Sec. 482 Cr.P.C. The High Court quashed the proceedings holding that the respondents’ plea clearly falls within the ambit of Exception 9 of Sec. 499 IPC and that it would be an abuse of the process of the court if the trial were allowed to proceed which ultimately would turn out to be a vexatious proceedings. The complainant appealed to the Supreme Court. A.P. Sen, J and O.Chinnappa Reddy,J (delivered separate concurring opinions) allowing the appeal and setting aside the order passed by the High Court, directed the Magistrate to record the plea of the accused u/Sec. 251 Cr.P.C. and thereafter to proceed with the trial according to law. Baharul Islam, J recorded a dissent. The majority held, referring to the decisions in Dr. N.B.Khare vs M.R. Masani ([106][106]); Harbhajan Singh vs State of Punjab ([107][107]); Chaman Lal vs State of Punjab([108][108]) and Sukra Mahto vs Basdeo Kumar Mahto([109][109]); that even the truth of an allegation does not permit a justification under the First Exception unless it is proved to be in the public good. The question whether or not it was for the public good is a question of fact like any other relevant fact in issue. If a journalist makes assertion of fact as opposed comments on them, he must justify his assertion or in the limited cases specified in the Ninth Exception, show that the attack on the character of another was for the public good, or that it was made in good faith. The majority opinion reiterated that proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to Sec. 499 IPC. In the Ninth Exception the person making the imputations has to substantiate that his inquiry was with due care and attention and he was thus satisfied that the imputation was true. The majority further held:
In order to attract the Ninth Exception to Sec. 499 IPC, the imputations must be shown to have been made (1) in good faith and (2) for the protection of the interest of the person making it or of any other person or for the public good. The insistence is upon the exercise of due care and attention; recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation was made, the position of the person making imputation and a variety of other factors. Good faith is therefore a matter of evidence. It is a question of fact to be decided from the facts and circumstances of each case. So too the question whether an imputation was made for the public good. In fact the First Exception of Sec. 499 IPC, expressly states “Whether or not it is for the public good, is a question of fact”.
The court held that ‘Public good’ like ‘good faith’ is a matter for evidence and not conjecture.
At this stage of the analysis we may usefully refer to another judgment of the apex court that, in our view, lends clarity to this aspect of the matter. In State of Orissa vs Debendra Nath Padhi([110][110]), the issue before the court was whether the trial court at the time of framing of a charge could consider material filed by the accused. In Satish Mehra vs Delhi Administration([111][111]), a two Judge Bench of the Supreme Court had observed that if the accused succeeds in producing any reliable material at the time of cognizance or framing of a charge, which might fatally affect the very sustainability of the case, it is unjust to suggest that such material should not be looked into by the court at that stage. The Satish Mehra court held that the object of providing an opportunity to the accused of making submissions as envisaged in Sec. 227 Cr.P.C. is to enable the court to decide whether it is necessary to proceed to conduct the trial. The court further held that if the material produced by the accused even at that early stage could clinch the issue the court could not shut out such material holding that they should be produced only at the trial. Earlier decisions including by three Judge Benches in Superintendent and Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja([112][112]) and State of Bihar vs Ramesh Singh([113][113]), held that the trial court could consider only the material placed before it by the investigating agency, there being no requirement in law for the court to grant at that stage, either an opportunity to the accused to produce evidence in defense or consider such evidence as the defense might produce at that stage. In view of the conflict, the matter was referred to a three Judge Bench, which determined the issue in Debendra Nath Padhi. The three Judge Bench in Debendra Nath Padhi (per Y.K.Sabarwal,J), after referring to earlier decisions in Ramesh Singh (113supra), Anil Kumar Bhunja (112 supra), State of Delhi vs Gyan Devi([114][114]); State of M.P. vs S.B.Johari([115][115]); and State of Maharastra vs Priya Sharan Maharaj([116][116]); held that at the stage of framing of the charges the defense of the accused cannot be put forth. The court rejected the contention based on reliance on Articles 14 and 21 of the Constitution that non-consideration of the material filed by the accused would render the provision (Sec. 227 Cr.P.C.) invalid. The court held that the requirement of hearing the submissions of the accused (in Sec. 227 Cr.P.C.) or even u/Sections 228, 238 and 239 Cr.P.C., was confined to hearing the submissions of the accused on the record of the case filed by the prosecution and the documents submitted therewith and nothing more. The court emphatically ruled that the expression hearing the submissions of the accused couldn’t mean an opportunity to the accused to file material and thereby alter the settled law. The court concluded that at the stage of framing of the charges, hearing the submissions of the accused must be confined to the material produced by the police. The court over-ruled the decision in Satish Mehra. The ratio in Debendra Nath Padhi reinforces the appropriate construction of the provisions of Sections 190 and 203 Cr.P.C. as well; that the decision to take cognizance or dismiss the complaint must be taken without consideration of the plea or any material that an accused desires to present at these stages.
The decision in Vadilal Panchal (84 supra), however negates the position that a Magistrate cannot ever decline to take cognizance of an offence that is exclusively triable by the Court of Session.
In cases of death occurring on account of police firing, the record, i.e. the first information that shall be registered u/Sec. 154(1) (as we have held on issue No.1), or in the case of a private complaint as to such event, clearly narrates the occurrence of homicide(s). Such homicide is presumptively culpable, a private defense justification asserted in the first information notwithstanding. Where an investigation is pursued (u/Sec. 157) following upon the FIR, the investigation must necessarily bring forth the facts and circumstances of the case. The identity of the perpetrator(s); the identification of the bullets, the identity of the weapons from which particular bullets (recovered from the body) were fired, the officer to whom a particular weapon was issued, are all matters invariably of official record (see para 624(1) and (2) of the A.P. Police Manual relating to the ‘Care and Custody of Arms and Ammunition’) and could be correlated by forensic and ballistic analysis that must accompany the investigation, including the result of an autopsy, which must inevitably be held.
There may occur rare circumstances where the investigation and the final report fail to make out even a prima facie case for either (a) taking cognizance of the offence or (b) on exercising sound judicial discretion, warrant the dismissal of a complaint. It is in those rare cases/circumstances, but nevertheless that the judicial discretion u/Secs. 190 and 203 Cr.P.C. enures.
We have already noticed that the precedential authority on the scope of the power of the Magistrate, under Chapter XV Cr.P.C. does not invite any discretion for considering or adverting to any defense that an accused may have; and the accused has no locus standi in a proceedings u/Sec. 202 Cr.P.C., to be heard on the question whether process should be issued against him. The Magistrate in an enquiry u/sec. 202 must only ascertain the truth or otherwise of the allegations on the material placed by the complainant before the court. The decisions in Balaraj Khanna and Sewakram Sobhani (104&105 supra) entrench this position.
