HON’BLE MR. JUSTICE BILAL NAZKI HON’BLE MR. JUSTICE L. NARASIMHA REDDY AND HON’BLE DR. JUSTICE G. YETHIRAJULU W.P.Nos. 17750 of 1999, 24874 of 2000, 6276 of 2000, 24937 of 2000, 4808 of 2005, 5428 of 2005, 21264 of 2004 and 11048 of 1998 Dt.13.7.2007 Between: Andhra Pradesh Civil Liberties Committee represented by its General Secretary and others …Petitioners And State of A.P., represented by Secretary Home, and others …Respondents HON’BLE MR. JUSTICE BILAL NAZKI HON’BLE MR. JUSTICE L. NARASIMHA REDDY AND HON’BLE DR. JUSTICE G. YETHIRAJULU W.P.Nos. 17750 of 1999, 24874 of 2000, 6276 of 2000, 24937 of 2000, 4808 of 2005, 5428 of 2005, 21264 of 2004 and 11048 of 1998 COMMON JUDGMENT: (Per Hon’ble Mr. Justice Bilal Nazki) Petitioner in W.P.No. 21264 of 2004 claimed that her son Gera Kishore was killed by police officials after he surrendered to police. It appears that the deceased was shown as an accused in Cr.No. 301 of 2004 of Ongole Tq. Police Station. On 18.8.2004 at about 7.30 P.M. one Garikamukkala Giribabu was hacked to death. At about 8.00 P.M. Deputy Superintendent of Police, Ongole came to the house of petitioner and questioned her about the whereabouts of her son. The Deputy Superintendent of Police told her that her son was suspected of having killed Garikamukkala Giribabu. Thereupon the petitioner consulted her daughter and son-in-law and at about 9.00 P.M. the petitioner’s daughter and son-in-law took Kishore to Ongole Tq. police station. Sub-Inspector of Police, and Circle Inspector of Police were in the police station. In the meantime Deputy Superintendent of Police also came there. The petitioner’s daughter and son-in-law handed over Kishore to police, whereupon the Deputy Superintendent of Police promised that he would be taken to court. On the next morning the petitioner was informed by her neighbours who had seen a programme on TV that her son had been killed and police had claimed that he was killed in an encounter. At about 10.00 A.M. some police men came to her house and asked her to come and identify her son’s dead body. She was taken to Maddipadu police station limits where her son’s body was laid near a teak plantation. The petitioner was surprised to see the dead body of her son at such a place when he had been handed over to the police on the previous day in the police station. The story that was recorded in the records of police was that while a police team under the leadership of 2nd respondent was searching for Kisore in the early hours of 19.8.2004, they saw him near the village of Gajulapalem and he attacked the respondents 2 and 4 with a knife and the 4th respondent- Sub-Inspector of Police opened fire in self defence and killed him. The petitioner filed a complaint stating the facts and specifically mentioned that the respondents 2 and 3 were responsible for the murder of his son. No investigations have been conducted, no statements were recorded, not even the statements of petitioner’s daughter and son-in-law’s were recorded who had claimed that they had handed over Kishore to the police. A case was registered in Cr.No. 79 of 2004 under Section 324, 307 and 100 of IPC against the deceased. In the light of these facts, the petitioner sought directions from this Court that the investigations for a case of murder should be conducted against the respondents 2, 3 and 4 and they should be tried in a court of law. When the matter came up before a Division Bench of this Court, a reference was made to judgment of a Division Bench of this Court in W.P. Nos. 26 and 1229 of 2003. Reference was also made to judgments of Division Benches of this Court reported in K.G. Kannabiran Vs. Chief Secretary [1], and A. Anasuya Vs. S.H.O. [2] . The Court noted that when W.P.Nos. 26 and 1229 of 2003 were decided, other judgments to which reference has been made hereinabove were not brought to its notice. The Court also found that there was cleavage of opinion between the judgments of division benches of the Court referred to above. Therefore the matter was referred to Full Bench. In this way the matter has come before the Full Bench. The question is very short, but is important. If there is an encounter and a police man kills a citizen either in an exchange of fire or in self-defence, whether any case has to be registered for causing the death of citizen. The pattern in Andhra Pradesh which we have seen from various FIRs registered after encounter resulting in death is that an FIR is registered under Section 307 of IPC against the dead person. The learned Advocate General has produced many FIRs which are on file and which show the same pattern that a case is registered under Section 307 of IPC along with some other offences against dead persons, a statement is recorded of a person who makes the report and the matter is closed on the ground that the accused is dead. I have gone through the judgment prepared by my learned brother Justice L. Narasimha Reddy. Since the questions raised in these writ petitions are very important, I thought it appropriate to give a separate opinion. The matter was heard at length and we have heard learned counsel Sri C.Padmanabha Reddy, Sri K.G.Kannabiran, Sri Bojja Tharakam, Sri K.Balagopal and Sri V. Narayana Reddy, senior advocates and learned Advocate General. A separate application being WPMP (SR) No. 98369 of 2006 has also been filed on behalf of Andhra Pradesh Police Officers Association. This application and WPMP (SR) No. 98370 of 2006 are allowed and Sri Altaf Ahmed, learned senior counsel was heard on their behalf by us. Before going to the arguments, it will be