Y. SRINIVASA RAO
M.A (English Litt.,)., B.Ed., LL.M., (Ph.D) Research Scholar in Torts. Senior Civil Judge cum Assistant Sessions Judge.
A crime is an unlawful act. Wrongdoer should be punishable. The term ‘crime’ is derived from latin. Primitively, the Latin
word crīmen meant ‘charge’ or “cry of distress. In English, in 13th centure, the term ‘crime’ means, ‘sinfulness’. Law enforcement in India is performed by many law enforcement agencies. Private wrongs or civil injuries are an infringement or privation of the civil rights, which belongs to individuals, considered merely as individuals; public wrongs or crimess and misdemeanours are a breach and violation of the public rights and duties due to the whole community in its social aggregate capacity. (See. Subramanian Swamy’s case infra). It is thus not only the need to duly enforce the law, the existing lenient penal consequences un- pinching crime perpetrators, but also requires to rectify by suitable amendment with stringent penal consequences The directive principles of State policy in Part IV of the Constitution are superior to fundamental rights for common good of the society (Ramavath Hanuma @ Hanumanthu Vs. State of Telangana rep. by Public Prosecutor, High Court of Judicature at Hyderabad – 2017 (2) ALT(CRI.)(A.P) 122 ). As was held by the Apex Court, the expression Government of India appearing in Section 121 of IPC must be held to mean the State or interchangeably the people of the country as the repository of sovereignty of India. See. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs. State of Maharashtra – 2012 (8) SCJ 1 ( D.B. ).
Crime and law Enforcement:- In Halsburys laws of England as a person is not to be convicted of a crime unless he has, by voluntary conduct, brought about those elements which by common law or statute, constitute that crime. In general, a person does not incur criminal liability unless he intended to bring about, or recklessly brought about, those elements which constitute the crime. The foregoing concepts are traditionally expressed in maxim actus non facit reum nisi mens sit rea enforcement of a right and seeking remedy are two distinct facets. It should not be confused as was observed in Subramanian Swamy Vs. Union of India, Ministry of Law and others – 2016 (4) ALT(D.N.)(SC) 17 ( D.B. ) . The United Nations Code of Conduct for law enforcement Officers (which includes all officers of the law, who exercise police powers) lays down that in the performance of duties, law enforcement Officers shall respect and protect human dignity and maintain and uphold human rights of all persons. Basic human rights standards for good conduct by Law enforcement Officers by Amnesty International, inter alia, suggest, (1) Do not use force except when strictly necessary and to the minimum extent required under the circumstances and (2) Do not carry out, order or cover up extra-judicial executions or disappearances and refuse to obey any order to do so. See. People’s Union for Civil Liberties’s case infra.
Right to life:-
Article 21 of the Constitution of India guarantees right to live with human dignity. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right. Right to life is the most precious right guaranteed under Article 21 which is available to every person and even the State has no authority to violate that right. See. People’s Union for Civil Liberties and another Vs. State of Maharashtra and others – 2015 (3) SCJ 584 ( D.B. ). An action tending to violate another persons right to life guaranteed under Article 21 of the Constitution of India or putting the national security in jeopardy can never be justified by taking the plea of freedom of speech and expression. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of trial It is the constitutional duty of the Court to provide the accused with a lawyer even if accused does not ask for a lawyer. See. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid’s case (supra).
The INTERPOL is the world’s largest international police organization with 187 countries as its members. It was created in 1923. The object of establishing the INTERPOL was ‘to ensure and promote the widest possible mutual assistance between all criminal police authorities’. It facilitates cross – border police cooperation and supports as well as assists all organizations, authorities and services whose mission is to prevent or combat international crime. Even in a case where the country concerned inter se do not have any diplomatic relation, the INTERPOL aims to facilitate international police cooperation. Action is taken by it, having regard to the provisions contained in the Universal Declaration of Human Rights and keeping in view the limitation of existing municipal laws of the country concerned. It has six departments, namely – (i) The General Assembly; (ii) Executive Committee; (iii) General Secretariat; (iv) National Control Bureaus (v) Advisers; and (vi) Commission for the Control of Interpol Files. We are concerned here only with the National Central Bureaus. Each INTERPOL member country maintains a National Control Bureau (NCB) staffed by national law enforcement officers. The NCB is the designated contact point for the General Secretariat, Regional Officers and other member countries requiring assistance with overseas investigations and the location of fugitives. It serves as operational center and liking platforms between the national and the international level. In terms of Article 32 of the INTERPOL Constitution each member country is to have a NCB responsible for exchanging information and data for coordination the functioning within its own country, with other member countries as also with the General Secretariat of the INTERPOL. The INTERPOL Constitution prohibits any intervention or activities of a political, military, religious or racial character. The International policing ultimately depends on coordinated action on the part of the Member State’s police forces so as to obtain the required information or services as and when any occasion arises therefor. The Constitution of the Interpol was adopted by a Resolution of the General Assembly i.e. AG- 2005-Res-05. Initially its status was of an observed as Non Governmental Organisation (NGO). In Public International law, keeping in view its status, INTERPOL is considered to be an International Organisation with its own legal personality. See. Bhavesh Jayanti Lakhani Vs. State of Maharashtra and others – 2009 (3) ALT(CRI.)(SC) 472 ( D.B. )
Apex Court guidelines on ‘ cases of deaths in police action’ :-
No out-of-turn promotion, cash award or gallantry reward shall be bestowed on the concerned officers pursuant to their role in an encounter as this may be an incentive for officers to conduct encounters.
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:-
- Date and place of occurrence.
- Police Station, District.
- Circumstances leading to deaths:
i. Self defence in encounter
ii. In the course of dispersal of unlawful assembly
iii. In the course of affecting arrest.
- Brief facts of the incident
- Criminal Case No.
- Investigating Agency
- 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.
In order to ascertain the identity of persons killed in Police encounter, their photographs and other details should be advertised on T.V., newspapers etc.
With respect to the post mortem conducted after an encounter it is imperative that such a post mortem is, at the least, conducted in the District Level Government Hospital in the presence of at least three qualified doctors of which one must be a senior doctor. All such post- mortems must also necessarily be videotaped and copies of such videotapes preserved.
If the injured criminals during the operation encounter are found alive, not only that they should be provided medical aid immediately but also arrangements and attempts shall be taken by the independent investigative team to record their statements under Section 164 of the Criminal Procedure Code, either by a Magistrate, if possible and if not, by the Medical Officer concerned, duly attested by the hospital staff mentioning the time and factum that while recording such statements the injured were in a state of position that they will be able to give statements and the connected certificates by the doctors appended thereto.
After the examination of further witnesses and completing the investigation inclusive of securing the accused or accused persons, the independent investigative team is directed to send final report to the Court of Competent jurisdiction as required under Section 173 of the Criminal Procedure Code for further proceeding.
Either in sending the First Information Report or sending with the general diary entry referred in the guideline Nos. 1 and 2, the concerned police / independent investigative team, shall avoid any iota of delay under any circumstances whatsoever so also rough sketch showing the topography of the scene and the recovery of materials and the blood stained materials with the sample earth and the blood stained earth with the other documents viz, the spot panchnama, recovery panchnama – all seems very vital documents â the respondents police are also directed to send them to the Court of concerned jurisdiction without any delay. See. See. People’s Union for Civil Liberties and another Vs. State of Maharashtra and others – 2015 (3) SCJ 584 ( D.B. ) .
The revised guidelines/procedures to be followed in cases of deaths caused in police action framed by NHRC read as under:
A. When the police officer in change of a police station receives information about death in an encounter with the police, 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 death, it is desirable that such cases are made over for investigation to some other independent investigation 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 be investigated by State CBCID or any other specialized investigation agency.
D. A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably, within three months. The relatives of the deceased, eye witnesses having information of the circumstances leading to encounter, police station records etc. must be examined while conducting such enquiry.
E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/police investigation.
F. 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.
G. (a) All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in the following format:
- Date and place of occurrence
- Police station, district
- Circumstances leading to death:
(i) Self-defence in encounter
(ii) In course of dispersal of unlawful assembly
(iii) In the course of effecting arrest
(iv) Any other circumstances
- Brief facts of the incident
- Criminal case No.
- Investigating agency
(b) A second report must be sent in all cases of death in police action in the state by the Sr. Superintendent of Police/Superintendent of Police to the commission within three months providing following information:
- Post mortem report
- Inquest report
- Findings of the magisterial enquiry/enquiry by senior officers disclosing:
(i) Names and designation of police official, if found responsible for the death:
(ii) Whether use of force was justified and action taken was lawful:
(iii) Result of the forensic examination of handwash of the deceased to ascertain t he presence of residue of gun powder to justify exercise of right of self defence; and
(iv) Report of the Ballistic Expert on examination of the weapons alleged to have been used by the deceased and his companions. See. People’s Union for Civil Liberties and another Vs. State of Maharashtra and others – 2015 (3) SCJ 584 ( D.B. ). See. See. People’s Union for Civil Liberties and another Vs. State of Maharashtra and others – 2015 (3) SCJ 584 ( D.B. ) .
Conclusion:- In view of certain lapses in the functioning of the legal system, organized crime is posing an alarming and serious threat to the society by neutralizing the normal legal process through subversion of the enforcement machinery and causing violence against those who are inclined to depose against such crime syndicates. These criminal syndicates are making common cause with terrorist gangs and promote narco terrorism, which is being extended to the national boundaries of the country. The tentacles of organized criminal syndicates are fast penetrating into various sections of the economy and society, thereby causing violence and insecurity to the citizens. To control these criminal syndicates or gangs, the existing legal system is unable to tackle normal crime as it is inadequate to curb and control the powerful challenges put forth by the organized syndicates. See. Madasi Seetha Ramanjaneyulu @ Anajaneyulu (A-10) Vs. State of A.P. – 2006 (1) ALT(CRI.)(A.P) 443 . In some of the countries when a police firearms officer is involved in a shooting, there are strict guidelines and procedures in place to ensure that what has happened is thoroughly investigated. In India, unfortunately, such structured guidelines and procedures are not in place where police is involved in shooting and death of the subject occurs in such shooting. We are of the opinion that it is the constitutional duty of this Court to put in place certain guidelines adherence to which would help in bringing to justice the perpetrators of the crime who take law in their own hands. Universal Declaration of Human Rights (UDHR) has framed certain general principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions The principles so framed by the UDHR are intended to guarantee independence while investigating police killings and help in preventing potential for abuse, corruption, ineffectiveness and neglect in investigation.