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Gauhati High Court closes PIL against fake encounters by Assam Police

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The Gauhati High Court has observed that pleadings in a petition filed by a qualified legal professional is expected to be of better quality and therefore, the same cannot be treated in equal footing with that of a layman.

The Division Bench of Justice Suman Shyam and Justice Susmita Phukan Khaund closed a Public Interest Litigation (PIL) espousing the cause of people killed or seriously injured in fake encounters by the police.

According to the petitioner, there were more than 80 fake encounters conducted by Assam Police from May 2021 till the date of filing of the writ petition, resulting in the death of 28 accused persons and causing injury to 48. The petitioner has stated the persons who have been killed and / or injured are not dreaded criminals but the police department has adopted the modus operandi of carrying out fake encounters so as to eliminate the accused persons in police custody by making a false allegation that they were trying to snatch service revolvers of police personnel on duty and, therefore, police had to retaliate in self defence.

According to the petitioner, there is no proper inquiry being conducted into any of these incidents of fake encounters and the FIRs that have been lodged in these cases are all against the victims and not police officials guilty. The petitioner has also alleged that even in the magisterial inquiry conducted in some places into the cases of police encounters are in utter violation of guidelines laid down by the Supreme Court in the case of Peoples’ Union for Civil Liberties (PUCL) and another Vs. State of Maharashtra and others reported in (2014) 10 SCC 635.

The petitioner has also filed a separate application with a prayer to direct the authorities to furnish him with the copies of all the relevant FIRs and documents connected with the police encounter cases during the period from May 2021 to January 2022.

At the very outset, the High Court deemed it appropriate to note herein that although the petitioner has claimed to be a permanent resident of Assam, yet, nowhere in the petition has he mentioned his permanent address within the State, nor has he furnished any particulars in support of the said claim. In so far as the credentials of the petitioner is concerned, here also, the Court found do not found any documentary evidence in support of the pleadings. “Be that as it may, considering the nature of issues raised in this PIL, the Court is not inclined to non-suit the petitioner only on such count alone.”

If it is true that the accused persons in police custody were illegally subjected to police actions/encounters then the matter would certainly be of grave concern for the society at large. To that extent, it cannot be denied that proper enquiry, by following the due process of law, would have to be carried out in all such cases so as to unearth the whole truth. However, the issue that would arise for consideration of this court in the present proceeding, at this stage, is as to whether, the petitioner has succeeded in furnishing the necessary foundational facts so as to justify grant of the reliefs as prayed for in the petition, the Court held.

The High Court noted here-in-above, the basic allegation in this PIL is pertaining to the ‘fake encounters’ carried out by the police. The State has not denied the incidents but have taken a pleaded stand that all incidents of police encounters/ police action are being enquired into. The petitioner has also not disputed the fact that enquiries have been conducted into the cases of police action/ encounters but according to him, the enquiry conducted by the State was not as per law and by following the guidelines laid down in the case of PUCL and Another (supra). However, there is nothing on record to substantiate the said assertion.

There are multiple instances of police encounters which have been referred to in this PIL. Consequently, separate enquiry proceedings also appear to have been initiated in all such cases of police action. Materials available on record, more particularly, the statement annexed to the affidavit filed by the respondent No.1 (Assam Government) also goes to show that separate Police Case pertaining to each incident has been registered and in many such cases not only the enquiry report but even charge sheet has been submitted. Since these are individual cases of police action leading to registration of separate cases, it was incumbent upon to petitioner to point out infirmity, if any, in the inquiry conducted in any of those individual cases so as to make out a prima facie case on facts. However, the petitioner has failed to point out any infirmity in the procedure adopted in any of those proceedings on the basis of the materials brought on record. The petitioner has also failed to point out as to which guideline laid down in the case of PUCL and Another (supra) has been violated, in which case and in what manner. Even the instance of failure by the State to take appropriate action in the Nagaon Police action case asserted by the petitioner, as noted above, has turned out to be factually incorrect which is evident from the submission of the learned Advocate General, Assam, which submission the petitioner could not deny. It is no doubt correct that extra-judicial killing through ‘fake encounters’, if any, would be violative of fundamental rights of the citizens guaranteed under the Constitution. However, unless proper foundational facts are brought to the notice of the court, a Public Interest Litigation in such a matter cannot be maintained merely on the basis of some vague and unsubstantiated assertions.

The Court have also noted that there is no averment in the writ petition indicating as to why, the aggrieved parties, who had a right to seek redress under the law, could not approach the court by filing a proper petition prompting the petitioner to file the public interest petition.

Law is well settled that rules of pleading and locus standi would not have strict application in a PIL.