It must however be noticed that the Magistrate while considering the police report forwarded to him u/Sec. 173, on an information recorded and registered u/Sec. 154 and pursuant to an investigation u/Secs. 156 and 157 Cr.P.C.; or while considering a police report forwarded u/Sec. 173, on a direction by a Magistrate u/Sec. 156(3) pursuant to a complaint received by such Magistrate u/Sec. 190(1)(a) / 200 [while directing investigation before taking cognizance of the complaint as explained in Devarapalli Lakshminarayna Reddy and Ors vs V. Narayana Reddy and Ors([117][117])] (analysed infra), still inheres the discretion (a judicial discretion and subject to the parameters discussed above) either to take cognizance u/sec. 190 or to dismiss the complaint u/Sec. 203 Cr.P.C. This is so since in principle the Police report must disclose that there is a prima facie case for proceeding further by and on taking cognizance. Once cognizance is taken however and in a case triable exclusively by the Court of Session, the Magistrate shall have to commit the case to Sessions u/Sec. 209 Cr.P.C. Thereafter it is the Court of Session that is in seisin of the case.
Proviso (a) to Sec. 202(1) forbids the Magistrate to direct an investigation (to be made by a police officer or by such other person as he thinks fit), where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. Sub-Sec.(2) of Sec.202 stipulates that the Magistrate may, in an inquiry u/sub-sec.(1) if he thinks fit, take evidence of witnesses on oath. The proviso to sub-sec.(2) states that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
The issue whether in view of Clause (a) of the First proviso to Sec.202(1) Cr.P.C., a Magistrate who receives a complaint disclosing an offence exclusively triable by the Court of Session is debarred from sending the same to the police for investigation u/Sec. 156(3), directly fell for consideration in Devarapalli Lakshminarayana Reddy (117 supra). On facts, the first respondent preferred a complaint before a Judicial Magistrate against the appellant alleging offences, some of which are exclusively triable by the Court of Session. The Magistrate on receiving the complaint forwarded it to the police u/Sec. 156(3) Cr.P.C. for investigation and report by a specified date. On behalf of the appellant it was contended that in view of the provisions of Sec.202(1)(a) there is a peremptory prohibition on the Magistrate to direct investigation of such a complaint by the police or any other person. The respondents contended that the power u/Sec. 156(3) Cr.P.C. can be invoked at a stage when the Magistrate has not taken cognizance of the case; that the power of the Magistrate u/Sec. 156(3) is independent of his power to send the case for investigation u/Sec. 202; and that the provisions of Sec. 202 come into operation after the Magistrate starts dealing with the complaint in accordance with the provisions of Chapter XV. Since the Magistrate had sent the complaint for police investigation without taking cognizance, the power u/Sec. 202(1)(a) was not attracted.
The apex court explained the position thus: The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the magistrate in completing proceedings already instituted upon a complaint before him.
Applying the analysis to the facts of the case, the Supreme Court in Lakshminarayana Reddy (117 supra) held that as the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only ordered an investigation u/Sec.156(3) he did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses u/Sec. 200, which the first step in the procedure prescribed under that Chapter and therefore the question of taking next step of that procedure envisaged in Sec. 202 did not arise. The Magistrate, instead of taking cognizance of the offence, had in exercise of his discretion, sent the complaint for investigation by the police u/Sec. 156. Thus, the first proviso to Sec. 202(1) was not attracted, held the court in Lakshminarayana Reddy.
Sec. 202(2) serves the purpose of a preliminary enquiry as regards a private complaint triable exclusively by a Court of Session. In such an event the Magistrate has to comply with the provisions of Sec. 208 Cr.P.C. (Chapter XVI) by furnishing copies of documents mentioned in the said Section. As pointed out in Rosy vs State of Kerala([118][118]) and Birendra K Singh vs State of Bihar([119][119]), the provisions of Sec. 202(2) are mandatory. As explained in Dharmvir vs State of U.P([120][120]) in a complaint case relating to a matter exclusively triable by the Court of Session, the Magistrate is required to himself conduct the enquiry and may not direct an investigation by a police officer. The prohibition enjoined on the Magistrate u/Sec. 202(1)(a) [to direct an investigation to be made by a police officer or by such other person as he thinks fit, whether it appears that the offence complained of his triable exclusively by the Court of Session], is subject to the clarification of the legal position in Lakshminarayana Reddy (117 supra). The functional integrity of the Magistrate in such cases is thus more onerous and of an exacting standard.
Sec.203 enables the Magistrate, on considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) u/Sec. 202, if of the opinion that there is no sufficient ground for proceeding, to dismiss the complaint on recording reasons for such dismissal. The expression sufficient ground in Sec. 203 as also later in Sec. 209 (Chapter XVI) connotes satisfaction that a prima facie case is made out against the accused from the evidence of the witnesses entitled to a reasonable degree of credit and not that there is sufficient ground for the purpose of convicting. The consideration of the merits of the case at this stage is only to determine whether there are sufficient grounds for proceeding further. The mere existence of some ground which would be material in deciding whether the accused should be convicted or acquitted, does not generally indicate that the case must necessarily fail. Such ground may indicate however the need of proceeding further in order to discover the truth upon a full and proper investigation – D.N. Bhattacharjee vs State of W.B.([121][121]).
In Charan Singh vs Shanti Devi([122][122]) it was held; that if (in a case triable by the Court of Session), the Magistrate after enquiry of the complaint comes to the conclusion that the complainant’s case cannot be believed and it is not proper to issue process to the accused, can dismiss the complaint.
While the Magistrate is competent to enquire into the prima facie case for the purpose of committal and, is required to examine the material on record to be satisfied that the offence is one which is prima facie exclusively triable by the Court of Session, he cannot embark upon a detailed enquiry. In a case exclusively triable by the Court of Session, the Magistrate in his preliminary enquiry under Secs. 203/204 has only to see whether there is prima facie evidence. He would be exceeding his jurisdiction if he undertakes to weigh the evidence meticulously; he is not required to balance and weigh the evidence, as though in a trial, for the purpose of committal. His opinion must be formulated not upon the sufficiency or otherwise of the material – Kewal Krishan vs Suraj Bhan([123][123]); Saleha Khatoon vs State of Bihar([124][124]); State of Karnataka vs Shakti Velu([125][125]); Kannan vs R.A. Varadarajan([126][126]); Kavita vs State([127][127]).
On an interactive analysis of Sections 200 to 203 Cr.P.C. it is thus clear that a Magistrate may dismiss a complaint u/Sec. 203, (a) if he upon the statement made by the complainant reduced to writing u/sec. 200, is satisfied that no offence has been committed; (b) if he clearly distrusts the complainant’s statement; and (c) if he distrusts the complainant’s statement but not sufficiently so, to warrant him to act upon it, in which event he may direct a further enquiry as provided u/Sec. 200 and may either conduct the enquiry himself or depute a subordinate officer to conduct it.
It is however mandatory that the Magistrate should record reasons for dismissing a complaint – Chandra Deo v Prokash Chandra([128][128]); K. Prabhakar Rao v State of A.P.([129][129]).
