Allegations Of Fake Encounters In Assam Are Serious, Human Rights Commission Should Take Proactive Approach: Supreme Court

While hearing a plea raising the issue of 'fake' encounters in Assam, the Supreme Court today expressed that there is a legislative mandate behind establishment of Human Rights Commissions and they are expected to act pro-actively in civil liberty matters.

In the context of Assam, it called on for data regarding enquiry, if any, initiated by the Assam Human Rights Commission into cases where allegations of 'fake' encounter were levelled.

A bench of Justices Surya Kant and Ujjal Bhuyan was hearing a special leave petition filed against a Gauhati High Court order, whereby the petitioner's PIL raising the same issue was dismissed. Reportedly, the High Court was of the view that no separate probe into the alleged incidents was required, as state authorities were conducting investigation in each case.

Advocate Prashant Bhushan, appearing for the petitioner, contended that hundreds of encounters have taken place in Assam, and there has been gross non-compliance of the guidelines laid down by the top Court in PUCL v. State of Maharashtra. He urged that in majority cases, there was neither any forensic and ballistic analysis, nor any Magisterial enquiry or independent investigation. Rather, FIRs were registered against the victims of the encounters and police personnel accused of encounters themselves probed the cases of encounter victims.

Citing specific incidents and affidavits filed by victims of the encounters, Bhushan drew the court's attention to the case of a lady who claimed that her husband was murdered in police custody. As per this lady, her husband's body had several injuries (missing nails, broken bones, etc.), which suggested third-degree torture.

Emphasizing that FIRs were registered against the victims of the encounters, the counsel stressed that no investigation was ever done into the allegations of encounters being staged.

On the other hand, Additional Advocate General for Assam Nalin Kohli pointed out that the High Court expressed concerns about the petitioner's credentials and "patently false" statements. Further, it was urged that the petitioner's PIL was viewed as premature and essentially, he had sought data through an Article 226 petition.

Hearing the counsels, the bench queried if the National Human Rights Commission ordered any investigation into the case(s). Bhushan responded to the same, saying that, the petitioner first approached the NHRC only. However, the NHRC transferred the case to the State Human Rights Commission, which in turn closed it.

Assailing the closure by Assam HRC, Bhushan said that the Commission did not do anything for 6 months, and only following that, the petitioner filed a PIL before the High Court, citing which the Assam HRC closed the case before it, even though notice had not been issued to it (or to the State of Assam). 

The Bench noted that the matter raises a very serious, alarming issue, inasmuch as 171 cases are reported to have been filed alleging 'fake' encounters. While some are death cases, the others are grievous injury cases.

"Petition such as this can't be brushed aside as premature...Fact remains there was an encounter...[Assam] has had a troubled past and reports are in public domain...171 is quite a large number of cases...the circumstances under which the accused have died raise grave suspicion... […] referred to the Jorhat incident, where the accused was at 3 o clock in the morning […] from behind by vehicle…one Moregaon incident, alongwith handcuff, accused was found jumped into a well", observed Justice Bhuyan.

The judge, who hails from Assam, further lamented the targeting of indigenous communities, saying, "People from indigenous communities are being targeted is not right…people from the indigenous communities, everywhere they are being targeted!"

Justice Bhuyan also referred to a recent judicial enquiry report of a commission headed by retired Gauhati High Court judge BD Agarwal pertaining to a three-year old eviction drive in Assam's Darrang district, which turned violent and left two people dead and others injured. "BD Agarwal has recently submitted one judicial enquiry report saying that police have gone overboard, though eviction was justified".

Supplementing, Justice Kant said, "Allegations are of serious nature. We expect Human Rights Commissions to be pro-active...".

In reply, Kohli conveyed that Assam police is not concerned with the identities of the accused persons and in the eviction matter, action was taken in compliance of a High Court order.

Responding to the "troubled past" remark, the AAG pled that Assam has come a long way in the war against militancy. He submitted that the crime angle has changed - 'drugs' being the new fight. Pointing how Assam acts like a gateway, he remarked that the Court should take into account other factors as well, when considering Assam's history.

Hearing him, the Court assured that it is conscious of the sensitivity in Assam and its geographical location. However, the present case is not drug-related, and even otherwise, there has to be compliance with the mandate of PUCL judgment.

The Court further opined that a Human Rights Commission has duty to follow-up complaints on its own, regardless of whether the victim/relative of the victim pursues it or not.

Ultimately, the Court asked the counsels to come up with data on two aspects - (i) who investigated into the allegations and what was the outcome? (ii) whether State Human Rights Commission conduct any independent inquiry using its own investigative machinery?

Background

The plea is filed by one Arif Md Yeasin Jwadder, an advocate from Assam, raising the issue of encounters by police personnel in the state. The petitioner claims that more than 80 fake encounters took place between Assam police and persons accused in different cases since May 2021 (when Chief Minister Himanta Biswa Sarma took charge). He seeks an enquiry by an independent agency, like the CBI, SIT or a police team from other states.

Notice was issued on the petition on July 17 last year, calling for the response of the National Human Rights Commission and Assam Human Rights Commission, besides the Assam government.

In April, the Court suggested that the petitioner place on record some additional information. Pursuant to the same, he is stated to have filed the affidavits of victims of Tinsukia encounter case, in which three persons (Deepjyoti Neog, Biswanath Burgohain and Manoj Buragohain) were allegedly injured in police firing.

The petitioner states that family members of two victims of the Tinsukia encounter case viz. Biswanath and Manoj had wanted to lodge a missing persons report. But, the officer-in-charge of the concerned police station refused to lodge the complaint unless they mentioned that the victims were going to join the banned militant organization-ULFA. Rather, an FIR was lodged against the victims after the encounter took place.

It is also alleged that the officer-in-charge of Police Station Dholla (Assam) appointed himself as an Investigating Officer in the case, even though he was present at the scene of the encounter and it was his pistol that was allegedly snatched by victim-Deepjyoti Neog.

When the matter was heard on September 10, the Court expressed that accused persons losing their lives "just like that" is not good for the rule of law. It also conveyed its intention to form a commission and asked the parties to suggest names of retired judges for the purpose.

Case Title: ARIF MD YEASIN JWADDER Versus THE STATE OF ASSAM AND ORS., SLP(Crl) No. 7929/2023