By S A Ishaqui
Hyderabad,Feb. 13: The recent directive of the AP High Court on encounter deaths has effectively barred the police from registering a case under Section 174 CrPC (suspicious death) after such incidents.In its significant verdict, the five member bench of the HC had asked the state government to consider encounter deaths as murders.
This means that police officers would also have to restrain themselves from giving a narrative of the encounter from their own perspective. Neither can they escape from the provisions of law by claiming self-defence at the initial stage of the investigation.
A perusal of the full text of the judgment, available with me , reveals that the bench found fault with the usual practice of the police to register the death under Section 174 of CrPC for the purpose of investigation.“We have recorded the conclusion that an inquest is not for the purpose of ascertaining the perpetrator of an offence,” said the court. “There appears no logical purpose served in enjoining that the case registered under Section 174 CrPC should be made over for investigation to an independent agency.”
The court said the practice now followed in the state was in clear deviance of the National Human Rights Commission guidelines and the provisions of standing orders 546(6) of the AP Police Manual. “It is an extravagant subversion of the rule of law,” the HC said.
The bench also felt that the failure to record and register the primary offence of the death of civilian(s) in an exchange of fire with police officers was a grave and wholly unwarranted transgression of constitutional and sovereign responsibility.
According to the court, the state was legislatively mandated to record and register a cognisable offence and thereafter set the criminal law in motion including immediately launching an investigation into the offence.
“We hold that such information shall be recorded under Section 154 CrPC, a process that ensures judicial control,” said the court.
Sunday, February 15, 2009
Court blocks Maytas road
By S A Ishaqui
Hyderabad,Feb. 13: The AP High Court on Friday stalled the government order awarding a road contract of Rs 120 crore on nomination basis to Maytas Infra Ltd, owned by family of the jailed Satyam foun-der, Mr B. Ramalinga Raju. The directive was issued even as the state Cabinet ratified the order of the roads and buildings department allotting the work to Maytas.
The Chief Minister, Dr Y.S. Rajasekhar Reddy, had earlier defended giving the contract to Maytas by terming it a “cautious and conscious” decision taken after assessing the situation. On December 20, 2008, a fortnight before the Satyam scam erupted, the government had entrusted the construction of a road from Mangapatnam to K. Sugumanchipalli village in Kadapa district to Maytas.
The existing road would get submerged during the construction of a dam. Mr P. Narayana Reddy, sarpanch of the Obannapet village, and two others filed a petition challenging the allotment of work to Maytas. Counsel for the petitioner, Mr P. Veera Reddy, told a division bench comprising Chief Justice Anil R. Dave and Justice Ramesh Ranga-nathan that awarding such huge work on nomination basis to Maytas was illegal. He said that after the Satyam scam, Karnataka, Orissa and Maharashtra had cancelled contracts given to Maytas.
The court directed the government to stay proceedings on the GO. “If the award was not conferred in favour of Maytas don’t confer it,” said the bench. “If conferred, do not proceed further.”
The Chief Minister, Dr Y.S. Rajasekhar Reddy, had earlier defended giving the contract to Maytas by terming it a “cautious and conscious” decision taken after assessing the situation. On December 20, 2008, a fortnight before the Satyam scam erupted, the government had entrusted the construction of a road from Mangapatnam to K. Sugumanchipalli village in Kadapa district to Maytas.
The existing road would get submerged during the construction of a dam. Mr P. Narayana Reddy, sarpanch of the Obannapet village, and two others filed a petition challenging the allotment of work to Maytas. Counsel for the petitioner, Mr P. Veera Reddy, told a division bench comprising Chief Justice Anil R. Dave and Justice Ramesh Ranga-nathan that awarding such huge work on nomination basis to Maytas was illegal. He said that after the Satyam scam, Karnataka, Orissa and Maharashtra had cancelled contracts given to Maytas.
The court directed the government to stay proceedings on the GO. “If the award was not conferred in favour of Maytas don’t confer it,” said the bench. “If conferred, do not proceed further.”