The decisions in Balraj Khanna, Lakshminarayana Reddy, Sewakram Sobhani and Debendra Nath Padhi (104, 117, 105&110 supra) delineate the scope of Sections 190, 202 and 203 Cr.P.C., that at the stage of taking cognizance by the Magistrate; at the stage of directing investigation by the police u/Sec. 156(3) even on receiving a complaint or in exercising judicial discretion to dismiss a complaint (u/Sec. 203), it is only the material on record as forwarded along with the police report u/Sec. 173 or the material discerned from the complaint made to the Magistrate or from the statements of the complainant and the witnesses (if any) that could be considered either for taking cognizance (u/Sec. 190); for dismissal of the complaint (u/Sec. 203); or even for committal u/Sec. 209 Cr.P.C. At none of these stages is the accused entitled to assert or establish defense or to produce any document or material in support of any such defense, either for the purpose of forestalling the taking cognizance of the offence; for dismissal of the complaint; or for avoiding committal of the case (where the offence is exclusively triable by Court of Session).
It however requires to be noticed that even where the first information contains a narrative asserting a self-defence justification, though such justification/defense cannot be asserted by the accused either at the stage of taking cognizance, dismissal of the complaint or committal; the general criminal law principle as to the initial investigatorial or prosecutorial burden is not eclipsed.
We therefore hold that in exercising judicial discretion whether to take cognizance (Sec.190) or whether the complaint should be dismissed (Sec.203); the Magistrate is required to consider whether the offence, either recorded in the FIR u/Sec. 154(1) or in the complaint discloses a prima facie case for proceeding further. The only relevant material at that stage, which should guide the discretion of the Magistrate is the FIR, the Police report u/Sec. 173(2), the complaint and the statements of the witnesses (if any) (examined on oath u/Sec.200), and the product of the inquiry (u/Sec. 202), as the case may be. This is the narrow locus of judicial consideration.
(F) Chapter XVI sets out the procedure relating to the commencement of proceedings before a Magistrate. Sec.204 deals with the procedure relating to issue of process; Sec.205 with the discretion of the Magistrate to dispense with the personal appearance of the accused; Sec.206 the procedure for special summons in case of a petty offence; Sec.207 with the requirement of supplying to the accused a copy of the police report and other documents where proceedings are instituted on a police report; and Sec.208 with the requirement of supply of copies of statements and documents to the accused in other cases, triable by Court of Session.
Sec.209 enjoins that in cases instituted on a police report or otherwise and the accused appears or brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit, after complying with the provisions of Secs. 207 or 208 as the case may be, the case to the Court of Session; (c) send to that Court (of Session) the records of the case and the documents and articles, if any, which are to be produced in evidence; and (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
On the Magistrate committing the case u/Sec. 209 to the Court of Session, the bar under Sec. 193 Cr.P.C. is inapplicable and the Court of Session is invested the complete and unfettered jurisdiction of the court of original jurisdiction, to take cognizance of the offence including the authority to summon the person or persons whose complicity in the commission of crime can prima facie be gathered from the material available on record – Kishun Singh vs State of Punjab([130][130]).
If the case is exclusively triable by the Court of Session, the Magistrate cannot discharge the accused. In fact Chapter XV Cr.P.C. which sets out the procedure respecting complaints to Magistrates does not envisage nor confer power to discharge the accused. The Magistrate is merely enabled to dismiss a complaint if he is of the opinion that there is no sufficient ground for proceeding and after recording in brief the reasons for so dismissing. In a case triable exclusively by the Court of Session it is that court (Chapter XVIII – Section 227 Cr.P.C.) which may discharge the accused while recording reasons for so doing.
Conclusions on Issue No.2 :
On a consideration and analyses of the relevant provisions in Chapters XII and XIV to XVI of Cr.P.C., and in the light of the curial explication of the principles governing the scope of investigation and the role, jurisdiction and authority of the Magistrate in the matter of taking cognizance of the offence on a final report of the police forwarded to him; the jurisdiction and the contours of the judicial discretion of the Magistrate to dismiss a complaint or to record a committal as the case may be, we hold that the opinion recorded by the Investigating Officer in the final report (drawn up and forwarded u/Sec. 173 Cr.P.C. on whether any offence appears to have been committed and, if so, by whom), is but an opinion, of the Investigating Officer and does not bind the Magistrate in the exercise of the discretion to take cognizance u/Sec. 190 Cr.P.C. The Magistrate [notwithstanding the opinion of the Investigating Officer (that no cognizable offence appears to have been committed; or that one or more or all of the accused are not culpable; or even the opinion that the investigation discloses that the homicide [of civilian(s) in a police encounter] is non-culpable on account of a legitimate exercise by the police of the right of private defence)], shall critically examine the entirety of the evidence collected during the investigation while exercising judicial discretion to ascertain whether the opinion in the final report commends acceptance; or that there is no sufficient evidence or prima facie case to justify the accused being put on trial; or even that the facts set out in the final report disclose commission an offence and the product of the police investigation does not justify the plea of private defence - in which event the Magistrate may take cognizance of the offence. In short, we hold that the opinion recorded in the police report forwarded u/Sec. 173(2) Cr.P.C. is not conclusive but is subject to the exercise of judicial discretion by the Magistrate. We hold on issue No.2 accordingly.
Issue No.4: Whether the State, the police establishment or a police officer is immune from an obligation to disclose the identity of a Police Officer who had committed an act causing the death of a person, to enable an investigating officer or any person aggrieved by such death to effectively seek justice; and if so, in what circumstances or contexts?
This issue in its fullness does not now survive for resolution. As earlier indicated in this judgment, a Full Bench of this court by the order dated 4.12.2007 referred W.P.No. 15419 of 2006 along with the interlocutory applications therein (WPMP Nos. 29843 & 31250 of 2007) to be heard and decided by a Larger Bench of 5 Judges on certain issues including:
(A) What is the remedy in law available to a complainant who is unaware of the identity of the individual police officer(s) whose firing has caused death of a person due to bullet injury?
(B) Whether the Executive is bound to disclose or can claim privilege from disclosing the identity of the said police officer(s)?
(C) In selectively refusing to disclose the identity of such police officer(s), is the Executive not exercising the judicial power of the State and conclusively to judge for itself whether the officer(s) concerned had acted in self-defense? and
(D) Whether such usurpation of the judicial power of the State by an executive act by claiming privilege, results in deprivation of life and personal liberty otherwise than in accordance with the procedure established by law, violating Art. 21 of the Constitution?
The above issues arose in the context of the majority judgment of a Full Bench of this court in APCLC case (6 supra). At para-59 (of the report) the Full Bench majority recorded:
(59) The death of an individual, who is found dead in an incident of exchange of fire, between himself or a group of which he is a member, on the one hand, and the police party on the other hand, can certainly result in registration of an FIR, if any complaint is made, attributing specific acts to any individual, be it police or outsider as causes of death. The fact that a person was found dead, without there being a specific complaint, cannot, by itself, result in registration of a case, against any individual. (emphasis)
Again (at para 60 of the report) the majority held that … it is too difficult to accept the proposition, that as soon as the death of an individual is noticed, it must invariably result in registration of a crime under Section 302, particularly when no complaint is made attributing any specific act against any person. (emphasis)
In conclusion the majority held if a specific complaint is made, alleging that any identified individual had caused a death of such person, an independent FIR shall be registered in it, if it satisfies the law laid down by the Supreme Court in State of Haryana vs Bhajan Lal. (emphasis)
In W.P.No. 15419/06 the petitioner filed an application (WPMP No. 10579/07) for a direction to the respondents 3, 5 and 8 therein, to reveal the names of members of the District Police Special Party who participated in the offensive launched against the Maoists and killed 8 of them in the encounter on 23.7.2006. A Division Bench of this court which had initially heard this writ petition, by the order dated 30.7.2007 rejected this application since the petitioner did not lodge such a request under the Right to Information Act, 2005 (‘RTI Act’). In this order this court observed that if the petitioner’s application is not attended to or replied by the concerned authority within a reasonable time, the petitioner could seek the intervention of this court.
