Back
2009 (1) ALT 754 (L.B.)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDEABAD
GODA RAGHURAM, V.V.S. RAO, R. SUBHASH REDDY, RAMESH RANGANATHAN AND G. BHA V ANI PRASAD, JJ.
A.P. Civil Liberties Committee - Appellant
Vs.
Government of A.P. — Respondent
Writ Petition Nos. 15419 of 2006, 26358 of 1999
Decided on : 6-2-2009
b) CRIMINAL PROCEDURE CODE, 1973, Sections 174 to 176 and Secs.154 (1),156 and 157 :- In all cases of police encounters and deaths resulting there from, the current practice of closing the file with a magistrarial inquiry under Section 174 to 176 in the place of registering an FIR under Section 154 and the subsequent investigation and prosecution under judicial control is held unconstitutional.- It was held that that police reports under Section 174 to 176 is not sufficient compliance of law. It was also held that the Judicial Magistrate is not bound by the such police reports under Section 174 and is bound to proceed independently. Guidelines also laid down for the magistrate while proceeding the inquest reports under Section 174 to 176
c) CONSTITUTION OF INDIA, Article 226 - Death of civilians in the police encounters.- Abstract submissions made on behalf of the State with regard to recurrent violence by Maoist!Naxalites, subversion of law and order and challenge to equilibrium of civil society constituting grave crisis and challenge to sovereign, authority of State and legitimate executive action dealt with.
d) CRIMINAL PROCEDURE CODE, 1973, Sec.154(1), Secs.129 to 132 (Maintenance 157 of public order and tranquility), Sections 149 and 152 (Preventive action of police), Section 151 (arrest without warrant), Section 46 (power to arrest a person using force including causing his death) - Indian Penal Code, 1860, Section 6 and General exceptions set out in Sections 96 to 106 (right of private defence): By virtue of Section 6, whenever a person accused of a cognizable offence claims any of the defences under the General Exceptions set out in Section 96 to 106, the station house officer, magistrate or the court of trial shall accord the accused the benefit of the appropriate General Exception even though such exception is not specifically indicated in the description of the offence elsewhere in the IPC. The apprehensions of A.P. Police Officers Association regarding registration of a case against police officers involved in encounter falling under General exceptions contending that would result in destabilizing equilibrium and would be productive of immense and avoidable public mischief are misplaced. The power to arrest under Section 46 does not extend to taking away the life of an accused who attempts to escape.- The power to arrest is also vested on civilians and if the police officers plea is accepted
e) INDIAN PENAL CODE, 1860, Sections 96 to 106 - Criminal Procedure Code, 1973, Section 154 (1)- Deaths arising out of Police encounters - Police raising the plea of self defence.- This doctrine of proportionality overarches the entire spectrum of the right of private defence and in each such case shall satisfy the judicial forum of the existence of such private defence. Plea of exercise of right of private defence made by police officer while giving information to Officer in-charge of police station about death of civilians in exchange of firing in police encounter, cannot be presumed and considered at the time of registering crime. The plea should be examined by the appropriate legal court after registration and investigation of each.
f) CRIMINAL PROCEDURE CODE, 1973, Section 46 :- The power of arresting a person does not extend to authorizing the detaining authority to cause death of the person accused.
g) CRIMINAL PROCEDURE CODE, 1973,_ Section 154 (1)- A.P. Police Standing Orders, S.O; 416 (8) - Registration of two FIRs - Permissibility - While recording two FIRs. - When there are rival versions in respect of same case, information must take the shape of two different FIRs and investigation be made in respect of both the cases.
h) CRIMINAL PROCEDURE CODE, 1973, Sections 190 (1)(a), 156 (3), 200 to 203-
Where private complaints is made against the police officer with regards to the deaths arising out of police encounters, the Magistrate may independently enquire or refer the matter to the police under Section 156(3) - From the material available before him the Magistrate close the case under Secion 202 or if satisfied as to commission of an offence during the police encounter refer the case to a court of sessions. - The police officers have no locus standi to be heard during these pre-committal proceedings.
i) NAXALITE MOVEMENT - Political violence and Police in India - Brutal repression of naxalite movement is no answer to curb it.- Political violence must be met with political action, but not police repression
Competing interpretations of recurrent.
contemporaneous events:
Since the inception of the naxalite movement in Andhra Pradesh in 1969, 551 police personnel were killed including one DIG, two S.Ps, five D.S.Ps; 16 Inspectors and 49 Sub-Inspectors. 2928 civilians were killed; public and private property - worth hundred of crores of rupees was destroyed; the extremist groups indulged in mindless violence and committed brutal murders. The naxal violence increased since 1991. They deliberately ambush and attack police with sophisticated firearms and explosives. In order to create terror the Maoists are also targeting functionaries of ruling political parties and killing them brutally - (counter affidavit of the Director General of Police in W.P.No. 15419/06 including Annexures 2 and 7)
2. The State Executive for the first time started extra-legal killing which is popularly known as Encounter since 1968 and as on today in the name of alleged encounter the State has snatched away lives of about 4000 people during the last four decades -; (written submissions dated 4.3.2008 of Mr. V.Raghunath, Advocate for APCLC, in W.P.Nos. 7906/2000, 14475/02 and 440/03)
3. The lesson for the MHA (Ministry of Home Affairs) is thus clear: it should advise state governments that brutal repression is no answer to the Naxalite movement; that the Naxalite ideology must be fought politically; that Naxalite criminal actions must be dealt with under the existing criminal and human rights laws; and that Naxalite social base, which springs from exploitation, inequality and injustice must be countered by purposeful political and administrative action to implement the promises made in the Preamble and the Directive Principles of State Policy of the Constitution. Police repression is attractive and easy to adopt by a government armed to the teeth with paramilitary forces, equipment, firepower and mobility! However, police repression only goes to strengthen the Maoist thesis on the class character of the Indian State. It is counter-productive and helps to increase the mass base of the Naxalites, which arises out of the failure of the State to deliver the developmental goods as mandated by the Constitution - Political Violence and the Police in Indial.
4. Steven Pinker observes: The most important and under appreciated trend in the history of our species: is the decline of violence. Cruelty as popular entertainment, human sacrifice to indulge superstition, slavery as a labor-saving device, genocide for convenience, torture and mutilation as routine forms of punishment, execution for trivial crimes and misdemeanors, assassination as a means of political succession, pogroms as an outlet for frustration, and homicide as the major means of conflict resolution - all were unexceptional features of life for most of human history.
Yet today they are statistically rare in the West, less common elsewhere than they used to be, and widely condemned when they do occur. 2
5. According to the eminent historian Eric Hobsbawm: The twentieth century was the most murderous in recorded history. The total number of deaths caused by or associated with its wars is estimated at 187 million, the equivalent of more than 10 percent of the world's population in 1913. - At the start of the twenty-first century we find ourselves in a world where armed operations are no longer essentially in the hands of governments or their authorized agents, and where the contending parties have no common characteristics, status or objectives, except the willingness to use violence. 3
6. State action against terrorism (including the domestic variety), blurs legal, moral and ethical definitions of appropriate substantive and procedural rules of peacetime law enforcement engagement under constitutional norms of governance on the one hand; and war on the other. War is also a species of conflict; it is supposed to take place primarily between sovereign states or, if they occurred within the
gpt-4
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