appropriate to have a look at the judgments pronounced earlier by this Court. In P. Narayana Swami Vs. S.I. of Police, Adilabad District and others [3] a telegram was sent by petitioner alleging that one Sammireddy A. Srikanth was kidnapped by police and was in police custody. On the same day another telegram was sent to the Chief Justice alleging that in the last week of May police announced that Samireddy (A) Ramakanth and his wife had died in police encounter. But, as a matter of fact, it was alleged that Samireddy was in police custody and somebody else had died in the encounter. Notices were issued and police stated that Samireddy had died in encounter. The Court, while going through the affidavits and counter-affidavits, found that an FIR being Cr.No. 69 of 1996 has been registered in which Samireddy has been shown as accused and Chakrapani, Inspector of Police, Chennur was said to have received bullet injuries, which resulted in his death. Then the Court recorded, “Since Sammireddy is stated to have died on account of receiving bullet injury, it is a case in respect of which a crime had to be registered and investigation of his death taken up as a case of culpable homicide. It is true that a case has been registered relating to the death of the police personnel where the death of Sammireddy may also be gone into. But considering the fact that the proper facts are not forthcoming and that more than two months have elapsed, as also the fact that Sammireddy died on account of bullet injury received at his back, we deem it proper that a separate crime should be registered in respect of his death and the matter should be investigated by an independent agency as to whether actually there was an encounter death of Sammireddy.” Coming to the judgment reported in A. Anasuya Vs. S.H.O. (2nd supra), in this case writ petitioners sought directions to the State of Andhra Pradesh to get the matter investigated by an independent agency in terms of the directions issued by the National Human Rights Commission as contained in its letter dated 29.3.1997 addressed to the Chief Minister of the State of Andhra Pradesh. The Court took note of two things, viz., (1) that the matter was pending investigation before the National Human Rights Commission: and (2) that the National Human Rights Commission addressed a letter dt. 29.3.1997 to the Chief Minister. Having taken note of these facts, the Court noted, “Having heard the learned counsel for the parties, we are of the opinion that in the facts and circumstances of this case it is desirable that the State Government implements the aforementioned letter dated 29.3.1997, as modified by the National Human Rights Commission. As we do not find any reason as to why the procedure prescribed by the National Human Rights Commission should not be adopted by the State, particularly when the recommendations of the National Human Rights Commission, as modified by the Human Rights Commission, had been accepted by the State. There cannot be any doubt whatsoever that the aforementioned letter dated 29.3.1997 being general in nature, the same would be subject to any other or further directions that might be issued by the National Human Rights Commission in a particular case and in the event of any such specific direction/instruction being issued in the instant case, the same should be complied with.” We will deal with the letter of the Human Rights Commission at a later stage, but from this judgment it appears that the Court did not decide the questions which have fallen for consideration presently. Then coming to judgment of this Court reported in K.G. Kannabiran Vs. Chief Secretary (1st supra), this judgment is an important judgment as it considered the questions specifically which have again fallen for consideration in the present case. Therefore, the fact situation in which the writ petition was decided by a Division Bench of this Court needs to be mentioned somewhat in detail. Sri K.G. Kannabiran, a senior advocate of the Court and president of the Peoples’ Union for Civil Liberties made a mention before the Chief Justice’s Court on 27.7.1995 and referred to a news item which appeared on that day in a newspaper. This newspaper reported that an unidentified Peoples’ War Group Naxalite was shot dead by the police in an alleged encounter near Ashoknagar under Musheerabad police limits late on Wednesday night i.e., 26/27 July night. Sri Kannabiran had contended before the Court that he had information that one T. Madhusudhanraj Yadav, a trade union leader was reportedly missing. Because of reported alleged encounter, he sought intervention of the Court to enable Yadav’s wife and other family members to identify the body of the alleged unidentified Peoples’ War Group Naxalite. The body of the alleged Naxalite was reportedly in the mortuary of Gandhi Medical Hospital, Secunderabad. The Court gave directions on the mention of the Advocate and allowed Smt. Swarna and Sri T. Neelakantha Raj Yadav, the wife and father of T. Madhusudhanraj Yadav to see the dead body. It also directed the Superintendent, Gandhi Medical Hospital, Secunderabad to keep the dead body of the alleged naxalite in the mortuary and not to permit any one to remove the body from the mortuary till further orders of the Court. It also allowed Sri K.G.Kannabiran, Advocate to accompany Smt. Swarna and Sri T. Neelakantha Raj Yadav at the time of identification of the dead body. In pursuance of the order of the Court, the dead body was identified as the body of T. Madhusudhanraj Yadav. Thereafter the learned Advocate made a regular and formal