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Supreme Court of India
Arif Md Yeasin Jwadder vs The State Of Assam on 28 May, 2025
Author: Surya Kant
Bench: Surya Kant
2025 INSC 785
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. __________ OF 2025
(Arising out of SLP (Crl.) No. 7929 OF 2023)
Arif Md. Yeasin Jwadder … Appellant
Versus
State of Assam and Ors. … Respondents
JUDGMENT
SURYA KANT, J.
Leave granted.
2. The instant matter arises from a series of encounters reported in
the State of Assam (Respondent No. 1), the authenticity of which
has been called into question on various counts. At the heart of
these proceedings lie concerns that straddle the delicate boundary
between the imperatives of law enforcement and the inviolable
guarantees of life and personal liberty enshrined in our
Constitution.
3. This appeal is directed against the judgment dated 27.01.2023
Signature Not Verified
Digitally signed by
ARJUN BISHT
(Impugned Judgment), whereby the High Court of Gauhati (High
Date: 2025.05.28
16:49:38 IST
Reason:
Court) dismissed PIL No. 86/2021, inter alia seeking: (i) records of
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all alleged fake encounters in the State of Assam, (ii) registration ofFIR against the erring police officials and (iii) independent
investigation against such officials in compliance with the
guidelines laid down by this Court in People’s Union for Civil
Liberties & Anr. v. State of Maharashtra & Ors.1 The petition
was dismissed by the High Court, holding that the PIL was
premature and the documents placed on record only made out
vague assertions. Nevertheless, the High Court directed that the
Appellant shall be provided all legally permissible documents in
connection with all such cases, if so applied.
4. The Appellant is before us asserting that no meaningful or effective
inquiry has been undertaken in respect of these cases and the
guidelines laid down in PUCL (supra) has been flouted blatantly.
A. FACTUAL BACKGROUND
5. Before adverting to the issues and contentions raised by the
parties, we deem it appropriate to narrate the factual background
leading to the instant appeal briefly.
5.1. The Appellant in the Writ Petition filed before the High Court alleged
that as many as 80 fake encounters took place in the State of
Assam between May, 2021 and December, 2021. According to him,
1
People’s Union for Civil Liberties & Anr. v. State of Maharashtra & Ors, (2014) 10 SCC 635.
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28 persons were killed and 48 were left injured, during these
encounters. It was further alleged that police authorities have
justified these actions on the basis that escape attempts from the
accused persons prompted them to open fire in purported self-
defence, resulting in death or injury.
5.2. Alarmed by the growing incidence of police encounters, the
Appellant firstly addressed a complaint on 10.07.2021 to the
National Human Rights Commission (NHRC), Respondent No. 4
herein. The Appellant beseeched the NHRC about the multiple
incidents of police encounters and requested to take cognizance of
the matter. Shortly thereafter, on 12.07.2021, the Assam Human
Rights Commission (AHRC), Respondent No. 5 herein, also sent a
suo-moto notice to the Government of Assam and sought a report.
It appears from the records that AHRC had already taken notice of
the issue pertaining to increasing incidents of encounters on
07.07.2021, i.e., prior to the complaint addressed by the Appellant
to the NHRC.
5.3. The NHRC on 29.11.2021, transferred the Appellant’s complaint to
the AHRC on the premise that the latter had already taken note of
the issue. Not long after, on 20.12.2021, the Appellant filed the
aforestated PIL Petition before the High Court, raising the issue of
the alleged fake encounters. It may be apposite to add here that
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during the pendency of the proceedings before the High Court, the
full bench of the AHRC on 12.01.2022, disposed of the matter
before it on the ground that the subject matter was pending
adjudication before the High Court and Regulation 7(XII) of the
AHRC (Procedure) Regulations, 2001 do not permit entertaining
of complaints that are sub-judice before any other Court/Tribunal.
5.4. The Appellant moved an application in the PIL proceedings seeking
copies of the FIRs registered pursuant to these police encounters.
The High Court granted him liberty to apply to the Prosecuting
Inspectors of each district in the State of Assam for accessing the
same. He consequently applied to the concerned authorities. The
Appellant appears to have maintained that there were 101 known
incidents at that point of time. However, only the authorities of 12
districts (out of total of 30), supplied him copies of 41 FIRs.
5.5. In the meantime, the Respondent No. 1, filed several compliance
affidavits before the High Court in the pending proceedings,
candidly acknowledging that between May 2021 and August 2022,
171 instance of police encounters had taken place wherein 56
persons were killed including 4 custodial deaths, and 145 persons
were injured. As such, the scope of the Petition was expanded, and
all 171 alleged police encounters between May 2021 and August
2022 came to be scrutinised.