The General Secretary of the petitioner addressed a letter dated 1.8.2007 to the Public Information Officer, the A.P. Information Commission (‘APIC’) seeking the names, designations and other particulars of the police officers involved in the encounter on 23.7.2006. The APIC in turn, by its letter dated 4.8.2007 transferred the application dated 1.8.2007 to the 5th respondent (in W.P.No. 15419/07) u/Sec. 6(3) of the RTI Act. On 15.8.2007 the petitioner addressed, inter alia the Deputy Superintendent of Police (I.O. in Cr.No. 30/06 of PS Y.Palem) seeking the names, designations and other particulars, in reiteration of the earlier letter dated 1.8.2007 addressed to the APIC. The 5th respondent by a letter dated 30.8.2007 (addressed the petitioner) declined disclosure of the information sought. To the extent relevant and material the 5th respondent’s rejection reads as under:
It is hereby informed that the Cr.No. 30/06 of Y.Palem Police Station is being investigated by the Sub-Divisional Police Officer, Gurajala. The crime is under investigation and the entire CD file is with him. If any information is furnished in connection with the mater under the investigation it would impede the process of investigation, apprehension and prosecution of offenders. There by the information requested by you could not be furnished by me, as I am not the investigating officer.
Against this order, an appeal will lay u/s 19 of Right to information Act, 2005 before the Inspector of Police, Yerragondapalem circle with in 30 days of receipt of this order.
The petitioner filed an application (WPMP No. 29843/07) on 26.10.2007. This application proceeded on the assumption that the request of the petitioner for the information and particulars of the involved police officers has not yet been responded to despite an application under the RTI Act. A direction was sought in this application (to the respondents 3,5 and 8), to reveal the names of the 15 members of the District Police Special Party who participated and killed 8 members in the encounter on 23.7.2006 and further to array those police officers as respondents 9 to 23; the Sub-Inspector of Police and PC Nos. 430 and 1843 of Y.Palem PS and the Addl. Superintendent of Police (Operations) Markapur, Prakasam District, as respondents 24 to 27 (in W.P.No. 15419/06).
The 5th respondent, the S.H.O., Y.Palem Police Station. Filed a counter affidavit to WPMP No. 29843/07, on 31.10.2007. Para-3 of this counter asserts that the application was rejected by the 5th respondent on 30.08.2007 (a copy of the rejection was enclosed to the counter). In the light of the rejection, the 5th respondent sought rejection of the WPMP.
Interestingly, the 1st respondent – the Principal Secretary to Government, Home Department, filed WPMP No. 31250/07 claiming privilege (U/Sec. 123 of the Indian Evidence Act), to withhold the information sought by the petitioner, as to the disclosure of the names, which do not form part of any published record as that would adversely affect the affairs of the State (security and law and order). In para-6 of the affidavit accompanying WPMP No. 31250/07, the 1st respondent claimed: that the Petitioner has been trying to get the list of the Police personnel who participated in the exchange of fire with a view to file false criminal complaints against them with the main objective of intimidating them and in order to demoralize/harass and to deter them from discharging their lawful duty of preventing/curbing the unlawful activities of C.P.I. Maoists.
In view of the claim of privilege by the State when the writ petition (15419/07) came up for further hearing, a Division Bench of this court by the order dated 30.11.2007 referred the issue to be heard by a Full Bench, in particular having regard to the claim of privilege by the State. The Full Bench, as already recorded, made the reference on 4.12.2007 to this Bench.
All the learned counsel appearing in the mater, whether for the several petitioners or the respondents including the learned Advocate General for the State and Sri Lalit for the AP Police Officers Association are in agreement that the majority opinion of the learned Full Bench in APCLC (6 supra) to the extent the Bench held that if any complaint is made, attributing specific acts to any individual, be it police or outsider as causes of death can certain result in registration of a FIR, is a view that is patently erroneous and wholly inconsistent with the relevant provisions of the Cr.P.C. Sri Padmanabha Reddy, the learned Amicus Curiae., has comprehensively supported this view. It is the clear and unambiguous submission of all the learned counsel that u/Sec. 154(1) Cr.P.C. what all is needed to be conveyed to the officer in charge of a Police Station is information relating to the commission of a cognizable offence; it is not necessary that such information should contain the names of any accused. Similarly, in respect of a private complaint u/Sec. 200 Cr.P.C., the Magistrate is bound to entertain a complaint even though the complaint does not enumerate the names of any of the perpetrators. The learned counsel are agreed on the legal position that even u/Sec. 190 Cr.P.C. the Magistrate takes cognizance of an offence and not of any offender. The contrary view spelt out in the majority opinion in APCLC (6 supra) is patently erroneous and inconsistent with the relevant provisions of the Cr.P.C., is the conjoint submission.
We are in accord with the submission of the learned counsel for the respective parties on this interpretation of the provisions of Secs. 154(1), 190 and 200 Cr.P.C. We hold that for making a complaint under Chapter XV Cr.P.C. a complainant need not mention the names of any person who the complainant believes are involved in the commission of the offence complained of. On receiving such complaint and before proceeding to consider taking cognizance thereof, the Magistrate may refer the complaint to the jurisdictional police for investigation u/Sec. 156(3) Cr.P.C.- vide Mohd. Yousuf vs Smt. Afaq Jahan and Anr ([131][131]). On such referral the police shall register the information received from the Magistrate as FIR u/Sec. 154(1) and shall investigate u/Secs. 156/157 Cr.P.C. The procedure of investigation u/Sec. 157 Cr.P.C. inheres due and wholesome authority to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. (S. 157 Cr.P.C.).
We accordingly hold that the decision of the Full Bench majority in APCLC (6 supra) (that a complaint attributing a specific overt act to an identified person(s) alleging that such identified individual(s) had caused the death of such a person(s), is the condition precedent for registration of a FIR), does not represent the correct legal position. This conclusion of the APCLC majority is overruled.
The court declares that for the recording and registration of FIR u/Sec. 154 Cr.P.C. the information conveyed must relate to the commission of a cognizable offence. Even though such complaint does not enumerate the names(s) of any individual(s) as the perpetrator(s) of the offence nor does attribute any specific act against any person(s), the obligation to record the complaint and register FIR subsists and is non-derogable. We further declare that for entertainment of a complaint by the Magistrate u/Chpt. XV Cr.P.C. a complaint need neither enumerate the name of the perpetrator nor attribute any specific act to any person.
We have held (on issue No.1) that the officer in charge of a Police Station is bound to register the information received as to the death of a civilian consequent on a transaction involving exchange of fire with officers of the law enforcement, as FIR u/Sec. 154(1) Cr.P.C. and is further obligated to pursue investigation u/Sections 156/157 Cr.P.C.
