Delhi High Court
Kiran Singh vs National Human Rights Commission & Ors on 28 January, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13th December, 2024
Date of decision:28th January, 2025
+ W.P.(CRL) 2475/2015 & CRL.M.A. 33269/2024
KIRAN SINGH .....Petitioner
Through: Mr. Saurabh Prakash, Mr. Utsav Jain
and Mr. Anant Aditya Patro Advs.
versus
NATIONAL HUMAN RIGHTS
COMMISSION & ORS. .....Respondents
Through: Mr. Dayan Krishnan, Sr. Adv. with
Mr. Rajesh Mahajan, SPP for R-3 with
Insp. Chandan, Anil Soni for MHA
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
Background
2. The present case relates to an alleged fake encounter by the Special Cell
of the Delhi Police that took place on the night of 5th May, 2006, where five
members of the Ayub/Aslam gang died and the 6th member is stated to have
escaped into the darkness. It is averred that the gang was involved in more
than 70 cases of murder, attempt to murder, dacoity, robbery, rape etc. The
name of the five members are Ayub, Sanjay, Shehzad/Babu, Aslam and
Manoj.
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Brief Facts
3. The present petition has been filed by the Petitioner-Kiran Singh, father
of Late Manoj, who lost his life in the alleged fake encounter. According to
the petition, the deceased Manoj used to run a provision store called M K
Provisions Store which is now being run by the Petitioner. It is claimed that
he did not have prior criminal antecedents. He was made accused in two FIRs
i.e., FIR No.70/2002 PS Farsh Bazar u/s 397/34 IPC and FIR No.160/2002
PS Shahdara u/s 395/34 IPC. According to the petition, in both these cases he
was acquitted.
4. The deceased Manoj who was a resident of Meerut, was 31 years of age
in the year 2006 and is now survived by his wife and two daughters as also
his parents. It is stated that his wife had abandoned the family sometime in
the year 2008 and his two daughters have been brought up by their paternal
grandparents i.e., dada (Petitioner in the present case) and dadi. Both the
daughters are studying – one is pursuing B.A. and the other one is in 10th
standard. The Petitioner and his wife who are also parents of the deceased, are
also more than 75 years of age. The affidavit in support of the writ petition
has thus been sworn by Mr. Virender Singh, who is the son of Mr. Kiran
Singh.
5. Therefore, the Petitioner in the present case seeks directions to
Respondent Nos. 2 and 3 to give concurrence for an impartial CBI inquiry
into the alleged killings, and give compensation of Rs. 5 lakhs to the legal
heirs of all the deceased gang members including the legal heirs of Mr.
Praveen, who is stated to be missing. The compensation be given with interest
@18% from 17th April, 2014.The Respondents in the present case are as
under:
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S. No. Particulars Party
1. National Human Rights Commission Respondent No.1
(NHRC)
2. Ministry of Home Affairs (MHA) Respondent No.2
3. Delhi Police Respondent No.3
4. GNCTD Respondent No.4
6. Immediately after the alleged encounter on 5th May, 2006, a complaint
– Crime No.189/2006 P.S.-Khajoori Khas was filed on 6th May, 2006 u/s
186/353/307/34 IPC and Sections 25/27/54-59 Arms Act by Manoj Dixit,
Insp. Spl. Cell/NDR.
Proceedings before the NHRC
7. As per the petition, complaints were filed before the NHRC sometime
in May or June, 2006, by the family members of some of the deceased, namely
Sanjay Kumar and Aslam, claiming that they have been taken away from their
respective houses by the Police and subsequently killed in the fake encounter.
The NHRC then, vide its order dated 14th June, 2006 directed the
Commissioner of Police to take action in terms of its guidelines dated 2nd
December, 2003. Pursuant thereto, a notice was sent to the Commissioner of
Police, Delhi on 15th June, 2006. A reply to the said notice was received by
the NHRC on 22nd February, 2007 from the ACP- Vigilance, Delhi Police.
