PIL To Probe 'Fake' Encounters | 'Investigation Against Officers Would Demoralise Them', Says Assam Police; Supreme Court Reserves Judgment

The Supreme Court today reserved orders on a plea alleging rampant "fake" encounters in Assam as well as non-compliance by state authorities with the directions issued in PUCL v. State of Maharashtra (pertaining to investigation of police encounters).

A bench of Justices Kant and N Kotiswar Singh heard the matter.

Briefly put, the petition before the Supreme Court impugned a Gauhati High Court order, whereby the petitioner's PIL raising the same issue was dismissed, as the High Court was of the view that no separate probe into the alleged incidents was required because state authorities were conducting investigation in each case.

Advocate Prashant Bhushan appeared for the petitioner and argued that in Assam, there has been rampant violation over the past few years with the guidelines laid down in PUCL v. State of Maharashtra, where the top Court directed inter-alia:

"(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter)...

(4) A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code."

He pointed out that in the PUCL judgment, the guidelines were also made applicable to grievous injury cases in police encounters "as far as possible" and argued that the intent behind the PUCL guidelines was that an FIR be registered and independent investigation conducted on the premise that the accused police officials may have done something wrong. However in many Assam cases, FIRs were registered against the victims, Bhushan said.

He further mentioned that when the matter was pending before the High Court, apart from death cases, there were as many as 135 encounter cases involving bullet injuries. Assailing the fact that there has not been an independent investigation into the allegations, Bhushan informed that the National Human Rights Commission forwarded the matter to Assam Human Rights Commission and the AHRC refused to got into it as the matter was pending before High Court.

Subsequently, he cited specific incidents through affidavits filed by alleged victims of encounters and proposed setting up of an independent investigating committee headed by a retired judge to give a preliminary report. In the context of Tinsukia encounter case, when he referred to bullet injuries received by one of the victims, Justice Kant enquired if there was any medical report qua the bullet injury. In reply, Bhushan informed that the bullet injury was admitted, however, the case of the state authorities was that the person was trying to run away and therefore he was shot (to subdue him).

Solicitor General Tushar Mehta, on the other hand, asserted that the PUCL guidelines were binding and stood complied to the teeth. Questioning the motives behind filing of the present petition, he claimed that an investigation as sought by the petitioner would demoralize the security personnel, who put their lives at stake to safeguard the nation from terrorist attacks and militancy (which are more rampant in Assam).

The SG alleged that without giving any facts, and based only on judicial precedents, the petitioner filed the petition seeking inter-alia directions for registration of FIRs in 'fake' encounter cases against police personnel. "Sitting in Saket Courts in Delhi, he declares the encounters to be fake encounters...he presumes there is no FIR...only police is [sought] to be targeted by the Court's direction" the SG emphasized.

Referring to certain data, he mentioned that between 1991-2024, 412 Assam police personnel and 449 central personnel were martyred because of terrorist activities. To showcase the difficulties faced by the personnel, the SG further pointed out the number of terrorists who have surrendered over the past few years and the kind of weapons recovered from militants. "We have a public spirited man telling the High Court that all encounters are fake encounters and demoralize the police by directing an investigation", he commented.

Further, the SG disputed Bhushan's contention that the idea behind PUCL guidelines is that police officials are to be arrayed as accused. It is the alleged incident that is to be investigated, he asserted. "It nowhere says that whenever there is a clash between the terrorist/criminal gang and the police, the police will have to be necessarily be an accused. If that is the law, nobody will be able to protect the citizens of this country. If I as a police officer feel that if I fire a bullet, then I will be the accused next day, I will choose not to fire the bullet. And that probably is the purpose of this petition!", the SG exclaimed.

Concurring with the SG that the PUCL guidelines require investigation of the "incident" and not necessarily the "police officers", Justice Kant said, "It's kind of an impartial arbiter who will look into both the versions...and suppose he finds that it's a case of excesses committed by the police, the recourse under Section 157 CrPC will be...if it is found there was a terrorist attack...and firing took place, then it would be against those suspects and report will go against them".

Taking the Court through the guidelines in the PUCL judgment, the SG also contended that the locus to dispute conclusion of an investigation and/or non-compliance with guidelines is with the victims' families. When such a complaint is filed, it is then upto the discretion of the concerned Sessions Court whether to direct further investigation etc.

Placing an up-to-date chart before it, the SG further apprised the Court about the status of investigation in the cases of encounter killings. He asserted that in terms of PUCL guidelines, Magisterial enquiries were conducted and the incidents probed by police stations other than to which the officers involved in encounter killings belonged. Subsequently, the SG cited judicial precedents to show how courts have dealt with similar Article 32 petitions and argued that after a chargesheet is filed, only the court before which the same is filed shall continue to monitor.

The SG also highlighted the observations made by the High Court in the impugned order, where it noted that the petitioner made vague, omnibus allegations of non-compliance with PUCL guidelines without furnishing any material facts. He further stressed on the High Court observation that separate FIRs have been registered in all 171 cases of police incidents and the possibility of petitioner having approached the Court only on the basis of certain media reports, to seek publicity, could not be ruled out.

At the same time, however, the SG objected to the High Court permitting supply of copy of FIRs registered (and other legally permissible documents) to the petitioner. The said direction should not have been passed, as the petitioner is no one to monitor the state's investigation, he said.

"If they (police personnel) are guilty, they must be punished. But if they are not guilty, then the state must protect them. Because the state has a particular geopolitical position...we have terrorism problem...as a nation, we cannot permit our security forces to be demoralized at the behest of somebody...we do not know at whose behest he is filing the petition."

In rejoinder, Bhushan urged the Court to ask the respondents to furnish the chargesheets that were claimed to have been filed in the alleged cases, saying they would reveal what was investigated - the allegation of fake encounter or the allegation of the victim being a militant, etc. At this point, Justice Kant enquired about any incident where the victim's family has come forward to protest against the chargesheet filed. However, Bhushan answered that he was not aware of the same and urged that the victims' families are already scared.

Responding to the SG's claim of increased militancy in Assam and an investigation demoralizing security personnel, Bhushan posed, "why will an investigation demoralize an honest office who has done his job honestly?" On a specific Court query, he further sought time to file an affidavit regarding information received through 44 FIRs supplied to the petitioner (pursuant to the High Court direction).

After hearing the counsels, the bench reserved the orders, giving liberty to file any relevant information and submissions within a week.

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.

In October, the top Court called for data (in the context of Assam) regarding enquiry, if any, initiated by the Assam Human Rights Commission into cases where allegations of 'fake' encounter were levelled. It also stressed on the need for Human Rights Commissions to act pro-actively in civil liberty matters.

Earlier this month, the Court indicated that the only issue to be considered in the case was whether the guidelines in PUCL v. State of Maharashtra were complied with or not.

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