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In 1977, the Andhra Pradesh government appointed Justice V. Bhargava to inquire into the killing of 300 alleged Naxalites in ‘staged’ encounters. After months of inquiry, Justice Bhargava ended his inquiry without concrete result after the government – in the wake of damning evidence against the police emerging – directed him to hold proceedings in camera. That direction was only the last of a series of government attempts to derail the pursuit of the truth behind fake encounters.
In the recent case of the Justice Sirpurkar Commission, however, the Telangana government has not been so successful in covering up the truth behind the killing of four suspects in an encounter in Hyderabad 2019. The commission concluded that the police deliberately opened fire with intent to kill the suspects. It recommended that the 10 policemen be prosecuted under murder charges. Its finding offers a flicker of hope for the underclass in an otherwise loaded justice system.
In the wake of the commission’s report, the Supreme Court has transferred the case to the Telangana high court to decide the legal course of action on the findings.
Initial responses to the report indicate that the state may contemplate contesting its findings. This is, however, easier said than done. The findings are not the result of a trial court against whose decision an appeal may be laid. The commission has not declared anyone guilty; it has only gone so far as to establish that prima facie material exists that a case can be made out against 10 policemen, such that a first information report (FIR) ought to be registered against them. No contestations can be permitted at this stage of prosecution. At best, the accused policemen could question the procedures followed by the commission, though not much will come of their objections.
Where does the state stand on the revelations of the report?
So far, it has neither been asked for its opinion nor has it volunteered to speak. The rule of law requires that the state should have filed an FIR against the policemen, and the judiciary should have set the legal process in motion. That may be hard to expect, however, when the actions of the accused policemen have the stamp of approval of the state.
An offence of first-degree murder by an ordinary citizen rightly spurs the police department to action, to institute the process of prosecution. When the police are the accused, however, the Telangana Police has a long history of refusing to act. Even producing prima facie material on its lawlessness requires ordinary citizens to move the higher judiciary.
Findings of SIT constituted by Telangana government
While constituting the commission, the Supreme Court permitted the Special Investigation Team (SIT) of the state to continue its investigation. The SIT submitted its final report to the jurisdictional magistrate. It justified the firing on the suspects and the consequential deaths on grounds of self-defence, as a part of the attempt to arrest them. The magistrate accepted this report as the truth on the matter and shelved it, as has been the wont in the state since 1969.
The commission examined this report based on the evidence provided by witnesses.
According to the SIT, the police party had first been instructed to fire in the air, and then a second command had been given to fire at the fleeing suspects. The commission found, however, that the SIT had no evidence whatsoever in support of its finding with respect to the second command – neither its witnesses nor the police officers involved had mentioned such a command in any statement available on record to the SIT.
The SIT had arrived at this “wrongful and questionable” version of events, presumably, to make available the defence of the police having followed a lawful command.
From the commission’s own examination of the witnesses, six versions of the second command for firing emerged. The policemen who opened fire admitted that the accused were clearly visible to them; yet, the SIT had claimed that the counter firing command was issued to shoot in the “direction of sense of sound” with an intention to catch them without losing their lives.
If the accused were clearly visible to them, logically, why did they shoot “in the direction of the sound?” The state cannot justify the actions of the police in such categorical terms in the absence of clarity regarding the objective of firing and the exact nature of the command.
These findings are in the public domain. The jurisdictional magistrate should outrightly reject the final report of the SIT, direct the registration of an FIR and set in motion the legal process. Unfortunately, this may be too much to ask of the magistrate if the history of the judicial process in cases of encounters is anything to go by.
Distorted justice system and public perception
There exists a long history of illegal practices that explains this brazenness towards the right to life. Around 4,000 citizens, mostly political militants and their sympathisers but occasionally alleged dacoits, ISI agents, ‘rowdies’ and eve-teasers, were killed in the Telugu-speaking districts since 1969 by the police. Invariably in most cases, the police have filed similar “final reports” before the magistrates claiming that they fired in self-defence.
Those reports have been accepted as the final word on the matter and buried silently without a trace of any judicial process. Thus, the phenomenon of fake encounters has acquired the consistent implicit backing of the state and the judiciary. They normalised these illegalities, which in turn shaped the public perception into one that was not skeptical of police killings. Thus, the public and political parties alike do not deign it inappropriate to publicly demand an “encounter” of those accused of gruesome murders. With trust in the judiciary probably having evaporated long ago, encounter killings are seen as a means to quick punishment but couched as justice.
Though human rights organisations have been challenging these perceptions of police killings being legitimate, they could only mount lengthy legal battles thrice: first, before the Justice Bhargava Commission (in 1977); second, before Justice Ranganath Misra of NHRC in 1995; and third, before the high court of Hyderabad in 2009.
A five-judge bench of the high court decided that where a police officer causes the death of a person in self-defence, the first information relating to such circumstance should be recorded and registered as an FIR.
It also further concluded that a routine magisterial inquest is neither a substitute nor an alternative to the obligation to record the information as an FIR and to conduct investigation and if necessary to take measures for the discovery and arrest of the offenders.
More importantly, it categorically decided that the opinion of the investigating officer in the final report is only an opinion. As such, the magistrate has the discretion to disregard it and to critically examine the entirety of the evidence to ascertain whether the opinion of the investigating officer is borne out by the record of the investigation.