With the said reply, a report of the DCP, Special Cell, Delhi dated 6th May,
2006 was attached, as per which it was claimed that certain secret information
was received on 5th May, 2006 at 08:00 P.M. and a secret raiding team of
police officials was organized. Around 10:45 P.M. a Tata Sumo with six
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occupants was intercepted. It was claimed that the occupants of the said
vehicle fired at the police and the police had returned the fire. According to
the police, five persons, who were initially injured and, thereafter died, were
involved in more than 70 cases. Aslam, who was one of the occupants, was
alleged to have been involved in 20 cases i.e., cases of murder, attempt of
murder, rape, dacoity, robbery, etc. The allegations made by Aslam’s father
were denied by the police. The NHRC was not satisfied with the reply as it
felt that the guidelines dated 2nd December, 2003 given by the Commission
had not been complied with and further directions were issued for submitting
a Magisterial Inquiry Report.
8. A response was then received by the NHRC from the Additional DCP
of Delhi Police dated 24th December, 2007 wherein it was stated that in the
FIR No.189/06 PS Khajuri Khas, registered – post the encounter, a final report
dated 16th October, 2007 was prepared. The said report had been filed by the
S.H.O, Khajoori Khas, North East District, Delhi describing the details of the
encounter including the site plan, the location of the hand grenades, pistols
and the bodies of the deceased gang members. The NHRC in its order dated
25th February, 2008 considered the said report and was of the opinion that no
Magisterial Inquiry was held in this alleged encounter case and sought an
explanation from the Commissioner of Police.
9. On 27th January, 2010, the NHRC directed the clubbing of the cases
relating to the above stated persons, who died in the alleged encounter. On 1st
April, 2010, the NHRC directed the Investigation Division to consider the
post-mortem report, ballistic reports and statements recorded by the police
and submit a report. The NHRC then notes in its proceedings on 3rd June,
2010 that various records including charge sheet, post mortem report, ballistic
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report, statements recorded by the police etc., were not forwarded to it.
Accordingly, it issued notice to the DCP to remain present before it.
10. Pursuant to the said order, the concerned documents were submitted by
the Delhi Police, which revealed to the NHRC that no Magisterial inquiry was
held on the instructions of the Hon’ble Lt. Governor and no forensic evidence
was filed. The NHRC then, vide its order dated 15th July, 2010, directed as
under:
“After considerable difficulty, and only on the issuance
of conditional summons, the Commission has at last
extracted from the Delhi Police copies of the PMRs,
several of which are barely legible.
It still does not have a Magisterial Enquiry Report,
though this was so serious an incident that it was
absolutely essential to have an impartial inquiry
conducted. The Commission has noted in other
proceedings that it is the practice of the Government of
NCT of Delhi not to have Magisterial Enquiries
conducted. The Commission has been told in response
by the Government of NCT of Delhi that it has
reservations about holding the enquiries on encounters.
It would appear that the Government fears what an
impartial inquiry might unearth and is anxious to have
the truth suppressed. In this particular incident, a
Magisterial Enquiry would have examined independent
witnesses and the relatives of the deceased, two of whom
have made allegations which, if proven, would
immediately have destroyed the credibility of the
account given by the police.
This repeated refusal of the Government of NCT of
Delhi to conduct Magisterial Enquiries is in clear
breach of the guidelines issued by the Commission to all
the State Governments under which “a Magisterial
inquiry must invariably be held in all cases of death
which occur in the course of police action. The next ofSignature Not Verified W.P.(CRL) 2475/2015 Page 5 of 76
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kin of the deceased must invariably be associated in
such inquiry”. These guidelines were sent to all the
Chief Ministers by the Commission, and no reservations
or objections were received from the Government of
NCT of Delhi, which is, therefore, bound to follow them,
though it has, in fact, chosen to violate them.
Neither can the police investigation be considered
efficient. The Commission has been sent a report of the
ballistic tests done, which confirms that the weapons
sent to the laboratory were in working order and had
fired the cartridges which were also sent for
examination. However, no finger prints were taken from
the weapons, nor any swabs from the fingers of the
deceased. There is no forensic evidence, therefore, to
establish that they had handled these guns or had fired
them.