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5.6. The High Court, however, after considering the affidavits filed by
the parties and other material on record, dismissed the petition
holding that that “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 High Court returned a categorical
finding that the Appellant has failed to point out any infirmity in
the procedure adopted in any of the enquiry proceedings or any
guideline laid down in PUCL (supra) based on the materials
brought on record. Given the foregoing, the High Court also turned
down the prayer to constitute a Special Investigation Team (SIT) or
hand over the investigation of these encounters to the Central
Bureau of Investigation (CBI). The High Court ofcourse directed
that the Appellant shall be provided all legally permissible
documents in connection with all such cases.
B. CONTENTIONS ON BEHALF OF THE APPELLANT
6. Mr. Prashant Bhushan, learned counsel for the Appellant, strongly
contended that the High Court has fell in error in overlooking the
fact that 56 persons have lost their lives and 145 have been
grievously injured in police encounters. According to him, the
guidelines laid down in PUCL (supra) were not adhered to in any
of these incidents.
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7. In support of his contentions, Mr. Bhushan has advanced the
following submissions:
a) At the outset, any imputation on the bona fides of the
Appellant is unfounded. The Appellant is a permanent resident
of the State of Assam and being a practicing advocate,
espouses the cause of transparency and accountability of
public institutions. The majority of the victims and/or their
families are either unaware of their rights or are scared to
approach the police officials seeking further investigation.
b) The FIRs pertaining to the incidents of police encounters have
been registered against the victims i.e., the persons killed or
injured and not against the concerned police officials. The
registration of FIRs is in violation of the guidelines laid down
by this Court in Para 31.2 of the judgment in PUCL (supra)
which prescribes that in the event of an encounter leading to
death, an FIR shall be registered and forwarded to the
jurisdictional court under Section 157 of the Code of Criminal
Procedure (CrPC).
c) The investigation into these incidents of police encounters has
not been conducted in an independent manner. In this regard,
Para 31.3 of the judgment in PUCL (supra) mandates that an
independent investigation into the incident shall be conducted
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by the Crime Investigation Department (CID) or police team ofanother police station under the supervision of a senior officer.
However, the investigation into these police encounters was
conducted by officers from the same police station.
d) Such so-called investigation was merely an eye wash and
nothing more than a superficial exercise, intended to create an
illusion of accountability. It was riddled with a glaring conflict
of interest, and not only did it compromise the integrity of the
process but also provided the officers involved with a
convenient opportunity to shield themselves from scrutiny and
evade any real consequences for their misconduct.
e) A perusal of the 41 FIRs supplied to the Appellant, 12 of which
were also placed on record before the High Court, clearly
indicates a somewhat similar modus operandi adopted by the
police officials who have justified the killings and injury caused
to people on the pretext that they were trying to flee. This gives
rise to the apprehension that the police officials have
undertaken these encounters in a premeditated manner and
not in self defence as proclaimed by them.
f) The guidelines laid down by this Court in PUCL (supra)
mandates that the concerned police official must surrender
their weapon for forensic/ballistic analysis. In breach of the
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prescribed guidelines, the Magisterial inquiries in several
incidents remain silent on this aspect, offering no indication
as to whether any ballistic or forensic examinations were ever
conducted. The Appellant has illustratively pointed out the
inquiry reports in the cases of deaths of Dimasa National
Liberation Army (DNLA) cadres, suspects of the United People’s
Revolutionary Front, Kanwaldeep Singh Sindhu, Sorangi
China, and Bubu Konwar which do not refer to the forensic
analysis.
g) Regardless of the clear mandate laid down in PUCL (supra),
which expressly requires a Magisterial inquiry or an
independent investigation even in cases involving grievous
injuries, this crucial procedural safeguard has been
disregarded. In the majority of such instances, no such inquiry
or investigation has been initiated, reflecting a serious
departure from the established legal framework intended to
ensure transparency and accountability.
h) The State of Assam has failed to indicate the present status of
investigation in all the 171 cases leading to death or grievous
injury. The table tendered before this Court on 25.02.2025
indicates that charge sheet has been filed in 5 out of the 41
cases leading to death. However, the charge sheets have not
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been placed on record, and it is feared that they may be against
the victims, not the concerned police personnel.
C. CONTENTIONS ON BEHALF OF THE RESPONDENT(S)
8. Mr. Tushar Mehta, learned Solicitor General of India, along with
Mr. Devajit Saikia, Advocate General and Mr. Nalin Kohli,
Additional Advocate General for the State of Assam, appearing for
Respondent Nos. 1-3 have vehemently asserted that the High Court
has rightly dismissed the PIL as the Appellant failed to establish or
point out any lacunae in the investigation conducted into the
instances of police encounters.
9. Their submissions may be summarised as follows:
a) The issues raised in the instant petition are vague, baseless
and whimsical, and the High Court rightly dismissed the same
as being premature. As per the reports submitted by the
Superintendent of Police of all the districts, the guidelines
issued by this Court in PUCL (supra) have been diligently
observed in all death cases.
b) In all instances where police encounters have resulted in
death, separate FIRs have been lodged; independent
investigations have been conducted; and Magisterial inquiries
have also been ordered. In its affidavit dated 29.09.2022, the
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State of Assam has categorically stated that 171 cases havebeen registered and that investigations are currently
underway.
c) The reliance placed by the Appellant on Para 31.3 of the
judgment in PUCL (supra) to suggest that ‘an independent
investigation into the incident shall be conducted by the CID or
police team of another police station’ in every incident, is
completely misplaced and incorrect. The judgment does not
contemplate the registration of FIR at a different police station.
The Appellant’s contention in this regard is thoroughly
untenable as the FIR has to be registered by the police station
having jurisdiction over the matter. The Appellant’s claim in
this regard would make the investigation unnecessarily
onerous and time-consuming. Similarly, the need for
constituting an independent investigating agency would arise
only when a prima facie case has been made out that
investigation is not being carried out in accordance with the
due procedure prescribed by law.
d) Fair and impartial magisterial inquiries have been conducted
in all incidents where death has been caused in police
encounters. More importantly, all these inquiries have been
undertaken strictly per the guidelines in PUCL (supra). The
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particulars of the stage of investigation or conduct of
magisterial inquiry in all 171 cases were placed before the High
Court vide the affidavit dated 29.09.2022.
e) Insofar as the reference to forensic/ballistic reports is
concerned, the Appellant has sought to present
unsubstantiaed claims without being supported by any cogent
facts. He has selectively read the reports and deliberately
concealed the fact that ballistic examination reports and
forensic reports were yet to be received in some cases, and in
others, were received later. Those reports were duly considered
before filing of the charge sheet or final report.
f) The Appellant’s contention that PUCL (supra) applies even in
cases of grievous injury is totally erroneous. The judgment only
provides that the guidelines will also apply to grievous injury
cases in police encounters, as far as possible. The phrase ‘as
far as possible’ shows that compliance and adherence to the
guidelines need not be made in a strict sense.
g) The allegation of the Appellant that the State of Assam has
failed to indicate the present status of the investigation is also
entirely misplaced. It is noteworthy that the State of Assam, in
its counter-affidavit dated 29.04.2024, has stated that out of a
total of 171 cases, charge sheets have been filed in 125 cases,
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forwarding reports were submitted in 23 cases, and that the
remaining 23 cases were still pending investigation. The
competent police officials have investigated all the cases under
the supervision of the Superintendent of Police of the
concerned districts.
D. ISSUES FOR CONSIDERATION
10. Having regard to the rival submissions, we find that the following
issues arise for our consideration:
(a) Whether the allegations made by the Appellant prima facie
establish violation of the guidelines laid down by this Court in
PUCL (supra) ?
(b) If so, what are the remedial measures?
E. ANALYSIS
E.1. Understanding the Context and Framework of the Guidelines
laid down in PUCL (supra)
11. The instant controversy, in its core, revolves around the alleged
infraction of the PUCL (supra) guidelines. We therefore deem it
appropriate to firstly advert to the context, intent, and purport of
those guidelines.
12. The PUCL case arose against the backdrop of allegations of fake or
staged police encounters in the State of Maharashtra and other
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parts of the country, where individuals purported to be criminals
were killed by the police. The petitioner therein, PUCL, sought
court-monitored guidelines to curb the misuse of power and ensure
accountability and transparency in such encounters, in light of
Article 21 of the Constitution of India.
13. This Court recognised the gravity of the issue, noting that fake
encounters are extra-judicial killings and must be subject to strict
legal scrutiny. While issuing sixteen (16) mandatory guidelines, this
Court held that any encounter killing must be investigated fairly
and independently, and cannot be treated as justified merely on the
claim of self-defence by the Police.
14. To examine the contention at hand, we deem it appropriate to
extract a few guidelines that have been contested before us:
“31.1. Whenever the Police is in receipt of any intelligence
or tip-off regarding criminal movements or activities
pertaining to the Commission of grave criminal offence, it
shall be reduced into writing in some form (preferably into
case diary) or in some electronic form. Such recording
need not reveal details of the suspect or the location to
which the party is headed. If such intelligence or tip-off is
received by a higher authority, the same may be noted in
some form without revealing details of the suspect or the
location.
31.2. If pursuant to the tip-off or receipt of any
intelligence, as above, encounter takes place and
firearm is used by the police party and as a result
of that, death occurs, an FIR to that effect shall be
registered and the same shall be forwarded to the
court under Section 157 of the Code without any
delay. While forwarding the report under Section 157 ofPage 13 of 36
the Code, the procedure prescribed under Section 158 of
the Code shall be followed.
31.3. An independent investigation into the
incident/encounter shall be conducted by the CID or
police team of another police station under the
supervision of a senior officer (at least a level above
the head of the police party engaged in the encounter).
The team conducting inquiry/investigation shall, at a
minimum, seek…
31.4. A Magisterial inquiry under Section 176 of the
Code must invariably be held in all cases of death
which occur in the course of police firing and a
report thereof must be sent to Judicial Magistrate having
jurisdiction under Section 190 of the Code.
31.5. The involvement of NHRC is not necessary unless
there is serious doubt about independent and impartial
investigation. However, the information of the incident
without any delay must be sent to NHRC or the State
Human Rights Commission, as the case may be.
*****
31.7. It should be ensured that there is no delay in
sending FIR, diary entries, panchnamas, sketch, etc., to
the concerned Court.
31.8. After full investigation into the incident, the report
should be sent to the competent court under Section 173
of the Code. The trial, pursuant to the chargesheet
submitted by the Investigating Officer, must be concluded
expeditiously.
31.9. In the event of death, the next of kin of the alleged
criminal/victim must be informed at the earliest.
*****
31.13. The police officer(s) concerned must surrender
his/her weapons for forensic and ballistic analysis,
including any other material, as required by the
investigating team, subject to the rights under Article 20
of the Constitution.
*****
31.16. If the family of the victim finds that the above
procedure has not been followed or there exists a
pattern of abuse or lack of independent
investigation or impartiality by any of the
functionaries as above mentioned, it may make a
complaint to the Sessions Judge having territorial
jurisdiction over the place of incident. Upon such
complaint being made, the concerned Sessions Judge
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shall look into the merits of the complaint and address
the grievances raised therein.
32. The above guidelines will also be applicable to
grievous injury cases in police encounter, as far as
possible.”
15. It may be seen that the guidelines provide for the registration of
FIR, independent investigation, Magisterial inquiry, involvement of
forensic science, informing the next of kin, compensation and
information to the NHRC and State Human Rights Commission
(SHRC), among others. These guidelines, in a way, reaffirm the
primacy of the Rule of Law as the bedrock of our constitutional
democracy. This Court authoritatively held that no individual or
institution, including the Police or law enforcement agencies, is
above the law. It cautioned against the emerging culture of
glorifying police encounters as indicators of effective policing or
public heroism and observed that such glorification distorts the
role of the Police in a constitutional democracy and fosters a climate
of impunity, where extra-judicial methods are valorised over legal
processes.
16. It needs no emphasis that, the use of excessive or unlawful force
by public authorities, irrespective of the nature of the offence or the
antecedents of the victim, cannot be condoned or legitimised on any
pretext. Any derogation from the principles of due process, even in
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the name of expediency or public safety, erodes the foundation of a
democratic and civilised society.
17. Having impressed upon the befitting relevance of the PUCL (supra)
principles and having delineated the dictum governing the present
controversy, the stage is now set to examine the rival contentions
advanced by the parties.
E.2.Whether the allegations made by the Appellant prima facie
establish violation of the guidelines laid down by this Court in PUCL
(supra) ?
E.2.1. Locus Standi of the Appellant
18. At the very outset, we deem it appropriate to address the objection
raised on behalf of the Respondent questioning the locus of the
Appellant to maintain the present proceedings. The Appellant
approached the High Court purportedly on the ground that the
victims and their families are either unaware of their legal rights or
too intimidated to approach the appropriate authorities. While such
apprehensions may not be entirely unfounded, the question that
arises is whether the Appellant, as a third party, can invoke the
Writ Jurisdiction of the High Court in a matter that appears to
impact specific individuals more directly than the public at large.
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19. It is trite law that since the evolution of the PIL jurisdiction,
particularly post the landmark pronouncements beginning in
1984, the doctrine of locus standi has been considerably liberalised.
The transformation of the traditional adversarial system into a
more participatory model, has allowed conscientious citizens to
knock at the doors of Constitutional Courts in matters involving
gross violations of Fundamental Rights, environmental
degradation, systemic corruption, or executive apathy affecting
large segments of society.
20. However, with the widening of the gates to justice, comes an
enhanced responsibility upon the court to ensure that this
jurisdiction is not invoked in a manner that causes more harm
than good. Where the alleged cause espoused by a third party in
the form of a PIL relates to a specific individual or a closed set of
individuals — particularly where the implications of judicial
intervention may directly alter or jeopardize the legal position of the
victim or their kin — it becomes imperative for the courts to tread
with utmost circumspection.
21. The danger of an unintended miscarriage of justice or irreversible
prejudice being caused to an invisible and voiceless victim or their
family, merely because a well-meaning but distanced individual
has approached a Writ Court, cannot be discounted. In such
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situations, it is not sufficient for the court to proceed solely on the
averments of the person advancing the cause before the court.
Instead, it becomes obligatory for the court to independently
explore mechanisms — institutional or otherwise — that can
facilitate direct communication with the victim or their family,
thereby enabling them to make an informed choice about
participation or redressal through judicial means.
22. Adverting the facts of this case, we deem it appropriate to
acknowledge the role played by the Appellant in bringing to the
court’s attention a matter that raises grave and disquieting
concerns. The assertion that several victims and their families are
either helpless to seek legal recourse or too intimidated to approach
the authorities need not be summarily disregarded. It is not
uncommon in situations involving alleged abuse of power by State
actors for the affected individuals to remain silent, either out of fear
or lack of resources. The Appellant has, through sustained efforts,
placed before this Court as many as 171 individual instances, each
warranting objective scrutiny.
23. It must, however, be borne in mind that the mere compilation or
aggregation of cases does not, by itself, call for omnibus judicial
directions. The allegations that some of these incidents may involve
fake encounters are indeed serious and, if proven, would amount
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to a grave violation of the right to life under Article 21 of the
Constitution. It is however equally possible that upon a fair,
impartial, and independent investigation, some of these cases may
turn out to be necessary and legally justified. This distinction is
critical. The issuance of broad-brush directives without individual
scrutiny could result in a miscarriage of justice, either by shielding
the guilty or by stigmatizing legitimate action by public servants
discharging their duty under challenging circumstances.
24. It is in this delicate constitutional balance that the court must
situate its response. The invocation of public interest jurisdiction,
cannot become a substitute for procedural safeguards and the right
of individual victims or their families to be heard. The risk of issuing
general directions in the absence of independent assessment is not
merely procedural — it strikes at the very heart of the principles of
fairness and due process that underpin our judicial system. The
jurisprudence developed by this Court over the decades reinforces
the position that justice must be individualized where the
consequences are personal and irreversible.
25. It therefore becomes incumbent upon this Court to devise a
calibrated mechanism whereby each of the alleged incidents is
examined independently, and where victims or their families are
accorded a real and meaningful opportunity to participate in the
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process. Their voices must be heard not as a matter of courtesy,
but as a matter of right. The function of a Constitutional Court in
such circumstances is not merely adjudicatory, but protective — to
safeguard the rule of law, and to ensure that the promise of justice
does not remain illusory for those who are most vulnerable.
E.2.2. Obligation of this Court to safeguard Constitutional
obligations
26. In order to consider the veracity of the allegations regarding the
violation of the guidelines enumerated in PUCL (supra), we have
already set out in detail the contentions advanced by the parties in
the preceding sections of this judgment. The contentions raised by
the Appellant are rooted in constitutional concerns relating to the
right to life and the accountability of law enforcement, particularly
in light of the binding nature of the procedural safeguards
mandated by this Court.
27. According to the Appellant, there has been a profound and systemic
failure in adhering to the cited guidelines, in the aftermath of a
series of police encounters in the State of Assam. The Appellant
alleges that in several cases, no FIR has been registered against the
concerned police officials, or the provisions invoked in the FIR are
not appropriate for cases of police encounters. It was also argued
that in some instances, the FIR has been registered against the
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victims of these police encounters and not the erring police officials.
According to the Appellant, such inappropriate registration of FIRs
directly contravenes this Court’s mandate, which unequivocally
requires that every case of encounter resulting in death or grievous
injury must be brought under the ambit of criminal law through
the registration of a case.
28. In addition, the Appellant has pointed to the absence of an
independent investigation by the CID or a police team from another
police station, which is a sine qua non under the PUCL (supra)
guidelines to ensure objectivity and prevent conflict of interest. The
Appellant has further alleged non-compliance with the requirement
of a magisterial inquiry in cases involving grievous injuries or
deaths, as well as the absence of any reference to ballistic and
forensic reports.
29. These allegations have however been vehemently refuted by the
Respondents, who submitted that in all instances where police
encounters have led to death, separate FIRs have been lodged, an
independent investigation conducted and a Magisterial Inquiry has
also been ordered. The State, in its counter-affidavit has stated that
out of a total of 171 cases, a charge sheet has been filed in 125
cases, a forwarding report submitted in 23 cases, and the
remaining 23 cases were still under investigation. The Respondents
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also maintain that the requirement of involving an independent
agency, such as the CID or a team from another police station,
must be assessed contextually, and not applied as a blanket
directive. Such recourse becomes necessary only where credible
allegations are raised suggesting bias, partiality, or procedural
deviation on the part of the local investigating authorities.
30. In essence, the thrust of the argument is that the guidelines in
PUCL (supra) are to be interpreted as laying down general
procedural safeguards to ensure fairness and transparency, but
not as creating a rigid or mechanical requirement that displaces
the jurisdiction of the local Police in every encounter case, unless
justified by the facts of the case.
31. Insofar as the allegation relating to the non-consideration of
ballistic and forensic reports is concerned, the Respondents have
submitted that the Appellant, in undue haste, has painted an
incomplete and premature portrait of the investigative process. The
Respondents claim that the concerned forensic and ballistic reports
were received and duly taken into account by the investigating
authorities, albeit at a later stage in the proceedings. Mere timing
of such consideration does not ipso facto establish procedural
impropriety, particularly when the reports form part of the final
investigative record.
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32. Upon a comprehensive examination, it emerges that several
instances cited by the Appellant to demonstrate procedural non-
compliance of PUCL (supra) guidelines are factually incorrect or
incomplete. The Appellant has failed to independently place on
record any cogent or verifiable material to substantiate the
allegations. He has merely relied upon the data furnished by the
State itself to highlight purported lapses. After minutely scanning
such data, prima facie it seems that barring a few cases, it is
difficult to infer that there has been a procedural breakdown or the
PUCL (supra) guidelines were flagrantly violated. Further, in the
absence of independent corroboration or affidavits from affected
persons, the assertions remain more or less speculative.
33. The record further suggests that FIRs have been registered in all
the cases brought to our notice. The State of Assam has also
submitted a status report detailing each FIR and the respective
stage of investigation or prosecution. These documents prima facie
belie the claim of inaction and do establish that, at least at the
foundational level, the criminal process was duly initiated.
34. As regards the requirement of magisterial inquiry under the
framework prescribed by PUCL (supra), the State has
demonstrated that such inquiries were conducted in several cases.
However, the record remains inconclusive as to whether this
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procedural safeguard was uniformly followed in all encounter-
related incidents, as is mandatorily required in terms of the
referenced judgment. While partial compliance is visible, the
absence of a clear and consistent procedural trail in some cases
calls for closer administrative scrutiny by an independent authority
to ensure uniform adherence.
35. On the aspect of forensic and ballistic analysis, the State of Assam
has acknowledged that relevant reports were obtained and
considered in the course of the investigation. Nonetheless, it is also
apparent that such consideration occurred belatedly. While delayed
compliance cannot be equated with total omission, the procedural
sanctity envisaged by this Court necessitates that such reports be
requisitioned and evaluated at the earliest possible stage to ensure
fairness and objectivity in the investigative process.
36. Be that as it may, the records furnished by the State themselves
indicate that some instances may warrant further evaluation to
ascertain whether the guidelines laid down in PUCL (supra) have
been meticulously complied with, in both letter and spirit. The
gravity of the issues involved, namely, implicating the Fundamental
Rights under Article 21 requires that procedural safeguards are not
merely observed in form, but are meaningfully enforced to inspire
public confidence in the Rule of Law.
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37. We may hasten to clarify that the foregoing observation should not
be construed as casting any aspersions on the investigation carried
out by the State of Assam. No finding of mala fides or institutional
bias can be returned through a summary procedure such as the
instant proceedings. Given the constitutional importance of the
procedural mandates enunciated by this Court, it is imperative, in
the interest of justice, that an impartial and independent
institution undertakes a careful verification of compliance in each
case. Such scrutiny, if undertaken in good faith and within the
administrative framework already available, will reinforce
transparency and accountability in the criminal justice process.
38. Thus, even if the Appellant has not been able to conclusively
demonstrate the allegations of illegality or procedural violation on
the part of the Respondents, this Court cannot remain indifferent
where the rights and dignity of individuals, particularly in the
context of alleged extra-judicial actions, are at stake. To ensure
justice to the victims and their families, and to uphold the sanctity
of the procedure established by law, we hold that the issues raised
in the instant petition merit a fair and impartial inquiry. The
obligation of this Court to safeguard constitutional guarantees
persists irrespective of the identity or capacity of the litigant, and
where concerns arise regarding adherence to judicially mandated
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guidelines, the Constitutional Courts must act to preserve both
legality and accountability.
E.3. If so, what are the remedial measures?
39. Having held that the issue raised in the instant appeal requires fact
finding inquiry, we now proceed to analyse what would constitute
an appropriate response to these apprehensions.
E.3.1. Role of the National and State Human Rights Commissions
in the instant controversy
40. The domestic human rights architecture in India is supported by a
robust statutory framework that complements the constitutional
guarantees enshrined in Part III and the Directive Principles of
State Policy. Over the years, the Legislature has enacted various
laws to protect vulnerable groups, ensure accountability, and
strengthen institutional mechanisms for enforcing human rights.
At the centre of this framework stands the Protection of Human
Rights Act, 1993 (PHR Act), which institutionalises the
commitment of the Indian State to uphold and monitor human
rights in a structured and independent manner.
41. The PHR Act serves as the primary statutory instrument for the
promotion and protection of human rights in India. The Act defines
‘human rights’ under Section 2(d) as the ‘rights relating to life,
liberty, equality, and dignity of the individual guaranteed by the
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Constitution or embodied in international covenants and enforceable
by Indian courts’. The establishment of the NHRC and SHRC under
the PHR Act reflects an attempt to create autonomous, quasi-
judicial bodies capable of independent inquiry and intervention in
matters concerning human rights violations. These institutions are
vested with wide-ranging powers, including the ability to summon
witnesses, requisition public records, and initiate investigations
suo motu or on petitions filed by aggrieved individuals. In practice,
they function as vital conduits for bringing instances of abuse or
administrative apathy to the fore, particularly where traditional
avenues of redress may be inaccessible or delayed.
42. The PHR Act institutionalises grievance redressal, oversight, and
education mechanisms while linking domestic law with
international human rights instruments. These multifaceted roles
underscore the position that these Commissions not merely a
reactive body responding to complaints, but a proactive institution
seeking systemic reform and capacity-building across state
institutions. Though challenges in implementation and
enforcement persist, the PHR Act represents a formal legislative
acknowledgement of the inalienable nature of human rights and
India’s democratic obligation to protect them.
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43. This Court in the matter of Extra Judicial Execution Victim and
Anr. vs. Union of India and Ors.,2 has rightly underscored the
roles of the Human Rights Commission as ‘that of protector, advisor,
monitor and educator of human rights’. In that spirit, it is imperative
that their functioning is empowered, respected, and made
responsive, so that they may discharge their duties not merely as
passive observers but as active protectors of fundamental human
freedoms.
44. Applying this understanding of the human rights framework to the
instant controversy, we have no hesitation in holding that the role
of Human Rights Commissions, both at the National and State
levels, is paramount in a democratic polity governed by the Rule of
Law. These institutions serve as independent watchdogs tasked
with safeguarding the dignity, liberty, and rights of individuals,
particularly the vulnerable and marginalised who may lack access
to institutional redress. In a country as vast and diverse as India,
marked by complex socio-political dynamics and systemic
inequities, these Commissions provide an essential forum for
accountability, transparency, and remedial action against human
rights violations. Their mandate to investigate complaints, monitor
2
Extra Judicial Execution Victim and Anr. vs. Union of India and Ors, Writ Petition (Crl.)
No. 129/2012.
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custodial institutions, and recommend reforms reinforces the
constitutional vision of justice, liberty, and equality.
45. To that effect, we are pained to observe that, in this matter, the
jurisdiction of AHRC was consciously ousted. It is a matter of
record that AHRC had taken suo motu cognizance of the matter
even before the Appellant filed a complaint before the NHRC.
Despite the AHRC being seized of the matter and also being the
appropriate forum vested with territorial and subject-matter
jurisdiction, the Appellant chose to invoke the PIL jurisdiction of
the High Court at a subsequent stage, as a result of which the
AHRC disposed of the proceedings hastily.
46. We are certain that the Appellant did not approach the High Court
with an intention to render statutory institutions redundant or to
obstruct their independent functioning. Human Rights
Commissions, particularly those functioning at the state level, are
designed to act as swift, accessible, and credible bodies for
investigating and redressing violations of human dignity and
constitutional safeguards. We reiterate that the efficacy of such
institutions is directly linked to public trust and procedural
integrity. We also expect these Human Rights Commissions to be
proactive in their approach and conduct proceedings with a sense
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of urgency and purpose that resonates with the gravity of the
allegations.
E.3.2. Striking the Constitutional Balance: The Path Ahead
47. Having considered the nature of the controversy, we are of the firm
view that the instant case involves several questions of fact which
cannot be effectively determined by this Court. Similarly, the
instant dispute is neither amenable to adjudication through a
conventional trial, nor can the investigation be fairly or effectively
entrusted to the State Police, as the allegations pertain to the
conduct of police officials themselves. The principle of fairness,
which is the bedrock of all just legal processes, mandates that any
inquiry into the alleged excesses must be independent and
insulated from institutional bias. The risk of conflict of interest and
the apprehension of a lack of real or perceived impartiality render
it inappropriate to involve the State Police in further inquiry.
48. Having outlined the significance, jurisdiction, and institutional
mandate of the Human Rights Commissions, it has come to our
knowledge that the AHRC is now headed by an erudite jurist who
is a retired Chief Justice of the High Court whose judicial acumen
and integrity inspire confidence. This Court has every reason to
believe that under his stewardship, the AHRC will discharge its
duties with diligence, sensitivity, and an abiding commitment to
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constitutional values. Accordingly, we deem it appropriate to
entrust the inquiry of this matter to the AHRC for advancing it to
its logical conclusion. The order dated 12.01.2022 passed by the
full bench of the AHRC, whereby it had disposed of this issue is
thus, set aside. The matter is directed to be reinstated on the board
of the AHRC for necessary inquiry into the allegations
independently and expeditiously, in accordance with law.