It is also noted by the High Court that the State has not denied the fact that there were in fact incidents of Police encounters resulting into the death and / or grievous injury being caused to persons (accused persons) in police custody during the period projected in the writ petition. As a matter of fact, on 08/20/2022, an affidavit-in-opposition, sworn by the Additional Secretary to the Government of Assam, Home and Political Department, was filed on behalf of the State/respondent no. 1 wherein, it has been categorically admitted that during the period from May, 2021 to 28/01/2022, there were 30 cases of death and 73 cases of injuries that have taken place due to Police action. In the aforesaid affidavit, it has also been mentioned that the department is following the due process established by law as well as the guidelines laid down by the NHRC and that monthly return is also being regularly filed.

In affidavit, it has also been stated that the Government of Assam has already designated 12 (twelve) numbers of Court of the Sessions Judges in the district of Dibrugarh, Jorhat, Nagaon, Tezpur, Dhuburi, Silchar, Tinsukia, North Lakhimpur, Mangaldoi, Goalpara, Nalbari and Bongaigaon as Human Rights Court as per provisions of section 30 of Protection of Human Rights Act, 1993.

On 20/06/2022, another affidavit was filed on behalf of the respondent no. 1 wherein, it was mentioned that after the filing of affidavit on behalf of the State respondents on 08/02/2022, there have been more incidents of deaths/injury of persons due to Police action while in custody. As per record, the number of death has gone up to 51 whereas the number of injuries had climbed to 139 during the period of May, 2021 till 31.05.2022. It has further been stated herein that due to deaths/injuries of persons on account of Police action while they were in police custody, 161 number of cases had been registered in 31 districts of Assam.

From the successive affidavits filed on behalf of the respondent no. 1, the High Court noted that during the period from 01/05/2021 to 30/08/2022, number of persons had lost their lives and/or had suffered grievous injuries in Police action, as a result of which, separate FIRs had been registered. However, there is some explanation in those affidavits as to the circumstances under which the incidents had allegedly occurred. It appears to the Court that the process of enquiry in connection with all these cases of Police action is still under progress. “What would be significant to note herein is that there has been no attempt on the part of the official respondents either to deny the occurrence or to suppress any facts from this Court. As a matter of fact, in the affidavit filed by the respondent no. 1, it has been clearly mentioned that separate FIRs have been registered in all the 171 cases of Police incidents and investigation is going on in all these cases.”

The Advocate General has also assured the court that appropriate action will be taken against all guilty persons including the erring police officials after the inquiry process is completed. Therefore, it cannot be said that no action has been initiated by the State in these cases of police action. Having regard to the facts and circumstances of this case, it appears to the Court that having read some media reports on police actions leading to death/ injury of some accused persons in police custody, the petitioner has rushed to this court by filing the present petition, without properly verifying the complete facts. Under the circumstances, the possibility of the petitioner approaching the Court by way of this petition merely seeking some publicity cannot be entirely ruled out.

Culpable homicide and grievous injury caused to any person are cognizable offences which are punishable under the Indian Penal Code (IPC). Once an FIR is registered and investigation is initiated, law is to take its own course. If the charge is proved, the guilty is punished in accordance with law. In the present case, materials available on record goes to show that FIRs’ have already been registered in respect of all the 171 incidents of police action and investigation is going on. The learned AG, Assam, has also submitted that the guilty will be brought to justice on completion of the process of investigation.

The question of constituting a SIT or handing over the investigation to the CBI would arise only when a proper case is made out on facts to demonstrate that the State Government, in the Home Department or the Police Department has not taken proper action in the matter or that the respondents are not carrying out proper investigation to punish the guilty by following the due process of law or that, there is some deliberate attempt to shield the culprits. There is no such allegation in the petition.

In so far as the fourth prayer in the petition regarding setting up of Human Rights Courts in Assam is concerned, as noticed above, it appears to the High Court from the affidavit filed by the respondent No 1 that 12 (twelve) such courts have already been set up in different districts in Assam. Nothing has been pointed out to convince the court that there was any reluctance on the part of the State to make these courts functional or that the State was not open to setting up more such Human Rights Courts in future, as and when deemed necessary. In view of the above, the Bench is of the view that no further direction in this regard is warranted for the present.

“For the reasons stated here-in-above, we are not inclined to entertain this PIL on the basis of the materials placed before us. It is, however, provided that the respondents shall provide all legally permissible documents to the Writ Petitioner including copies of FIRs/Final Report in connection with all the 171 cases of Police action, if the same is applied for by following the procedure prescribed by law. In doing so, it will be open for the concerned authorities to furnish soft copies of such FIRs/ FRs and/or other legally permissible information/documents to the petitioner, through e-mail, if so desired,” the order reads.

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