In normal circumstances, it might have been thought
that all this was evidence of incompetence. However, the
Commission believes that the conduct of the
Government of the NCT of Delhi, in the aftermath of
these alleged encounters, reflects cunning rather than
inefficiency. The intention clearly is to withhold or delay
the production of documents that might bring the truth
to light, and not conduct inquires that might help either
this Commission or any other agency to unearth the
truth. The Commission cannot permit this, when there
are suspicions that human rights have been so
grievously violated.
In exercise of its powers u/s 13 (1) (e) of the
Protection of Human Rights Act, 1993, which authorizes
the Commission to ‘issue commissions for the
examination of witnesses or documents”, it directs the
District Magistrate, North East Delhi to examine the
witnesses and other documents germane to an inquiry
into this incident. The DM shall conduct this inquiry
speedily, so much time having already been lost. He
shall, in particular, ensure that the relatives of the
deceased are examined. He should also examine theSignature Not Verified W.P.(CRL) 2475/2015 Page 6 of 76
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Medical Officers who conducted the autopsy. A report
should be sent to the Commission on or before the 28 th
October, 2010″
11. As can be seen from the above order, the NHRC directed the District
Magistrate, North East to examine all the documents and witnesses, and
conduct an inquiry into the incident. The Lieutenant Governor on 7th
September, 2010 considered the reference of the National Human Rights
Commission for a magisterial inquiry, where the family members of the
deceased as also the doctor who conducted the autopsy are examined. The
Hon’ble Lt. Governor thereafter appointed the Divisional Commissioner,
Delhi who is also the Principal Secretary (Revenue)/District Magistrate
(hereinafter referred as ‘DM’) to conduct the magisterial inquiry and directed
the Commissioner of Police to extend full cooperation with respect to
providing documents and any other information.
12. The inquiry which was to be conducted by the District Magistrate
consumed considerable time. On 5th January, 2011, the Commission was
informed that the DM, Delhi has been entrusted with the magisterial inquiry
and a report of the said inquiry was directed to be submitted by 16th February,
2011. Subsequent to this, as per the NHRC orders, various issues were raised
by the DM with respect to compliance by the witnesses and the difficulties
faced in collecting the documents that were to be received from the Special
Cell of the Delhi Police.
13. Finally, on 2nd November, 2011 and 7th March, 2012, summons were
issued to the DM, Delhi to appear before the Commission and explain the
reasons why the inquiry was not completed. The DM finally concluded the
Inquiry and submitted report dated 29th June, 2012.
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Report of the Divisional Commissioner/ Principal Secretary, Revenue/
District Magistrate
14. The Report of the DM dated 29th June, 2012, considered the statements
of the relatives of the deceased, response of the officials, response of the raid
team, response of the police officers of the District North East and P.S.
Khajuri Khas, response of the Meerut Police and response of the Medical
Officer who conducted the post- mortem.
15. The Commissioner thereafter observed that the details of the informer
were not disclosed, cotton swab samples weren’t taken from the hands of the
deceased, bodies of the deceased had blunt force injuries and there were
repeated statements of the relatives of the deceased, that they met the police
officials, however the same were denied. The DM thereafter came to a
conclusion that there is ample doubt on the genuineness of the encounter by
the Special Cell, Delhi Police and recommended a CBI inquiry. The
concluding observations of the DM’s report are extracted below:
“7. Conclusion:-
There is ample material on record which creates
reasonable doubt about the genuineness of the
encounter by the special cell of Delhi Police. There is
even more record to prove the farce of the investigation
which was conducted by the District Police of the North
East District. This enquiry has been handicapped in
firmly disproving the story of the special cell of the Delhi
Police due to following reasons:-
i) Inordinate and fatal delay in starting the magisterial
enquiry, almost six years after the incident due to
various reasons, well known to the Hon’ble NHRC.
ii) Failure to conduct examination of the informer(s)
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to disclose the details of the informer. This is important
because the entire complaint of the families of the
deceased is based upon Praveen being the informer.
iii) Failure to obtain old call details of the relevant
period of Pawan, the brother of the Praveen whereby
link between Praveen and special cell of Delhi Police
could not be established.