49. In furtherance of the foregoing direction, we consider it essential to
ensure that the victims of the alleged incidents, or their family
members, are given a fair and meaningful opportunity to
participate in the proceedings. To that end, we direct the AHRC to
issue a public notice inviting all individuals who claim to be
aggrieved (victims and their family members) by the alleged police
encounters to come forward and furnish relevant information or
evidence before AHRC. The notice shall be published in at least one
national English daily and one prominent vernacular newspaper
with wide circulation throughout the State of Assam. The
publication of such a notice shall be carried out in a manner that
is accessible and understandable to the general public, including
those residing in remote and conflict-prone areas. The notice shall
also include the contact details of the officers of the Taluka and
District Legal Services Authorities, thereby enabling the victims
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and/or their families to access free legal aid in approaching the
AHRC.
50. We further direct that the AHRC may ensure confidentiality with
respect to the identity of the victims, their families, or any other
individuals who approach it in connection with the inquiry. AHRC
is expected to adopt robust measures akin to witness protection
protocols to safeguard the privacy, safety and security of those
participating in the process. We say so because the protection of
such identities is imperative to create an atmosphere of trust and
prevent any fear of reprisal or intimidation. We trust that the AHRC
will proceed with the highest degree of sensitivity, impartiality, and
diligence, thereby reinforcing public faith in the institutional
mechanisms for protecting human rights.
51. Should the AHRC, in the course of its inquiry, form the opinion that
a more detailed investigation is warranted to ascertain the facts and
circumstances surrounding the alleged encounters, it shall be at
liberty to initiate such an investigation through means it deems fit.
For this purpose, the AHRC may engage the services of retired or
serving police officers of impeccable integrity and unblemished
record, provided that such officers are not in any way connected
with or subordinate to the police personnel involved in the alleged
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incidents. The choice of personnel and the manner of conducting
such an investigation shall remain within the discretion of AHRC.
52. We direct the State of Assam to extend full cooperation to the AHRC
and ensure that all logistical, financial, and administrative
requirements for such an investigation are promptly and
adequately met. The State is also directed to provide access to
records, facilitate the availability of forensic and expert resources,
and remove any institutional barriers that may hinder the
functioning of AHRC.
53. Furthermore, to ensure that victims and their families are not
disadvantaged due to a lack of resources or awareness, we direct
the Assam State Legal Services Authority (ASLSA) to make legal
assistance available to any such individuals who may seek support
in approaching or presenting their case before the AHRC. We direct
the Member Secretary of the ASLSA to issue specific instructions
to District and Taluk level officers in this regard.
54. In this vein, the Appellant in his capacity as an Advocate, shall be
free to represent the victims or their families before the AHRC, if so
engaged by them.
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F. CONCLUSION
55. Considering the totality of the circumstances and for the reasons
assigned hereinabove, we deem it appropriate to dispose of the
instant appeal with the following directions:
a) The Impugned Judgment of the High Court dated 27.01.2023
is set aside;
b) The order dated 12.01.2022 passed by the full bench of the
AHRC disposing of this issue on the pretext that the subject
matter was sub-judice before the High Court is also set aside.
This matter is directed to be reinstated on the board of the
AHRC for necessary inquiry into the allegations independently
and expeditiously, in accordance with law;
c) The AHRC is directed to issue a public notice inviting all
individuals who claim to be aggrieved (victims and their family
members) by the alleged police encounters to come forward
and furnish relevant information or evidence before the AHRC.
The notice shall be published in at least one national English
daily and one prominent vernacular newspapers with wide
circulation throughout the State of Assam. The notice shall
also include the contact details of the officers of the Taluka and
District Legal Services Authorities, thereby enabling the
victims and/or their families to access free legal aid;
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d) AHRC may ensure that the identity of the victims, their
families, or any other individuals who approach it in
connection with the inquiry shall be strictly confidential. AHRC
is expected to adopt robust measures akin to witness
protection protocols;
e) During the course of its inquiry, if the AHRC forms the opinion
that a more detailed investigation is warranted, it shall be at
liberty to initiate such an investigation through means it
deems fit. For this purpose, the AHRC may engage the services
of retired or serving police officers of impeccable integrity and
unblemished record, provided that such officers are not in any
way connected with the police personnel involved in the alleged
incidents;
f) The State of Assam is directed to extend full cooperation to the
AHRC and ensure that all logistical, financial, and
administrative requirements for such an investigation are
promptly and adequately met;
g) We direct the ASLSA to make legal assistance available to
individuals seeking support in approaching or presenting their
case before the AHRC for which its Member Secretary is
directed to issue specific instructions to the District and Taluk
level officers; and
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h) The appeal is allowed in the above terms. Pending interlocutory
applications, if any, are also disposed of.
56. Ordered accordingly.
…..………………… J.
[SURYA KANT]
………..…………………….………………… J.
[NONGMEIKAPAM KOTISWAR SINGH]
NEW DELHI
DATED: 28.05.2025
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