Sunday, February 8, 2009
Police: Who will fight terror?
By S A Ishaqui
Hyderabad,Feb. 6: “Who will come forward to take part in operations like in the terror attacks in Mumbai,” a police officer asked in the face of the AP High Court ruling that ordered FIRs to be filed on police officials who participate in encounter killings.There were security worries too. “Maoists target officials involved in operations,” an officer said, explaining the rationale of not naming those who take part in operations.“Now if the names are exposed then they will be targeted easily,” an official said. “Vyas and Umesh Chandra were gunned down. Officials become easy targets,” he said.Legal experts say the judgment, which has wide ramifications, will come in force immediately and the government would not be able to request the court to keep it in abeyance till an appeal.The senior criminal lawyer, Mr C. Padmanbha Reddy, amicus curiae in the case, welcomed the verdict and said that from now on any death caused by police action would come under the purview of section 302 of the IPC. Police cannot escape by claiming right of self defence.“I feel that from now on no police officer will resort to fake killings,” Mr Reddy said. “Even a constable will think twice before opening fire on a person on the orders of his superiors.”Mr Bojja Tarakam, another senior counsel, said that it was an amazing verdict after 40 years of struggle by rights organisations.It had retrospective affect and would enable people to ask police to reopen the old cases, he said. Revolutionary writer Varavara Rao said 6,000 Maoists were killed in fake encounters in the state. “We will launch a struggle to reopen most of the cases,” Mr Rao added.
Hyderabad,Feb. 6: “Who will come forward to take part in operations like in the terror attacks in Mumbai,” a police officer asked in the face of the AP High Court ruling that ordered FIRs to be filed on police officials who participate in encounter killings.There were security worries too. “Maoists target officials involved in operations,” an officer said, explaining the rationale of not naming those who take part in operations.“Now if the names are exposed then they will be targeted easily,” an official said. “Vyas and Umesh Chandra were gunned down. Officials become easy targets,” he said.Legal experts say the judgment, which has wide ramifications, will come in force immediately and the government would not be able to request the court to keep it in abeyance till an appeal.The senior criminal lawyer, Mr C. Padmanbha Reddy, amicus curiae in the case, welcomed the verdict and said that from now on any death caused by police action would come under the purview of section 302 of the IPC. Police cannot escape by claiming right of self defence.“I feel that from now on no police officer will resort to fake killings,” Mr Reddy said. “Even a constable will think twice before opening fire on a person on the orders of his superiors.”Mr Bojja Tarakam, another senior counsel, said that it was an amazing verdict after 40 years of struggle by rights organisations.It had retrospective affect and would enable people to ask police to reopen the old cases, he said. Revolutionary writer Varavara Rao said 6,000 Maoists were killed in fake encounters in the state. “We will launch a struggle to reopen most of the cases,” Mr Rao added.
No self-defence for cops: HC
By S A Ishaqui
Hyderabad,Feb. 6: Following are the excerpts of the judgment delivered by the Andhra Pradesh High Court on Friday in the encounter deaths’ case.The bench said, “Where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstances (even where by a police/public official, whether an alleged perpetrator is named or not) shall be recorded and registered as an FIR enumerating the relevant provisions of law (Under Sections 154(1) 156 and 157 CRPC) and shall be investigated”.Further, it held that the right of private defence cannot be conclusively determined during investigation. The opinion recorded by the investigation officer (on self-defence) in the final report forwarded to the magistrate (Section 173 CRPC) is only an opinion. “Such opinion shall be considered by the magistrate in the context of the record of the investigation together with the material and evidence collected during the course of investigation. The magistrate (notwithstanding an opinion of the investigating officer …) shall critically examine the entirety of the evidence collected during the investigation to ascertain whether the opinion of the investigation officer is borne out by the record of the investigation.The magistrate has the discretion to disregard the opinion and take cognisance of the offence under Section 190 CRPC.”It added that a magisterial enquiry (inquest) under section 174 to 176 CRPC 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 under Section 154(1) and 157 Crpc.The bench pointed out that in view of its declaration (that the information conveyed to the officer in charge of a police station or a complaint made to the magistrate need not mention the name of the police officers who the complaint believes in the perpetrator of the offence) it is not necessary to pronounce on whether the State/the police establishment or a police officer is immune from the obligation to disclose the identity (of a police officer who had committed an act causing death) to a person aggrieved by such death to effectively seek justice.“Whether the investigation officer is required to disclose the name of the police officers who are involved in an operation resulting in civil 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,” said the HC.However, the court said that the obligation to disclose to the investigation officer the identity of the police officers involved was absolute and there was no immunity whatsoever from this.
Hyderabad,Feb. 6: Following are the excerpts of the judgment delivered by the Andhra Pradesh High Court on Friday in the encounter deaths’ case.The bench said, “Where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstances (even where by a police/public official, whether an alleged perpetrator is named or not) shall be recorded and registered as an FIR enumerating the relevant provisions of law (Under Sections 154(1) 156 and 157 CRPC) and shall be investigated”.Further, it held that the right of private defence cannot be conclusively determined during investigation. The opinion recorded by the investigation officer (on self-defence) in the final report forwarded to the magistrate (Section 173 CRPC) is only an opinion. “Such opinion shall be considered by the magistrate in the context of the record of the investigation together with the material and evidence collected during the course of investigation. The magistrate (notwithstanding an opinion of the investigating officer …) shall critically examine the entirety of the evidence collected during the investigation to ascertain whether the opinion of the investigation officer is borne out by the record of the investigation.The magistrate has the discretion to disregard the opinion and take cognisance of the offence under Section 190 CRPC.”It added that a magisterial enquiry (inquest) under section 174 to 176 CRPC 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 under Section 154(1) and 157 Crpc.The bench pointed out that in view of its declaration (that the information conveyed to the officer in charge of a police station or a complaint made to the magistrate need not mention the name of the police officers who the complaint believes in the perpetrator of the offence) it is not necessary to pronounce on whether the State/the police establishment or a police officer is immune from the obligation to disclose the identity (of a police officer who had committed an act causing death) to a person aggrieved by such death to effectively seek justice.“Whether the investigation officer is required to disclose the name of the police officers who are involved in an operation resulting in civil 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,” said the HC.However, the court said that the obligation to disclose to the investigation officer the identity of the police officers involved was absolute and there was no immunity whatsoever from this.
APHC muzzles cop guns
By S A Ishaqui
Hyderabad,Feb. 6: In a verdict carrying far-reaching consequences, the AP High Court on Friday ruled that an FIR should be registered against a police officer involved in an encounter, custodial death or any death at police hands.A larger bench ruled that a police officer cannot claim right of self-defence at the investigation level following an encounter.
Till now, the procedure was that police officials involved in an encounter would file a complaint alleging attempt to murder by the other party. If the target died in the encounter, they would claim self-defence. The matter would be closed at the investigation level.
Now, the court wants all the sections of the CrPC that such a case attracts to be mentioned, and investigated. The case has to be decided during the course of trial, said the larger bench headed by Justice Goda Raghuram and comprising Justices V.V.S. Rao, R. Subhash Reddy, Ramesh Rangana-than and G. Bhavani Prasad.
The verdict came on a batch of writ petitions filed by the AP Civil Liberties Committee and relatives of Maoists who were killed in encounters. The petitioners had wanted a direction to register murder cases against police personal participating in encounters.
The issue was earlier dealt with by a three-member bench, but there was a difference of opinion. Justice Bilal Nazki, who headed the bench at that time, opined that a murder case should be registered against police personnel, but the other two judges differed with the opinion. The issue came up before another three-member bench which referred it to the larger bench.
The larger bench on Friday unanimously held that an FIR should be issued according to the information received by a station house officer related to a cognisable offence.The court ruled that “where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstances (even where by a police /public official, whether an alleged perpetrator is named or not) shall be recorded and registered as an FIR enumerating the relevant provisions of law and shall be investigated.”
The court said, “the existence of circumstances bringing a case within any of the exceptions in the Indian Penal Code, 1860, including exercise of the right of private defence cannot be conclusively determined during investigation.”The court held that the final report submitted by the police officer to a magistrate on completion of the investigation is not conclusive. “It is only an opinion. Such opinion shall be considered by the magistrate in the context of the record of the investigation together with the material and evidence collected during the course of investigation”.
It said the magistrate should examine the evidence to ascertain whether the opinion of the investigation officer is borne out by the investigation. The magistrate has the discretion to disregard the opinion and take cognisance to the offence according to law.
The bench unanimously held that a magisterial inquiry (under Section 176 of the CrPC) was neither a substitute nor an alternative to the obligation to record the information as FIR and to conduct investigation.If necessary the inquiry has to take measures for the discovery and arrest of the offender under Sections 154 (1) 156 and 157 of the CrPC.
The sections deal with registering an FIR, receiving information and conducting investigation. The bench could not pronounce its opinion on whether there was an obligation to disclose the identity of a police officer who had caused the death of a person; and if there was an obligation, under what circumstances and contexts. The court said this aspect was left open.
Hyderabad,Feb. 6: In a verdict carrying far-reaching consequences, the AP High Court on Friday ruled that an FIR should be registered against a police officer involved in an encounter, custodial death or any death at police hands.A larger bench ruled that a police officer cannot claim right of self-defence at the investigation level following an encounter.
Till now, the procedure was that police officials involved in an encounter would file a complaint alleging attempt to murder by the other party. If the target died in the encounter, they would claim self-defence. The matter would be closed at the investigation level.
Now, the court wants all the sections of the CrPC that such a case attracts to be mentioned, and investigated. The case has to be decided during the course of trial, said the larger bench headed by Justice Goda Raghuram and comprising Justices V.V.S. Rao, R. Subhash Reddy, Ramesh Rangana-than and G. Bhavani Prasad.
The verdict came on a batch of writ petitions filed by the AP Civil Liberties Committee and relatives of Maoists who were killed in encounters. The petitioners had wanted a direction to register murder cases against police personal participating in encounters.
The issue was earlier dealt with by a three-member bench, but there was a difference of opinion. Justice Bilal Nazki, who headed the bench at that time, opined that a murder case should be registered against police personnel, but the other two judges differed with the opinion. The issue came up before another three-member bench which referred it to the larger bench.
The larger bench on Friday unanimously held that an FIR should be issued according to the information received by a station house officer related to a cognisable offence.The court ruled that “where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstances (even where by a police /public official, whether an alleged perpetrator is named or not) shall be recorded and registered as an FIR enumerating the relevant provisions of law and shall be investigated.”
The court said, “the existence of circumstances bringing a case within any of the exceptions in the Indian Penal Code, 1860, including exercise of the right of private defence cannot be conclusively determined during investigation.”The court held that the final report submitted by the police officer to a magistrate on completion of the investigation is not conclusive. “It is only an opinion. Such opinion shall be considered by the magistrate in the context of the record of the investigation together with the material and evidence collected during the course of investigation”.
It said the magistrate should examine the evidence to ascertain whether the opinion of the investigation officer is borne out by the investigation. The magistrate has the discretion to disregard the opinion and take cognisance to the offence according to law.
The bench unanimously held that a magisterial inquiry (under Section 176 of the CrPC) was neither a substitute nor an alternative to the obligation to record the information as FIR and to conduct investigation.If necessary the inquiry has to take measures for the discovery and arrest of the offender under Sections 154 (1) 156 and 157 of the CrPC.
The sections deal with registering an FIR, receiving information and conducting investigation. The bench could not pronounce its opinion on whether there was an obligation to disclose the identity of a police officer who had caused the death of a person; and if there was an obligation, under what circumstances and contexts. The court said this aspect was left open.
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