There are substantial evidences against the story of real
police encounter put forth by the Special Cell of the
Delhi Police particularly in view of the following:-
i) Non-disclosure of the details of informer can be
justifiable in normal circumstances in order to protect
the source of information. However, when the factum of
informer is at the heart of the complaint of the families
of the deceased killed in the police encounter, Special
Cell of the Delhi Police could have disproved the theory
of the complaints by coming out with the details, which
could have been kept confidential. As this has not been
done, the theory of Praveen, the alleged absconder
being police informer and having eliminated the gang
members particularly Sanjay in collusion with the Delhi
Police cannot be ruled out.
ii) Cotton swab samples were not taken from the hand
of all deceased for forensic examination. The reason for
that has not been clearly spelt out.
iii) The injuries on the body of the deceased which are
suggestive of blunt force injuries by Lathi, dragging
against the ground while they were resisting etc. as
elaborated in the statement of Dr N. K. Aggarwal, other
than the bullet injuries make a strong case in favour of
the accusation that the deceased were caught and
beaten by Police before the encounter and bullet
injuries.
iv) It is also not reasonably justified by the officials of
the Special Ceil of Delhi Police that in the scheme of the
encounter put forth by them why there was no
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intention was to catch the gang members and not to kill
them.
v) There are repeated statements of the relatives of the
deceased that they met with the members of the
encounter team of the Special cell and the I.O. of the P.
S. Khajuri Khas, Delhi. But, the same has been bluntly
denied by the police officials. However, there seems no
truth behind this denial other than hiding certain facts
on that perspective as family members of a person who
has absconded shall surely visit the concerned places
and officials.
As reasonable suspicion on the story of the special cell
of Delhi Police has been established, it would be in the
fitness of things if the case is entrusted to CBI, under
Delhi special police establishment act for thorough
investigation.
The role of the District Police, North East District
especially the I.O. Sh Satender Pal Singh Tomar, the
SHO, Sh. M. S. Shekhawat and the then A.C.P. Gokul
Puri, Sh. R. P. Gautam has been clearly established to
be full of premeditated intent to just corroborate the
story of the special cell of the Delhi Police with no effort
on their part to unearth the truth. Non investigation of
the vehicle used in the offence, not sending the Bullet
Proof Jackets for forensic examination etc. were fatal
injuries inflicted by the investigating team on the whole
truth finding exercise. Therefore, these officers are
liable for criminal prosecution.”
16. On 26th September, 2012, as per the NHRC proceedings it is recorded
that the DM conducted the inquiry and recommended vide report dated 29th
June, 2012, that a CBI inquiry be conducted. The Commission accepted this
recommendation and asked the Ministry of Home Affairs to issue appropriate
directions. Relevant portion of the said order is set out below:
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“The Principal Secretary (Revenue), who conducted
this enquiry, has sent his report, which the Commission
has examined, it finds, that after a detailed enquiry, the
Magistrate recommends that a CBI enquiry be
conducted.
The Commission accepts this recommendation and asks
the CBl to urgently conduct an enquiry into this incident.
The Ministry of Home Affairs, Government of India, is
asked to issue appropriate directions to the CBl. The
Commission expects the Government of NCT of Delhi to
give its consent to this enquiry, so that it can be held
urgently.
A response will be expected both from the Ministry of
Home Affairs, Government of India and from the
Government of NCT of Delhi by the 13th December,
2012.”
Action on the Divisional Commissioner’s (DM) report by the Hon’ble Lt.
Governor
17. The Hon’ble Lt. Governor considered two reports – the first report of
the police dated 16th October 2007 and the DM’s report dated 29th June 2012,
and observed that there were a lot of lacunae and inconsistencies in the
statements of the relatives of the deceased. Also, the fact that the inquiry was
conducted more than 4 years after the event, the Hon’ble LG was of the
opinion that there is lack of corroboration and therefore did not recommend a
CBI inquiry. However, appreciation was accorded to the effort of the DM in
conducting a detailed inquiry even though it was conducted 4 years after the
incident. The conclusion in the Hon’ble Lt Governor’s decision dated 31st
December, 2012, is extracted below:
“I have gone through the Report of the Magisterial
Enquiry. At the outset, I would like to appreciate the
hard work put in by the Divisional Commissioner in
conducting the enquiry even though he was severelySignature Not Verified W.P.(CRL) 2475/2015 Page 11 of 76
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hampered by the fact that he was asked to conduct the
enquiry more than 4 years after the event. The enquiry
relates to an event which occurred on 05.05.2006 and
the enquiry was assigned to the Divisional
Commissioner only on 07.09.2010. Due to the delay, lot
of important material could not be verified. Many
witnesses were not available. This delay also restricted
the ability of the Divisional Commissioner to verify
certain facts.