In the analysis hereinbefore on issue No.4 we have concluded that a Magistrate shall entertain a complaint notwithstanding that the complaint does not attribute any specific act against any person and even if the complaint does not allege that any identified individual had caused a death (in the circumstances of the issues before us, of a civilian in a police firing). Neither Sec. 154(1) nor Sec. 200 r/w 190 Cr.P.C. require the information or the complaint as the case may be, to attribute any overt act to any individual including a police officer as a condition precedent for recording and registration of FIR u/Sec. 154(1) Cr.P.C. or for a Magistrate entertaining a complaint u/Chpt. XV Cr.P.C.
Where a complaint is made to a Magistrate u/Chpt. XV as already analysed supra (in relation to issue No.2) the Magistrate may take cognizance of the complaint u/Sec. 190 Cr.P.C. or before doing so may refer the complaint to the police for investigation (u/Sec. 156(3) Cr.P.C.).
Issue No.4 comprises two aspects: One facet of the issue is as regards the obligation of the State/police establishment/police officer to disclose the identity of police officer(s) who had caused the death of a person(s) in what is claimed to be an exchange of firing in an encounter, to enable any person aggrieved by such death to effectively seek justice. In view of our analyses and conclusion (on issue No.2) any person aggrieved by the death of a civilian in a police encounter could effectively seek remedy under the provisions of Cr.P.C. even without having to spell out in the information conveyed to the Police Station or in a complaint to the Magistrate (u/Sec. 154(1) or 200 Cr.P.C. as the case may be), the names of the perpetrators and without the need to attribute any specific overt act to any individual.
In the light of such declaration of the legal principle, the issue whether the State/police establishment/police officer enjoys any immunity from the obligation to disclose the identity does not really survive for consideration. It is an established principle of curial discipline that the court refrains from deciding an issue, in particular an issue involving broad normative principles, unless strictly necessary for resolution. We adhere to this venerable principle and decline to pronounce on this facet of issue No.4.
Sri Tarakam, Sri Kannabiran, learned Senior Counsel, the other counsel for the several petitioners and the learned counsel for the Common Wealth Human Rights Initiative (R-11 in W.P.No. 15419/06) have urged that the claim of privilege by the State (u/Sec. 123 of the Indian Evidence Act), is extravagant and misconceived. Reliance is placed on several authorities including the decisions in Henry Greer Robinson vs State of South Australia ([132][132]); The State of U.P. vs Raj Narain & Ors ([133][133]); and S.P. Gupta vs Union of India & Anr.([134][134]), for commending rejection of the claim of privilege by the State .
It is not necessary to pronounce on the State’s claim of privilege in the facts and circumstances. In view of our decision on issues Nos. 1 to 3, we do not propose to analyze the authorities cited and determine whether the claim of privilege asserted by the State is well founded or misconceived.
The second facet of issue No.4 is; whether the State or any of its agents inhere immunity from the obligation to disclose the identity (of a police officer who had committed an act causing death of a person), to an Investigating Officer. While considering issue Nos. 1 to 3 we have considered the provisions of Chapters XII and XIV to XVI Cr.P.C. and declared – (i) that the information conveyed to the officer in charge of a Police Station as to the occurrence of the death of a person in an exchange of fire with the police (even where such information is conveyed by a police officer while claiming that the death was consequent on the exercise of right of private defence by the police), must be recorded and registered as FIR; and (ii) that an investigation u/Sec. 157 Cr.P.C. shall be pursued.
In the course of the above analysis we have held, in fidelity to the legislative mandate of Sec. 157(1) Cr.P.C. that the procedure for investigation includes investigation into the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Sec. 2(h) Cr.P.C. defines investigation to include all the proceedings under the Code for the collection of evidence conducted inter alia by a police officer.
Sec. 39 Cr.P.C. mandates that every person aware of the commission of any offence punishable under any of the sections of the IPC (specified in Sec. 39 Cr.P.C., including an offence punishable u/Secs. 302 and 304 IPC), shall forthwith give information to the police officer of such commission.
Sec. 52A IPC defines the expression ‘Harbour’ as including assisting a person by any means, whether of the same kind as enumerated in Sec. 52A or otherwise, to evade apprehension. Secs. 191 to 193 IPC define the giving of false evidence, fabricating false evidence and specify the punishment for giving or fabricating false evidence. Sec. 201 IPC spells out that whoever knowing or having reason to believe that an offence has been committed, causes the evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; shall be punishable for varying terms (specified in Sec. 201), dependent upon the nature of the substantive offence in respect of which the causing of disappearance of evidence or giving of false information to screen the offender, has occurred.
Sec. 202 makes an intentional omission to give information of offence by a person bound to inform, culpable and spells out the punishment therefor. Sec. 203 declares to be an offence and makes punishable the giving of false information respecting an offence committed. Sec.204 renders culpable the destruction of a document or electronic record to prevent its production as evidence. Sec. 216 IPC specifies inter alia that whenever a public servant, in exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished as specified. Different terms of imprisonment are specified in Sec. 216 IPC, in proportion to the gravity of the offence for which the person is ordered to be apprehended. Sec. 217 IPC spells out as culpable the conduct of a public servant disobeying the direction of law with intent to save a person from punishment. Sec. 221 IPC enjoins to be an offence, the intentional omission by a public servant to apprehend or keep in confinement any person charged with or liable to be apprehended for an offence or the aiding of such person in escaping or attempting to escape from such confinement.
The learned Advocate General while fairly conceding the legal position that the State may claim no privilege for disclosure of the name(s) of the police officer(s) to the Magistrate, did not clearly spell out the stand of the State with regard to the obligation to disclose to the Investigating Officer (pursuing investigation u/Sec. 157 Cr.P.C.) the names of police officer(s) who are involved in or had participated in the transaction of firing, which resulted in the death(s). However, the statutory obligation of the Investigating Officer qua sec. 157 Cr.P.C. to investigate the facts and circumstances of the case postulates a corollary obligation of any person (reinforced by the provisions of Sec.39 Cr.P.C.) to furnish information to effectuate in full measure the process of investigation u/Sec. 157 Cr.P.C. The several provisions of the IPC, some of which have been illustratively referred to hereinabove, also place the matter beyond any disputation; that the State, its agents, instrumentalities or the officer(s) of the State are bound to extend unstinted cooperation and to provide all information and unhindered access to the official records, to the Investigating Officer. Withholding of any relevant information by any public servant, from an Investigating Officer, which has the impact of impeding or hindering the investigation of an offence registered u/Sec. 154 Cr.P.C., would be culpable conduct under several provisions of the IPC, some of which have been referred to supra.
On the above analysis the conclusion is compelling that the State/the police establishment/a police officer or any public servant has no manner of immunity whatsoever from the obligation to disclose to the Investigating Officer the identity of a police officer who had caused the death of a person (in a firing by the officers of the law enforcement). This aspect of issue No. 4 is answered accordingly.