This is the precise duty that none of the judicial magistrates are able to discharge independent of the state, which compelled the human rights defenders to move the high court and Supreme Court in the present case.
The imprimatur of the Telangana government
It is important to understand what type of evidence the state had provided in the present case, and what attempts were made to tamper with evidence by its organs and how they raised frivolous objections to thwart the truth.
It is hard to believe that the 10 policemen took the law into their own hands without the backing of their superiors. Unsurprisingly, the Sirpurkar Commission is categorical that their actions have the stamp of approval of the government. The legally puerile tactics they adopted in producing, manipulating and frustrating the process of inquiry reflect this approval.
As the inquiry progressed to the deeper layers of their operations, such that a chain of command could be established to affix responsibility on the senior officers from whom directions to carry out the killings must have arisen, the police stopped cooperating as witnesses.
To the greatest possible extent, they attempted to disentangle their performance with that of their supervisory officers. Similarly, senior IPS officers started testifying that their statements had been based on the information provided by subordinate officers, as if no chain of command existed. The incoherent, disjointed and absurd testimonies they offered stood in stark contrast to the approach of unified command they had demonstrated till then in handling the suspects.
This obfuscation has served them well: since no material evidence is available to establish command responsibility, the commission could only point fingers at the lower-level officers for the death of suspects.
Tactics employed by the authorities during the inquiry
The commission was mandated to examine the circumstances in which the suspects’ death in custody had taken place and to find out any offence which was committed in the process.
At the outset, in response to its public call, the commission promptly received affidavits from the families of the victims but the police took six months to file their records. Realising that the material submitted by the police was scant and irrelevant, the commission called for records from the NHRC, which had recorded statements immediately after the incident, and summoned 59 personnel to testify.
The inquiry being non-adversarial in nature, the commission expected full cooperation from all the parties and tried to ensure impeccable procedural fairness. It gave every opportunity to the police to defend their positions, offer their versions, even correct and improvise their earlier evidence. They were permitted the right to legal representation.
However, it is their attempts to retract their evidence that filled the missing squares in the puzzle, and led the Commission to conclude that they “deliberately fired upon the accused with an intent to cause their death and with the knowledge that the firing would invariably result in the death of the deceased suspect.”
Lack of cooperation during the probe
A total of 1,341 affidavits were received by the commission, of which 1,333 were stereotypical in nature: in substance, they asserted that the suspects were hardened criminals and the police force acted professionally. The commission felt that there was no need to examine these persons as none of them had any personal knowledge about the incident. There is no point in guessing who was behind these affidavits.
The state failed to submit video footage pertaining to the movements of the police, records pertaining to their injuries and the treatments they received. Consequently, the commission called for the medical records, including X-ray films and scan reports of police officials alleged to have been injured, finally resulting in the commission stating that the police version of the exaggerated injuries having been inflicted by the suspects is false.
The extent of the state’s failure to cooperate is evident from the commission’s remarks that it had been given “some photos and bits and pieces of video recording,” and that the discrepancies in the police version of the scene of offence could only be explained by the original record of the scene of offence not having been submitted to the commission.
Attempts to restrict the scope of inquiry
The commission tried to comprehend the legality of the custody, including the facts of arrest, initial remand to judicial custody and subsequent police custody of the suspects.
However, counsel for the policemen repeatedly tried to restrict the scope of inquiry to just the incident of the deaths and argued that the circumstances leading to the death of suspects and their juvenility were beyond the scope of the commission. But the commission felt that, as a fact-finding body, it had a duty to examine all the connected issues with great latitude as the deaths happened in custody.
The commission examined the question of juvenility of the suspects at the request of their families. Again, the police have objected to the inclusion of this aspect in the inquiry. When the commission refused to interpret its mandate in a narrow manner and examined the school records of the suspects, counsel for the police tried to discredit the evidence of the government school headmasters.
Eventually, the commission concluded that three of the four suspects were juveniles aged between 15 and 17, which rendered their very arrest, remand to judicial custody, subsequent grant of police custody illegal, not to speak of their death.
Stressing on the strict rules of the Indian Evidence Act 1872, lawyers for the police tried several times to frustrate the process. The demand for ‘fair procedure’ when their innocence or culpability was at stake stood in stark contrast to the fact that they had dealt with the suspects as if they never heard of the criminal procedure code: they issued an arrest memo even without the name of the suspects; it included offences even before the disclosure of commission of the offence.
The even more staggering fact is that charges of rape were included without any material evidence, and their claim of the time of the suspects’ arrest is riddled with contradictions.
Consequently, the commission was compelled to conclude that most of the documents of arrest were fabricated. Refusing to speak in English before the commission is another consistent tactic they adopted, despite being competent English speakers. Almost all the witnesses did not speak the truth, the commission felt.
The way forward
Just because things have always been that way does not mean they are meant to be like that. So, while deciding the legal course of action on the findings, the high court has to understand the attitude that the state has been adopting since 1969.
The evidence to date suggests that the present prosecution will do its best to drown the case in endless tactics. This situation does not inspire the confidence that the victims would get any justice in the near future.
The only way to ensure successful prosecution of the police officers is to entrust the case to an independent agency with a separate trial court for the purpose located outside Telangana. Only then can the sincere efforts of the commission – and the millions of rupees the public exchequer spent on it – not be a waste.
Murali Karnam teaches at NALSAR University of Law, Hyderabad.