A perusal of the report of the Divisional Commissioner
points out that due to these limitation, he has put greater
reliance on the observations made by the family
members of the deceased during the interaction with
him. In the process, he has made certain assumptions
which are not based on hard facts and, therefore, lack
corroboration. The important observations made by him
are based on the informer theory i.e. as narrated by Smt.
Prabha Devi, wife of Sanjay. There is a presumption
that Praveen Kumar, the alleged absconder, was a
police informer and he, in collaboration with the police,
arranged an encounter where the deceased were gunned
down. I would like to draw attention to the observation
of the Enquiry Officer on page-110 of the report:-
“Non-disclosure of the details of informer can
be justifiable in normal circumstances in
order to protect the source of information.
However, when the factum of informer is at
the heart of the complaint of the families of the
deceased killed in the police encounter,
Special Cell of the Delhi Police could have
disproved the theory of the complaints by
coming out with the details, which could have
been kept confidential. As this has not been
done, the theory of Praveen, the alleged-
absconder being police informer and having
eliminated the gang members particularly
Sanjay in collusion with the Delhi Police
cannot be ruled out.”
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However, if we look into the report annexed to the
Police Commissioner’s letter, we find that Smt. Prabha
Devi, wife of Sanjay, had complained to NHRC, SC/ST
Commission and Hon’ble Supreme Court a few days
after the encounter. In her complaint, she made
allegation that her husband Sanjay was taken away by
a Constable on 05.05.2006 at 7:30 PM. In this
complaint, she has not mentioned that it was Shri
Praveen Kumar who took away her husband. It appears
that she has changed her statement before the Enquiry
Officer that her husband was taken by Shri Praveen
Kumar and thereby introduced the informer theory.
Since she gave a statement a few: days after the
encounter in which she did not mention the name of Shri
Praveen Kumar, however, after almost 5 years of the;
incident, she decided to mention the name of Shri
Praveen Kumar, it is difficult to establish that the second
statement given 5 years after the incident is: more
authentic. In the report given by the Enquiry Officer, it
has been mentioned that there were rumours /
statements by various people creating an impression
that the death occurred due to encounter involving Delhi
Police. It cannot be ruled out that the witness, who has
suffered the loss of her husband, would be influenced by
the statements of various people and, therefore, come to
a conclusion that Shri Praveen Kumar, who is still
untraceable, was the culprit and the informer of the
police. In my opinion, the statement given by her just
after the incident carries more weight and is more
reliable than the subsequent statement given before the
Enquiry Officer after 5 years of the incident, which
appears to be an afterthought.
The report forwarded by the Commissioner of Police
(page-11 to 13) has clearly brought out glaring
contradictions in the statements of other complainants.
It establishes that the family members have changed
their statements over a period of time, and, therefore,
reliance on them cannot be foolproof. The matter was
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also taken to the Hon’ble High Court of Allahabad
through a Habeas corpus petition filed by Smt. Mahesh
Devi regarding missing of her son Shri Praveen on the
grounds’ that Meerut Police and Delhi Police had
picked up her son Praveen on 05.05.2006 at about 1:00
PM. The petition was dismissed by the Hon’ble High
Court on 12.09.2006.
The Enquiry Officer’s reliance on the informer theory is
not sustainable in view of glaring contradictions in the
statements of various relatives of the deceased.
The Enquiry Officer has expressed dissatisfaction
caused by the stereotype responses of the officials of the
Special Cell. He has observed that responses of all team
members are purely mechanical and fixed without any
individual differences. He has also observed that
surprisingly no police official was injured during the
encounter. Quote –
“Surprisingly, police personnel were first
fired upon by the gangsters who were in
advantageous position at this time and firing
lasted for more than 5 minutes but no one
from police team sustained any injury and
rather one gangster was the only to sustain
critical injuries.”
