Having read the well-written judgment by the AP High Court in the police encounter case, I am more than convinced that its order is unexceptionable. Its order can be summarised thus:
Every time a person is killed by a police officer,
1. If a complaint is made, an FIR must be registered. Judicial precedence is clear that police do not have a discretion not to register an FIR. The FIR's sincerity, veracity etc cannot be determined at the registration stage. Also, it is not necessary for the FIR to name the officers involved.
2. Once an FIR is registered, an investigation must be launched. The investigation may conclude that (a) no killing took place, or (b) that the killing was excused as an exercise of one's right to private defense, or (c) that the killing was not excused and therefore illegal.
3. The Judicial Magistrate is not bound to agree with an investigation report which concludes that the killing took place in course of the exercise of the right to private defense. The judicial discretion must be exercised independently and if the Magistrate thinks that this is not conclusively proven, she can take cognizance under section 190 fo the Code of Criminal Procedure.
This is regular criminal law, and one is suprised that it took a High Court ruling 60 years after independence to suggest that it applies with all its force to all citizens, police officers or otherwise. Which is why the Supreme Court's interim stay on the order is surprising. Mr. Salve, arguing for the stay, reportedly told the court that “If this is implemented, FIRs and cases would be filed against policemen who killed terrorists in Parliament attack case or the Mumbai Terror attack.” Responding to the argument as reported in the newspaper, one can argue thus:
1. Yes, an FIR will be registered if a complaint is made. Law is clear on FIRs - it does not suggest anything regarding veracity, even entirely made-up complaints must be registered.
2. An investigation must be launched in furtherance of an FIR - it will probably conclude, given the circumstances of the Mumbai attack, that the killing was done in exercise of the right to private defense.
3. The report will be submitted to the Magistrate, who, in all likelihood will conclude that the findings of the report are true and that she should not take cognizance. The AP HC judgment is clear that the Magistrate is not bound to take cognizance - there is discretion under section 190 of the Criminal Procedure Code. This obstacle involving the judicial application of mind should be enough to calm any fears that the AP judgment has done anything extraordinary.
4. In any case, any cognizance of a case against a public servant, including a police officer, cannot take place without the prior consent of the government, under sections 132 and 197 of the Criminal Procedure Code. This added Executive filter is wholly unnecessary and is often abused. But it should remove all doubt that the AP HC judgment is open to misuse. [Readers might be interested in Mihir Desai's recent article in the EPW in this regard.]
For a contrary perspective, see Venkataramana's article (hat tip to Venkatesan). The argument is that 'A better alternative to this total distrust of the police force could be to appoint a judicial magistrate and arrange for a television crew team to accompany the police when it controls the mob, faces the extremists or confronts the terrorist. Only then will the judicial magistrate or judge be able to consider the circumstances of the incident. No court can assess the incident on the basis of a reported description of the event. With respect, the ruling of the Andhra Pradesh High Court is completely impractical. '
This is a serious issue, and calls into question the entire basis of the criminal justice system which can only revisit past events through witnesses and other evidence. Presumably, these reported accounts are incapable of capturing what really happened not just in encounter cases but in every area of criminal activity. I am not dismissing the argument, only suggesting that if true, it calls for an overhaul of the Evidence Act, rather than merely create exceptions for police from the criminal justice system.