application and sought directions of the Court to direct the Sessions Judge to start enquiry into the killing of T. Madhusudhanraj Yadav so that a report could be submitted to the Court. He also sought directions to the Government to notify the Sessions Judges as Human Rights Courts to take cognizance of all cases of human rights violations as provided under Section 30 of the Protection of Human Rights Act. He also sought a direction to the Director General of Police, Government of Andhra Pradesh to cause production of four persons. Certain directions were given by the Court on 28.7.1995. An affidavit was sought from the State. On behalf of Director General of Police, Andhra Pradesh, Inspector General of Police, Law & Order, Andhra Pradesh filed an affidavit who stated that he had gone through the records relating to Cr.No. 150 of 1995 under Section 307 IPC and 25 and 27 I.A. Act of P.S. Musheerabad and Cr.Nos. 121 of 1988 under Sections 148 and 307 r/w. 149 IPC and some other provisions of law and details of some other FIRs were also given. About the deceased T. Madhusudanraj Yadav, it was mentioned in the counter, “Late Sri T. Madhusudhanraj Yadav, Sri Kurpati Lingamurthy and Sri Vinod of the State Committee are reportedly procuring arms and ammunition including AK-47 from various sources for their armed squads. Deceased T. Madhusudanraj Yadav was the Provincial Committee Secretary of this group since 1988. Warangal district in general and Mulug, Parkal, Eturnagaram, Bhupalpalli and Narsampet areas in particular have been facing the brunt of CPI-ML Pratigatana violence in the form of murders, arson, extortion and coercion.” The police claimed in the FIR, which reads as under, “I, D. Venkata Narsaiah, am working as SI of Police, L & O at P.S. Mills Colony of Warangal Town of Warangal District. The Panibagchi group of CPI-ML is involved in several cases of murders and other cases in o u r Warangal district through its well organized armed dalams. One Kurapati Lingamurthy a resident of Kasibugga area of Warangal Town is the provincial committee member of the said organization and he is a wanted extremist. Today we received specific information about the presence of Lingamurthy in Hyderabad city. Hence a special party of our police personnel came to Hyderabad and found the said Lingamurthy near Ashoknagar area in the afternoon. Immediately he was apprehended and on questioning he disclosed that T. Madhusudhanraj Yadav State Secretary of the said group would visit his house to-night to handover him some arms and ammunition in order to dispatch the same to their dalams. As T. Madhusudanraj Yadav is a wanted extremist leader I along with ARPC 1862 Yadagiri went to Lingamurthy’s house and was lying in wait. At about 8.45 P.M. T. Madhusudhanraj Yadav entered Lingamurthy’s house with a bag in his hand. We disclosed our identity and tried to apprehend him. He dropped the bag grappled with us, wriggled away, took out his revolver and fired at us with an intention to kill us. In self- defence we also returned the fire resulting in his instantaneous death. In the scuffle our PC also received injuries. The bag of T. Madhusudhanraj Yadav contains live ammunition of various caliber. Hence you are requested to take necessary action.” This is the report on which a case was registered against the deceased and no case was registered against the police. Then the learned Judges of the Court went into examining the various provisions of the Code of Criminal Procedure which was termed by the Bench as the hand book for the police to act and arrest any person, investigate the crime and book criminals and then it noted, “Proceeding on the assumption that the officers who decided to lie in wait to apprehend the deceased T. Madhusudhanraj Yadav had some sort of authority to arrest him and assuming in favour of the respondents that they had justification to apprehend him as it was necessary for the maintenance of law and order in the district Warangal, we notice, however, that T. Madhusudhanraj Yadav has met his death at their hands and the only report about his death is the one recorded as Crime No. 150 of 1995 of Musheerabad police station. According to the First Information Report, it was he who committed the offence of interfering with the discharge of duty of the informant and others who had come to arrest him. He allegedly grappled with them, wriggled away, took out his revolver and fired at them with the intention to kill them and in self- defence they returned the fire resulting in his instantaneous death. In the scuffle one constable received injuries. In all these T. Madhusudhanraj Yadav received several bullet injuries and one constable received some injury obviously not caused by a fire-arm. Do we have the law that a group of police personnel will report that they were making arrest of a person who attempted to evade the arrest and since in his attempt to evade the arrest he used force, they returned the force and caused his death and the law would accept the statement and sanctify the end of a life in accordance with the procedure prescribed by law? We have already noticed the guarantee under Article 21 of the Constitution of India and also that the words “procedure established by law” are not ineffective and lifeless but are expressions of the faith of the people who have sanctioned interference with the life of a person only by a procedure which is reasonable, fair and just. Indian Penal Code has defined ‘culpable homicide’ as follows: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” It is difficult even to imagine that