He has further observed that – “It is very surprising that
there were firings allegedly for more than 20 minutes
between the gang and the police team, 5 members of the
gang got injured critically but no vehicle, no police
personnel sustained any bullet injury and even the scene
also did not had any bullet hit marks except for the few
bullet hit marks exactly at the Bullet Proof Jacket of the
two members of the alleged raid team and the same was
also not sent for forensic examination for establishing
the injury marks to be result of aimed fire from short
distance or from long distance and the angle of hit by
projectile.”
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The observation of the Enquiry Officer that the
responses of the Special Cell officers were stereotyped,
only corroborates the fact that the police officials were
narrating a sequence of events in a manner which was
based on the occurrence of events and was, therefore,
consistent.
Another issue cited by the Enquiry Officer for creating
a reasonable doubt on the intention of the Special Cell
of the Delhi Police to catch the gang members alive
relates to non-deployment towards Khadar side. The
explanation of the police that the police team was
deployed on the road as their intention was to intercept
the gangsters and apprehend them and it was only when
gangsters got down from the vehicle and started firing
at the police team and moved towards Khadar side that
the police team also moved towards Khadar side. It is
always possible in hind sight to come to certain
conclusions. I am inclined to accept the view of the
police that since they did not have any intention to fire
at the deceased as they only wanted to intercept and
apprehend the gangsters, they did not feel the need of
deploying police on the Khadar side.
A perusal of the police report also establishes that the
deceased had criminal background. The report states
that the gang had been involved in 741 cases of murder,
attempt to murder, robbery, dacoity, assault on police
personnel. Arms Act and Gangs Act of UP and Delhi.
The list of FIRs lodged by the police has also been
clearly stated. This clearly establishes that deceased
were dreaded criminals and the police tried .to strike
and apprehend them. Therefore, it is not an
unreasonable, assumption that the police, having got
information of the movement of the gang, made the
sincere effort to apprehend them and subsequent firing
and death of the deceased were not premeditated acts.
The Enquiry Officer has pointed out that – “Cotton swab
samples were not taken from the hand of all deceased
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for forensic examination. The reason for that has not
been clearly spelt out.” A perusal of the report clearly
establishes that cotton swab samples were taken from
the hands of Sanjay, Manoj and Ayub. The result of
forensics certifies the presence of gun powder residue in
the swabs. The failure to take the cotton swab samples
from the hands of other two deceased does not take the
fact away that forensic report clearly establishes
presence of gun powder residue in the cotton swab
samples of other deceased. The Ballistic report
submitted by FSL, Rohini shows that fired cartridges,
which were recovered from the spot, matched with the
weapons recovered from the possession of the deceased
persons. The police report also establishes that police
officers were wearing Bullet Proof Jackets and two
police officers were hit on the bullet proof vests worn by
them and there could have been casualties if all the
police officials were not wearing bullet proof vests.”
xxx
In view of the inconsistencies in the statements of
relatives of the deceased, the track record of the
deceased establishing that they were dreaded criminals
and the lacunas mentioned in my observations above, I
am constrained to recommend that a case for order of
inquiry by the CBl does not appear to be justified. It is
proposed that the MHA may be informed that the need
for granting permission to a further inquiry by CBl is
not called for.”
18. Thus, after considering the detailed report submitted by the DM, the
Hon’ble Lt. Governor arrived at the following conclusions in his decision
dated 31st December, 2012:
● That the stand of Smt. Prabha Devi, who was the wife of Sanjay, was
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after the alleged encounter. However, in her statement, which was
given five years later, she had changed her stand.
● The report also highlighted various contradictions in the statements
of the family members of the deceased;
● The deceased had criminal background and there were 74 cases of
murder, attempt of murder, dacoity, assault on police personnel etc.,
● The intention of the police was to strike and apprehend them;
● The shooting by the police was not a pre-meditative act;
● Cotton swab samples were taken from the hands of the three of the
deceased, which showed the existence of gun residue;
● FSL, Rohini’s ballistic report showed that the fire cartridges were
recovered from the spot, which matched with the weapons being
carried by the deceased;
● Three of the police officials were hit and shot at through bullet proof
vests;
19. Thus, the Hon’ble LG was of the opinion that further inquiry by the
CBI was not required. This decision of the Hon’ble LG was approved by the
Ministry of Home Affairs on 22nd February 2013.
Consideration of the DM’s report and the decisions of the Hon’ble LG and
the MHA, by the NHRC
20. On 29th May, 2013, the Commission considered the report dated 6th
May, 2006, by DCP Special Cell, Delhi and report dated 29th June, 2012 of
the District Magistrate which was forwarded on 18th December, 2018 to the
Delhi Police by the Home Department of the GNCTD.
21. After a perusal of the said reports, the Commission observed that there
were 47 police personnel out of which 2 were inspectors, 12 sub-inspectors,
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6 ASI and remaining were Head Constable and Constables. It was further
recorded that the police might have tampered with the evidence as the
fingerprints on the weapons were not taken to match. Moreover, there was a
specific complaint about picking up of Praveen and Pinku from their residence
on 5th May, 2006. The Commission also observed that the DM recorded the
statements of police personnel and the medical officer who stated that there
were three injuries by a blunt force object on the deceased Sanjay. The
relevant portion of the order dated 29th May, 2013 has been extracted below
for perusal:
“The Divisional Commissioner recorded the statements
of police personnel and the medical officer who
conducted the postmortem. Initially Dr. N.K. Aggarwal
came out with the version that there were no other marks
of physical violence on the person of the deceased
except the different wounds produced by the firearms.
On the repeated occasions also he denied about
existence of other injuries. However, when his
statement-was recorded, it seems that when his attention
was drawn to the postmortem reports, he admitted that
on the person of the deceased Sanjay, there were three
injuries produced by the blunt force object by a lathi or
a stone. On the person of Aslam, injury no. 7 was
described as sign of resistance. Injuries no. 6 and 7 on
his person could have been produced by dragging him
against the ground before his death. Injury no. 7 on the
person of Manoj was caused due to impact of blunt force
as a result of either fall over the hard ground or impact
of lathi. Two injuries on the person of the deceased
Shehzad @ Babu would have been caused on account of
dragging on the hard object like stone ground by
holding his leg or falling over stoned ground.
On the person of Ayub, injury no. 8 could have been
caused by, blunt force both by impact of lathi or stone
or falling over the floor. Thus, it is clear that all theSignature Not Verified W.P.(CRL) 2475/2015 Page 18 of 76
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victims were assaulted before they were hit and killed by
the bullets of the police. Nowhere it is the case of the
police that the victims, after getting down from the
vehicle ran and fell on the hard ground. The non-
explanation of the injuries on the person of all the
deceased that could have been caused by hard blunt
object makes it clear that they were beaten before death.
There are so many other aspects in the matter such as.
i) Who was the owner of the vehicle Tata Sumo?
ii)If there was no number plate on the front side, how,
police doubted the vehicle being the same as
informed by the informer?
iii)According to the police, though it was a dark night
and there were 47 police personnel with weapons,
how could one person easily escape? Apart from this,
how could the police make out in the darkness and
that too from a distance that there were 5-6 persons
sitting in the moving vehicle? The real question is
whether the vehicle was also planted?
There is no mention of recovery of empty cartridges in
any of the documents forwarded to the Commission. The
report from the DCP, Vigilance, does not indicate
recovery of empty cartridges, which was prepared after
three months from the date of occurrence and, therefore,
the story pleaded by the police about the firing is false
and belies the story. If 47 persons were there, there was
darkness and when a signal was given to them from a
distance to stop the vehicle, how the person in the car
could have seen the said signal. It is not said that the
signal was given with the aid of a battery or torch ‘or
red light. Only two persons were in the uniform and,
therefore, the victims could not have identified from a
distance that they are the police personnel. The police
has come out with the version that the bullet fired by one
pf the victims hit the bulletproof jackets of ACP Sanjeev
Yadav and Inspector S.K. Giri. No other police
personnel got injured. There is no report from the expert
to indicate that there were bullet marks on the
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bulletproof jackets. In the absence of such evidence, the
say of the police cannot be accepted.”
