Supreme Court Asks Uttar Pradesh Police About Progress Of Investigation In Encounter Killings

In a significant development, the Supreme Court on Friday sought a "comprehensive affidavit" from the State of Uttar Pradesh on the progress of investigation/prosecution into the police encounter killings which have allegedly taken place in the State since 2017.

The Court sought the response of the State of Uttar Pradesh on the extent of compliance with the past guidelines issued in relation to police encounters. The Bench said that it needed an affidavit from a senior DGP level rank officer. It also mulled framing further guidelines to deal with the issue of custodial killings.

The bench comprising Justices S Ravindra Bhat and Justice Aravind Kumar was hearing 2 petitions. One was filed by Advocate Vishal Tiwari in the backdrop of the killings of gangster-politician Atiq Ahmed and his brother. Tiwari sought for an independent inquiry by former SC judge into the 183 police encounters which took place in UP since 2017. The second petition was filed by Atiq Ahmed’s sister Aisha Noori for a court-monitored probe into the killings of her brothers in April 2023 when they were being taken for medical check up in police custody.

During the hearing, Justice Bhat underscored the Court's focus on the larger picture, saying, "We’re not here to conduct an investigation. We want to see the system in place here." 

The Advocate General of the UP informed the bench that the State has filed an affidavit explaining the steps and that the enquiry by the Commissions constituted by the State in respect of the killings of Atiq gang was going on.

"Commissions will go on. If you want to investigate and prosecute, the commission won't come in the way", Justice Bhat said. He pressed for more concrete action, seeking information about the accused, the stage of the investigation, and adherence to National Human Rights Commission (NHRC) guidelines.

'There’s a broader nexus behind such killings while in custody'

Justice Bhat raised questions about the prevalence of crimes within jails and the broader nexus behind such incidents. He remarked ,“It's not only in these high-profile cases, there are crimes in jails. It’s a worrisome matter -there's a nexus. We want to know who’s interested in breaking nexus?”

Justice Aravind Kumar echoed his colleague's concerns, inquiring bout the steps taken by authorities to monitor the situation.

“We’ve filed an additional affidavit. The Commission requires one month’s time", replied the Advocate General.

Justice Bhat delved deeper into the matter, questioning how accused individuals gained access to information that aids their criminal activities within jails. Referring to the landmark DK Basu case, which established guidelines to prevent custodial torture and deaths, Justice Bhat added, "Why did the DK Basu case happen? It's a systemic issue, we need to keep correcting it.”

'There could be elements within police involved, how do you inspire confidence when there’s such killing in custody' 

At this juncture, Advocate Vishal Tiwari intervened to voice concerns about the credibility of the Special Investigation Team (SIT) handling the Atiq Ahmed murder case, given the allegations against the police themselves.

Justice Bhat emphasized on introducing a high-ranking officer to supervise the probe to ensure at a more accountable and trustworthy process. The judge expressed surprise at Atiq Ahmed and his brother being killed when they were surrounded by police officers.

"There could be elements within the police involved. 5 people are guarding, and some people come and shoot. Tomorrow how do you inspire confidence? Sometimes there’s complicity", Justice Bhat told the UP AG.

SC directs a detailed affidavit to be filed by DGP about the status of investigation and chargesheet

Furthermore, the bench sought the status of investigation and trial in the 183 encounter cases. Justice Bhat proposed a mechanism to monitor progress, stating, "We'll record your statement on progress. Let it be done by DGP - status of investigation and copies of the chargesheet."

Advocate General submitted that Magisterial Inquiry has been done in most of the cases and has been accepted and closed.

This was met with skepticism when Justice Bhat said that Magisterial inquiry is a routine one. He clarified that the bench would issue notice confining it to the issue of framing guidelines.

Have to determine the need for appropriate guidelines in the absence of periodic mechanism in such cases

At this stage, Senior Advocate Mukul Rohatgi, representing UP Govt, appeared to submit that Justice BS Chauhan was earlier appointed by the Supreme Court to probe the Vikas Dubey encounter and the present petitioner had unsuccessfully challenged his appointment. He further informed that the inquiry by 2 judicial commissions are underway in respect of the killings of the Atiq Ahmed and family. 

Justice Bhat, however, clarified that the commission’s inquiry was not being closed but the bench has to determine the need for appropriate guidelines.

In the midst of the exchange, Rohatgi pointed out the existence of guidelines issued in the case of PUCL (People's Union for Civil Liberties).

Justice Bhat assured him that “We’ll not reiterate these guidelines”.

His attention then shifted to the broader context of the case and the need for a monitoring mechanism. He asked Rohtagi, “So many cases have occurred, is there any monitoring mechanism, on a periodic basis? How is the prosecution going on?”

In response, Rohatgi submitted that a status report was filed on April 28, 2023. He added that the affidavit detailed a series of reforms suggested by Justice Chauhan, advocating for a separate investigation unit and law enforcement officers specifically focused on maintaining law and order in Uttar Pradesh.  

However, Justice Bhat wanted a detailed account and specifically asked “Please show what you’ve done with respect to these instances. How is the prosecution progressing? We want this to be a template. Sometimes it might be the police or someone else. There are interests at the behest of which something can happen”

In response to the judge's inquiry, Rohatgi offered to submit another status report.

The counsel representing Aisha Noori voiced concerns about potential complications when 2 commissions are looking after the same connected matters. He submitted “While Justice Bhonsle would oversee Justice Chauhan’s commission implementation, Retired Justice Rajiv Lochan Mehrotra would look into the killing of Asad Khan.”

In response, Sr Adv Mukul Rohatgi retorted that the only connection is with respect to the family.

The petitioner's counsel then turned the court's attention to a significant precedent set by the People's Union for Civil Liberties (PUCL). He highlighted that the case mandated the submission of biannual statements to the National Human Rights Commission (NHRC). He said, “These statements, according to the PUCL guidelines since 2014, were required to be provided by the Director General of Police (DGP).”

The counsel requested that the court examine the NHRC's compliance of these statements, further highlighting the importance of transparency and adherence to established guidelines.

In light of the extensive discussions and inquiries made during the proceedings, the court issued a significant directive. It ordered the state to file a comprehensive and detailed report, presented in the form of an affidavit. This report is expected to outline the current stage of investigation and trial in relation to the petitioner's case. It granted a six-week deadline for the submission of these reports.

Case title- Vishal Tiwari v. Union of India| Aisha Noori v. Union of India, W.P. Crl. 177/2023| W.P. Crl. 280/2023

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