police officers who used fire-arm to hit at the body of T. Madhusudhanraj Yadav were not aware that by such act they were likely to cause his death. Of course, what they did had a justification or not and, although falling within the definition of an offence, the act by them is excusable or not are matters which shall be dealt with but only when the truth or otherwise of their plea is tested in accordance with law. It will neither be correct nor proper at the outset to ignore altogether the act of the commission of the offence and not to register a case at all of a homicide at the hands of the police personnel who allegedly fired at T. Madhusudhanraj Yadav. We have given our anxious consideration to the matter before us and we see good reasons to hold at this stage that on the statement of the same very police personnel who have alleged that T. Madhusudhanraj Yadav fired at them, but caused no injury by the fire-arm, and that they fired at him and as a result, T. Madhusudhanraj Yadav got fatal injuries, a case should have been registered and investigated in accordance with law by the competent authorities.” Then comes the other judgment of this Court which is unreported judgment in WP Nos. 26 and 1229 of 2003 again by a Division Bench of this Court. The facts were almost similar. Nine cases were brought to the notice of the Court by the writ petitions and even according to the State, out of said nine cases, in six cases deceased persons were in police custody and police had claimed that they were killed in exchange of fire while they were trying to escape from the police custody by snatching the weapons from the police. The police officers who were responsible for the death of these persons gave complaints to the local police and a crime was registered against the deceased persons under Section 307 of IPC. The Court framed the question which fell for its consideration in the following terms, “Thus, the whole lis revolves around whether the criminal prosecution should be initiated against the police, who participated in the encounter by registering a case under Sections 302 and 201 IPC and whether the practice followed by the police in registering a case under Section 307 IPC against the deceased persons is correct? This question was answered in the following terms, “Simply because FIR is lodged at the behest of the police with respect to an incident resulting in the killing of a person in self-defence attributing to the deceased alleging that the deceased had attempted to murder them, it cannot be said to be a procedure not contemplated under the Cr.P.C. or is unknown to the criminal jurisprudence as argued by the learned counsel for the petitioner.” It also added, “Even in the case when FIR has been registered on the information of police, law nowhere prohibits from proceeding against the member of police party in case during investigation sufficient evidence is available that the person killed had not tried to murder the member of the police party and allegations of self-defence are fake.” To the same effect, another judgment was given by the same Bench in WP No.1038 of 2003. These judgments were mentioned to see as to what was the cleavage of opinion between various judgments of this Court. The main thrust of the arguments of the petitioner is that right to life is guaranteed under Article 21 of the Constitution of India and cannot be taken away except through due process of law and police is not empowered to take away the life of any citizen. The second limb of the same argument is that if death is caused of a citizen as a result of encounter where police used force in its self-defence, the incident has to be registered and investigated as a homicide and whether the death was caused in self-defence or not is a matter which has to be decided by the courts. The police cannot kill a person and hold on its own that the death was caused in self-defence. Registration of a case against dead person under Section 307 of IPC was a fraud on the rule of law. A case has to be registered for homicide and whether such homicide was caused by a police officer in his self- defence or not has to be investigated. On the other hand, the arguments of the learned counsel for the respondents is that it is the duty of the police to protect the life and property of the citizens and in the process the police is empowered to use force as and when necessary and if during the process of administering law in order to keep the order any death is caused it cannot be termed as homicide. Sri Altaf Ahmed, senior advocate appearing on behalf of A.P. Police Officers Association has also submitted arguments to which we will give our attention after going through various provisions of Code of Criminal Procedure. It is an admitted fact that whatever powers the police may claim to exercise must be found in a statute and we have not been shown by the learned Advocate General or Sri Altaf Ahmed any powers other than the powers conferred on it by the Code of Criminal Procedure with regard to the arrest, investigation and allied matters. The powers with regard to the present controversy can be traced to Chapter XII of the Code of Criminal Procedure (for short “the Code”). The Chapter XII relates to information to the police and their powers to investigate. Section 154 (1) and (3) is reproduced below for ready reference, “154 Information in cognizable cases (1) Every information relating to the commission of a cognizable offence, if given 'orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. …….. (3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses