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In The Line Of Fire

In The Line Of Fire

Author: Maxwell Pereira
Publication: The Times of India
Date: March 23, 2009

Introduction: Police can't combat violent forces with hands tied

In Andhra Pradesh where Naxal activities and encounter deaths are rampant, a three-judge bench of the local high court clarified on July 13, 2007, that it is not mandatory for the police to register a case of murder when there is an encounter killing. This it did while disposing of a batch of writ petitions.

On February 6, 2009, a five-judge bench of the same court ruled it mandatory for the police to register an FIR whenever an encounter death took place. This was hailed as a landmark judgment by human rights organisations claiming it would end the practice of the police closing encounter cases on the plea of self-defence. Lawenforcement authorities, however, found the judgment disturbing. In these times of terrorism, it exposed policemen to legal consequences, inhibiting best action to tackle the threat. In a major relief to the police, the Supreme Court on March 4 put a stay on this adversely impacting ruling on encounters, following an appeal by the Andhra Pradesh Police Officers' Association.

The HC judgment - whose operative part does not use the term 'police encounter', fake or genuine -mandated compulsory registration of an FIR under Section 154 of the Criminal Procedure Code (CrPC) for a murder case wherever a police officer causes death, acting or purporting to act in discharge of official duties or in self-defence. It directs that such a case be investigated like any other offence. Even if the investigating officer's final report under Section 173, CrPC, concludes that no case is made out, the magistrate is to critically examine the evidence and take cognizance if necessary.

There are far-reaching and serious consequences for uninhibited police action in extremist-infested areas spread across many states. Legal pundits are unanimous on several points. One, the law of private defence stands abrogated, and all Indian Penal Code provisions concerning right of self-defence become obsolete and nullified. Two, registration of FIRs against police officers is mandatory for death caused even during discharge of official duties, including encounters.

Three, police officers involved in thwarting the 2001 attack on Parliament and all National Security Guard
(NSG) commandos who killed terrorists involved in the 26/11 Mumbai attacks could now face murder trials -
as also other police officers and army and navy personnel including the NSG chief, Mumbai police commissioner and army area commander who extended protection or guided them during the operation. Perhaps the entire home ministry, state and central, and all police chiefs can also figure as accessories to a large criminal conspiracy and face the same murder trial as conspirators. Four, this ruling could apply to other parts of India via other court judgments. Five, there could be confusion among field formations handling tough situations.

Six, it would be prudent for state police forces to disarm personnel, withdrawing all arms and ammunition considered a must in their operations. Seven, it could lead central forces like the CRPF to request the Centre against deployment for internal security duties in states faced with violence, riots and insurgency, and/or anti-terrorist duties or situations warranting use of firearms. Eight, because this judgment is to be implemented retrospectively, murder cases could even be registered for past police actions resulting in death. That means the prospect of cases being slapped on some of us retired policemen who supervised officers in encounter cases at some stage or the other.

Further, the next time a terrorist fires at a police officer, it would be advisable for the latter to either get killed or run from the scene and face charges of cowardice and dereliction of duty. Else, he would face a murder case for killing the terrorist.

It is a sad commentary that judicial pronouncements of late provide ample ground for criticism and debate. But didn't an eminent judicial personality observe, "Justice is not a cloistered virtue... it should allow the winds of criticism to blow about it"? So maybe there should be wider debate on this vital issue.

The police now feel stifled to effectively perform their statutory duties and assigned tasks, as forces in armed combat cannot function with the prospect of a murder charge hovering over them thanks to impractical or unrealistic judicial pronouncements. The morale for those facing bullets is hit. Courtroom logic does not cut ice for the underpaid, overworked jawan risking life and livelihood for lofty ideals. He cannot perform if he is not guaranteed security from prosecution for genuine exchanges of fire.

Human rights are sacrosanct. No one advocates fake killings, be it of innocents or criminals. Any operation's ultimate mission is to defend integrity and democratic sovereignty, not to destroy them. But the life and security of the forces fighting this battle must be paramount. The country, its citizens and the courts need to be sensitive to extraordinary situations where the person in uniform is still a human being with same rights as other citizens, with some distinction made between he who fights for and he who fights against the nation. If the state perceives a threat from armed extremists and terrorists and feels the police should be armed, then legal safeguards have to be provided so that the courts do not throw the baby out with the bathwater.

- The writer is a former joint commissioner of police, Delhi.

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