The Full Bench in APCLC (6 supra), per majority, declared that viewed from any angel, registration of a case, u/Sec.302, straight away against the police officials in such cases, does not accord with the procedure prescribed under the Cr.P.C” (para-71). To support this declaration the majority recorded several reasons: (A) that there is a discretion u/Sec. 154(1) Cr.P.C., conferred on the officer in charge of the Police Station whether to register a complaint; (B) that in the absence of a complaint attributing specific acts to any individual as to the cause of death, no FIR need be registered; (C) that in view of the availability of an inquest procedure u/Sec. 176 Cr.P.C., that procedure could be gainfully adopted; (D) that the police being an agency of the State and the administration of criminal justice being almost entirely dependent upon the participation and assistance by the police, the police official may not be treated on par with the ordinary citizens, in the context of testing their acts and omissions, in the course of discharge of their duties; and (E) that the earlier decisions (of Division Benches) of this court, in P.Narayanaswami vs S.I. of Police ([135][135]), K.G. Kannabiran vs Chief Secretary ([136][136]), A.Anasuya vs Station House Officer, Tadicherla ([137][137]), do not represent the correct legal position, as the attention of the court does not appear to have been drawn to the provisions of Sec. 176 Cr.P.C.
The Full Bench majority in APCLC (6 supra) conceived illustrations from the attack on Parliament; an extremist killing in some village in the State; and an act of arson on a passenger train by persons claiming to belong to an extremist organization where about 50 persons died. The majority reasoned that in these instances if the intervention of the police and the killing of the extremists while exercising legitimate law enforcement duty were to be registered as FIR setting the criminal law and the investigation into motion, the consequences would be disastrous.
The APCLC (6 supra) majority concluded that – (i) an independent FIR shall be registered only on a specific complaint made alleging that any identified individual had caused death on account of bullet injuries in an encounter with the police, if the complaint satisfies the law laid down in Bhajan Lal (7 supra); (ii) in the absence of any such complaint the procedure u/Sec. 176 Cr.P.C. shall be followed without prejudice to any investigation that may be undertaken by the police; and (iii) that the judgment (of the Supreme Court) in People’s Union for Civil Liberties vs Union of India (PUCL) (8 supra) does not represent the correct legal position.
In view of our analyses and conclusions on issues Nos. 1 to 3 we hold and declare that the conclusions of the Full Bench majority in APCLC (6 supra) do not represent the correct legal position; that the earlier decisions of the Division Benches in Narayanaswamy, Kannabiran and Anasuya (135, 136&137 supra) and the dissenting opinion in APLC are in conformity with the law as declared in this judgment; and that it is not within the province of this court to declare the judgment of the Supreme Court in PUCL (8 supra) as not representing the correct legal position.
The illustrations referred to in the Full Bench majority and the assumptions drawn therefrom are also with respect, erroneous. Providing security and protection to the Parliament, the Council of Ministers, the Members of Parliament and others participating in the session in the Parliament is a legitimate function of the police and if the police resorted to firing at terrorists in order to save lives and property, that would surely constitute a legitimate exercise of the right of private defense, if the imminence, gravity and proportionality standards are satisfied. The APCLC Full Bench majority’s conclusion that since the terrorists did not intend to attack the police who fired on them, if a case were registered against police personnel for having caused the death of terrorists in the Parliament attack, they would be exposed to an almost certain conviction for the offence u/Sec. 302 IPC, is an assumption that is at clear variance with the law. Illustrations by the Full Bench majority of an extremists killing in a village in the State or of arson of a passenger train by extremists’ organization, are also non- sequitor, for reason alike.
In PUCL (8 supra) in Manipur, a disturbed area with a considerable component of terrorists activity affecting public order and even the security of the State, two persons along with some others were seized by the police from a hut, taken a long distance away in a truck, and shot there. The Apex Court (per B.P.Jeevan Reddy,J) observed: If the police had information that terrorists were gathering at a particular place and if they had surprised them and arrested them, the proper course for them was to deal with them according to law. “Administrative liquidation” was certainly not a course open to them. (emphasis)
The PUCL observation above, represents the binding standard and with respect, wholly accords with the balancing standards (between liberty and authority), propounded by Robert Jackson, J in American Communications Association (5 supra).
In Prakash Singh and Ors vs Union of India and Ors ([138][138]) the Supreme Court issued directions to the Central and State Governments to comply with a set of seven directives that delineate practical measures to kick-start police reform. The 6th directive was to set up an independent Police Complaints Authority at the State and District level to look into the public complaints against police officer(s) in cases of serious misconduct including custodial death, grievous hurt or rape in police custody. It is not known as to what is the State’s response to this directive nor the extent of State’s compliance with it.
When human life is extinguished as a consequence of Executive action, review and accountability of the State action we consider, is a constitutional necessity.
The Report of the Independent Commission on Policing for Northern Ireland spells out the several aspects to accountability in policing. According to this report: there is democratic accountability, by which the elected representatives of the community tell the police what sort of service they want from the police, and hold the police accountable for delivering it. There is transparency, by which the community is kept informed, and can ask questions, about what the police are doing and why. There is legal accountability, by which the police are held to account if they misuse their powers. There is financial accountability, by which the police service is audited and held to account for its delivery of value for public money. And there is internal accountability, by which officers are accountable within a police organization. All of these aspects must be addressed if full accountability is to be achieved, and if policing is to be effective, efficient, fair and impartial ([139][139]).
Independent over-sight bodies to augment Government and internal accountability systems with external or non-police oversight mechanisms have been set up in several jurisdictions across Europe, Africa and Canada. Such systems are to complement existing mechanisms and together to create a web of accountability from which it could be increasingly difficult for police misconduct to escape without consequences. Example of such bodies are the Independent Police Complaints Commission and the Police Integrity Commission, New South Wales; The Independent Complaints Directorate, South Africa; The Police Ombudsman in Northern Ireland; the Independent Police Complaints Commission established pursuant to the report of the inquiry by Lord Scarman and Stephen Laurence Inquiry, 1999.
Among the non-binding but international standards may be mentioned the United Nations 1979 Code of Conduct for Law Enforcement Officials; and the United Nations Basic Principles on the Use of Force and Fire Arms by Law Enforcement Officials adopted by the 8th United Nations Congress on the Prevention of Crime and Treatment of Offenders (at Havana, Cuba, during 27th August to 7th September 1999). The United Nations principles on the Effective Prevention and Investigation of extra-legal, arbitrary and summary executions, adopted on 24.05.1989 by the Economic and Social Council Resolution 1989/65 enumerate potent (though non-binding) standards that list out the regime of investigative procedures to be followed. In 1997 pursuant to the Vienna Declaration and Programme of Action, a set of Principles were drafted by the United Nations Commission on Human Rights to serve as guidelines to assist States in developing effective measures to combat impunity – The United Nations Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. The Principles were refined in 2005 to reflect contemporaneous developments in International law and practices. The principal goal of the raft of these principles is to provide for effective and enforceable remedies for the victim; and to uphold the public interest by deterring future violation.
We have referred to the evolution, organizational correctives and establishment of independent over-sight bodies in certain other jurisdictions by way of illustrating the trajectory and the dynamics of vibrant Human Rights Jurisprudence. The International conventions, best practices standards and principles are also referred to in the same context.
As pointed out by the Supreme Court in PUCL (8 supra) a Statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of International law. Our analyses of the provisions of IPC and Cr.P.C. leads us to the inference that accountability for executive conduct resulting in death of civilian(s) is ensured by a rigorous investigation, the neutrality and professionalism of such investigation reinforced by statutorily embedded judicial oversight. The relevant provisions of the IPC and Cr.P.C., the substantive and the procedural prescriptions of our criminal laws thus accord with the International Principles that mandate entrenchment of mechanisms for accountability of State actions that result in lethal consequences for civilians.
Before we proceed to record the summary of our conclusions, on the issues framed, and analysed, we deal with an abstract submission urged on behalf of the State. The learned Advocate General contended that the recurrent and regnant violence, the subversion of law and order and the challenge to the equilibrium of our civil society presented by Maoist/Naxalite activities constitute a grave crisis and challenge the sovereign authority of the State, legitimizing firm and resolute executive action. Interpretation of our laws must therefore accommodate the pragmatic demand of appropriate executive response to this crisis.
We recognize that the limitations of human foresight guarantee the eventual failure of any constitutional or legislative arrangement as an ordering principle of political experience. And insofar as emergencies expose those limits, they demonstrate the eventual contingency of all constitutional and legislated arrangements. Senator John Potter Stockton remarked (we recall this observation as it is appropriate in the context): Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy.([140][140]) It is worth reflecting that when temptation does appear, typically in the guise of an emergency; we must ask whether our commitment to constitutional maintenance demands that we honor the self-command expressed as limitations on governmental power in the constitutional and legal text, or surrender to the wish to be free of it.
An apparent assumption in the State’s argument, that our Constitution and the laws should accommodate all powers necessary to cope with the crises is that crises have beginnings and endings – that most crises are capable of resolution and that, upon their termination, the conditions and forms of constitutional government more or less return to normal.
John E. Finn perceptively observes: Few would be so foolhardy as to suggest that the workings of crisis government, particularly the flow of power to the executive, do not effect some permanent change in the ordinary patterns of constitutional government ([141][141]). Edward S. Corwin explained that post-crisis government may so little resemble pre-crisis government that the difference might, as in the case of United States following World War II, or after the New Deal amount to a constitutional revolution.([142][142])
The rule of law culture is a wonderfully complex and rich theory of political organization. Lord Bolingbroke made a classic statement on the meaning of constitutionalism. He observed that constitutionalism is a form of government conducted by fixed principles of reason directed to certain fixed objects of public good.([143][143]) The fixed principles of reason bind since, Lord Bolingbroke, formulated – the community hath agreed to be bound by them.
In a constitutional government there are substantive objectives (the fixed objects of public good), structural limitations, and procedural guarantees that limit the exercise of State power. Indeed, the concept of limited power, of restraints upon not only the exercise but also the proper object of power, is central to any understanding of constitutionalism and of a rule of law regime within it. ([144][144])
We have considered it appropriate to resonate to the abstract State claims to crisis management; with observations on the normative principles of constitutionalism and rule of law fundamentals. We say that core and critical social policy and governance choices, particularly involving rights to life and liberties must be expressed in legislative instruments. We need say no more.
The learned Advocate General, Sri K.G.Kannabiran, Sri Uday Lalit, and Sri Bojja Tarakam – learned Senior Counsel; and the other learned counsel for the several parties in the batch of cases before us, have presented the respective positions on the several critical issues that we have considered in this judgment, in considerable forensic detail and with commendable and painstaking effort. We record our gratitude to the learned counsel for the assistance rendered. We particularly place on record our gratitude to Sri C. Padmanabha Reddy, the learned Senior Counsel who assisted this court with clinical analyses and his usual fairness on the several inter-meshing substantive and procedural provisions and the relevant precedents.
Summation :-
To conclude, we hold:
(A) On issue No.1: That where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defense as the case may be, the first information relating to such circumstance (even when by a Police/Public Official; whether an alleged perpetrator is named or not) shall be recorded and registered as FIR, enumerating the relevant provisions of Law, (u/Sec. 154(1) Cr.P.C.) and shall be investigated (u/Sec. 156/157 Cr.P.C.).
(B) On issue No.2: That the existence of circumstances bringing a case within any of the Exceptions in the Indian Penal Code including the exercise of the right of private defense (a General Exception in Chapter IV IPC), cannot be conclusively determined during investigation. The opinion recorded by the Investigating Officer in the final report forwarded to the Magistrate (u/Sec. 173 Cr.P.C.), is only an opinion. Such opinion shall be considered by the Magistrate in the context of the record of investigation together with the material and evidence collected during the course of investigation. The Magistrate (notwithstanding an opinion of the Investigating officer, that no cognizable offence appears to have been committed; that one or more or all of the accused are not culpable; or that the investigation discloses that the death of civilian(s) in a police encounter is not culpable in view of legitimate exercise by the police of the right of private defense), shall critically examine the entirety of the evidence collected during investigation to ascertain whether the opinion of the Investigating Officer is borne out by the record of investigation. The Magistrate has the discretion to disregard the opinion and take cognizance of the offence u/Sec. 190 Cr.P.C.
(C) On issue No.3: That a magisterial enquiry (inquest) (u/Ss. 174 to 176 Cr.P.C.) is neither a substitute nor an alternative to the obligation to record the information as FIR and to conduct investigation into the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender (s) (u/Ss. 154(1), 156 and 157 Cr.P.C.). and
(D) On issue No.4: In view of the conclusions on issues Nos. 1 to 3 and in view of our declaration [that the information conveyed to the officer in charge of a Police Station (u/Sec.154(1) Cr.P.C.) or a complaint made to the Magistrate (u/Chpt. XV Sec. 200 Cr.P.C.), need not mention the name of the Police Officer(s) who the complainant believes is the perpetrator of the offence complained of], it is not necessary to pronounce on whether the State, the Police Establishment or a Police Officer has immunity from the obligation to disclose the identity (of a police officer who had committed an act causing the death of a person), to a person aggrieved by such death to effectively seek justice. Whether the investigating officer is required to disclose the names of the police officers who are involved in an operation resulting in civilian casualty when a request for such information is lodged by an individual, is an issue not within the spectrum of the issues falling for our determination herein. This aspect is left open. The obligation to disclose to the Investigating Officer the identity of the police officer(s) so involved, is however absolute and there is no immunity whatsoever from this obligation. Withholding of any information or material that impedes effective or expeditious investigation violates several provisions of the Indian Penal Code and the Criminal Procedure Code (pointed out in our analyses on this issue).
The reference is answered as above. No order as to costs.
Dated: 06th February 2009 ----------------------------------
LR Copy to be marked Justice Goda Raghuram
B/o
Pvsn/Pvks
-----------------------------------
Justice V.V.S. Rao
-----------------------------------
Justice R.Subhash Reddy
------------------------------------
Justice Ramesh Ranganathan
------------------------------------
Justice G.Bhavani Prasad
[1][1] K.S. Subramanian– Sage Publications, 2007, pp 139-140
[2][2] Psychologist: Harvard University; The decline of violence.
[3][3] Eric Hobsbawm – Globalisation, Democracy and Terrorism - Little, Brown – 2007.
[4][4] Alan M. Dershowitz – PREEMPTION –W.W.Norton & Co; 2006
[5][5] 339 U.S. 382 (1950)
[6][6] 2007(5) ALT 639
[7][7] 1992 Supp. (1) SCC 335
[8][8] (1997) 3 SCC 433
[9][9] (2006) 2 SCC 677
[10][10] (2006) 1 SCC 229
[11][11] (2007) 1 SCC (Crl) 193
[12][12] (2003) 7 SCC 749
[13][13] (2007) 6 SCC 171
[14][14] (1996) 11 SCC 582
[15][15] (2004) 7 SCC 768
[16][16] (2006) 2 SCC 677
[17][17] (2006) 4 SCC 359
[18][18] (2006) 5 SCC 733
[19][19] (2006) 1 SCC 229
[20][20] AIR 2008 SC 907
[21][21] (2001) 6 SCC 181
[22][22] (1979) 2 SCC 322
[23][23] (1999) 3 SCC 247
[24][24] (2004) 13 SCC 292
[25][25] (1992) 1 SCC 714
[26][26] 1988 Crl.L.J 223 Gauhati
[27][27] 1978 Crl.LJ. NOC 10. Gauhati
[28][28] 1987 (2) SCC 359
[29][29] AIR 1970 SC 940
[30][30] (1978) 2 SCC 424
[31][31] 82 Columbia Law Review (1982)
[32][32] Outlines of Criminal Law – 19th Edition p.36
[33][33] 2008, 117 Yale Law Journal, 1070
[34][34] An unpublished manuscript available at http://ssrn.com/abstract
[35][35] 9 Oxford Legal Studies, 285 (1989)
[36][36] 54 UCLA L. Rev. 117(2006)
[37][37] 40 American Jurisprudence, Second Edition – Homicide, S.135
[38][38] Policing a perplexed society - George Allen and Unwin publication, 1977
[39][39] AIR 1963 SC 612
[40][40] (1974) 4 SCC 764
[41][41] AIR 1962 SC 605
[42][42] AIR 1964 SC 1563
[43][43] AIR 1968 SC 702
[44][44] AIR 1970 All 51
[45][45] (1980) 2 SCC 218
[46][46] (2004) 9 SCC 257
[47][47] (2005) 9 SCC 705
[48][48] (2005) 10 SCC 358
[49][49] (2005) 12 SCC 657
[50][50] (2005) 10 SCC 94
[51][51] (2005) 13 SCC 323
[52][52] Corpus Juris Secondum Vol. 57, P.107
[53][53] (1970) 2 SCC 480
[54][54] (1996) 7 SCC 516
[55][55] 1981 (Supp) SCC 12
[56][56] (1971) A.C. 814
[57][57] (1995) 1 A.C. 482
[58][58] AIR 1964 SC 1850
[59][59] AIR 1966 SC 119
[60][60] (1975) 4 SCC 153
[61][61] (2006) 2 SCC 450
[62][62] (1991) 3 SCC 627
[63][63] (2003) 2 SCC 518
[64][64] 72 L.Ed. 944
[65][65] AIR 1950 SC 27
[66][66] (1978) 1 SCC 248
[67][67] (1981) 1 SCC 608
[68][68] (1989) 4 SCC 286
[69][69] AIR 1963 SC 1295
[70][70] (1978) 4 SCC 494
[71][71] (1978)4 SCC 104
[72][72] (1980) 1 SCC 81 and 93
[73][73] (1983) 2 SCC 104
[74][74] (1978) 3 SCC 544
[75][75] (1980) 3 SCC 526
[76][76] (1983) 2 SCC 68
[77][77] (1983) 2 SCC 96
[78][78] AIR 1986 SC 467
[79][79] (1974) 1 SCC 103
[80][80] 277 U.S. 438 (1928)
[81][81] 343 U.S. 169, 180 (1952)
[82][82] AIR 1945 PC 18
[83][83] AIR 1955 SC 196
[84][84] AIR 1960 SC 1113
[85][85] AIR 1968 SC 117
[86][86] (1980) 4 SCC 631
[87][87] (1977) 4 SCC 459
[88][88] (1989) 2 SCC 132
[89][89] (2006) 4 SCC 359
[90][90] (2008) 2 SCC 492
[91][91] AIR 1951 SC 207
[92][92] AIR 1959 SC 1118
[93][93] AIR 1963 SC 765
[94][94] (1978) 4 SCC 58
[95][95] AIR 1961 SC 986
[96][96] (1973) 3 SCC 753
[97][97] (1971) 2 SCC 654
[98][98] 42. British Journal of Criminology, 669 – autumn, 2002
[99][99] AIR 1962 SC 876
[100][100] AIR 1992 SC 1894
[101][101] 2003 Crl.L.J. 4414 (AP)
[102][102] 1998 Crl.L.J 4333
[103][103] (1972) 1 SCC 450
[104][104] AIR 1971 SC 1389
[105][105] (1981) 3 SCC 208
[106][106] AIR 1942 Nag. 117
[107][107] AIR 1966 SC 97
[108][108] (1970) 1 SCC 590
[109][109] (1971) 1 SCC 855
[110][110] (2005)1 SCC 568
[111][111] (1996) 9 SCC 766
[112][112] (1979) 4 SCC 274
[113][113] (1977) 4 SCC 39
[114][114] (2000) 8 SCC 239
[115][115] (2000) 2 SCC 57
[116][116] (1997) 4 SCC 393
[117][117] (1976) 3 SCC 252
[118][118] AIR 2000 SC 637
[119][119] (2000) 8 SCC 498
[120][120] 1990 Crl.L.J. 2525 (All)
[121][121] (1972) 3 SCC 414
[122][122] 2004 Crl.L.J. 2408 (All)
[123][123] 1980 (Supp) SCC 499
[124][124] 1989 Crl.L.J. 202 (Pat)
[125][125] 1978 Crl.L.J. 1238 (Kat)
[126][126] 1995 Crl.L.J. 3059 (Madras)
[127][127] 2000 Crl.L.J. 315 (Delhi)
[128][128] AIR 1963 SC 430
[129][129] 1995 Crl.L.J. 1736 (AP)
[130][130] (1993) 2 SCC 16
[131][131] 2006 AIR SCW 95
[132][132] AIR 1931 PC 254
[133][133] (1975) 4 SCC 428
[134][134] 1981 Supp. SCC 87
[135][135] 1996 (4) ALD 372
[136][136] 1997 (2) ALD 523
[137][137] 2001 (2) ALD 87
[138][138] 2006(8) SCC 1
[139][139] Chapter 5 – THE REPORT OF THE INDEPENDENT COMMISSION ON POLICING FOR NORTHERN IRELAND, 1999
[140][140] Debate over the Ku Klux Klan Act of 1871 – reported in The Congressional Globe – April 11, 1871.
[141][141] John E. Finn: Constitutions in Crisis – Political Violence and the Rule of Law – Oxford, 1991
[142][142] Corwin – Total War and the Constitution, p.172 – Alfred A. Knopf, 1947
[143][143] Lord Bolingbroke, Historical Writings – University of Chicago Press, 1972
[144][144] Charles H. Mcllwain – Constitutionalism: Ancient and Modern – Cornell University Press 1947.
Subscribe to:
Posts (Atom)