22. The NHRC therefore arrived at the following conclusions:
• Non-explanation of injuries on the person of all the deceased could have
been caused by blunt object which makes it clear that they were beaten
before death;
• No mention of recovery of empty cartridges, shows that the story of the
police firing is false;
• Since only two persons were in the uniform, victim could not have
identified from a distance that they are police personnel;
• The story of firing taking place in two rounds, is contrary to the report
submitted by the DCP;
• There is no question of a victim running away as the victims and the
police were opposing each other;
• If the persons were fired as soon as they got down from the vehicle, it
is difficult that they would be away from vehicle. Therefore, story of
the police cannot be believed;
• The Commission also raised certain questions like:-
(a) If there was heavy firing by the victims, how come the policemen
did not sustain any injuries and the movable and immovable objects
also did not got damaged;
(b) If there was no number plate on the front side, how did the police
ascertain that it was the same vehicle as informed by the informer;
(c) How did the police figure out in the darkness that there were 5-6
persons sitting in that moving vehicle;
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• It is further observed that the police officials are not telling the truth
as there was no gunshot residue in the hands of the two out of three
persons who used their weapons;
• The Commission, therefore, came at a conclusion that this is a case of
fake encounter.
23. After, analysing the report of the DM, the NHRC felt that since the
police had not disclosed the correct facts. It issued notice to the Secretary,
MHA as to why, in these facts, monetary relief should not be recommended
for payment to the next of kin. The observation of the Commission in its order
dated 29th May 2013, is set out below:
“In view of what, is stated herein above. Registry to
issue a notice to the Secretary, Ministry of Home Affairs,
Government of India, to show-cause as to why monetary
relief should not be recommended to be paid to the next
of kin of the deceased. Secretary, Ministry of Home
Affairs, Government of India, to submit his response
within a period of six weeks without fail.”
24. The MHA thereafter on 7th November, 2013, observed that all the
deceased persons are involved in more than 74 criminal cases and that the
Delhi Police have proved that the encounter is genuine. Moreover, providing
relief to the next of kin of such dreaded criminals would amount to providing
incentives for such criminal activities. The relevant portion has been extracted
below:
“The matter was got re-examined in detail by the
GNCTD and Delhi Police. From the reports received in
the MHA, it transpires that all the persons who died in
the encounter were involved in more than 74 heinous
criminal cases including murder, attempt to murder,Signature Not Verified W.P.(CRL) 2475/2015 Page 21 of 76
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dacoity, rape while committing robbery and attack on
police party. Further, Delhi Police have amply proved
that the encounter was genuine and there is no need to
provide any monetary relief to the next of kin of the
deceased. It is felt that providing relief to the next of kin
to such dreaded criminals would amount to providing
incentive for such criminal activities and would send a
wrong signal.
3. While there are reasons to believe that the encounter
in question was genuine and since Delhi Police had
acted in a bonafide manner in the incident there seems
to be no ground whatsoever to grant any monetary relief
to the next of kin of the deceased.
4. It is, therefore, humbly requested that Hon’ble NHRC
may kindly take into account the above facts and
circumstances while simultaneously considering this
letter as a reply to the SCN issued by the Hon’ble
Commission vide their letter dated 14th June, 2013 to
this Ministry.”
25. Finally, the Commission vide its order dated 5th February, 2014,
observed that the MHA has not given any justification as to why monetary
relief ought not to be given. The NHRC expressed surprise and as to how the
MHA considered the encounter to be authentic. The Commission also
questioned the MHA as to how monetary compensation will act as an
incentive to the criminals. The Commission then directed payments of sum of
Rs.5 lakhs to the next of kin of Ayoob, Babu, Sanjay, Aslam and Manoj. The
said order dated 5th February, 2014 is relevant and is set out below:
” In response to the Commission’s proceedings of the
30th October 2013, it has been informed by the Ministry
of Home Affairs that it agrees with the view of the
Lieutenant Governor of Delhi that there is no need for a
CBI enquiry in this case. Given this intransigence of the
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Commission reluctantly accepts that a CBI enquiry,
which was essential, will not be held.
The Commission had also asked the Ministry of Home
Affairs to show cause why it should not recommend
relief for the next of kin of the late Ayub, Babu, Sanjay,
Aslam and Manoj, who were killed in this incident. The
Ministry of Home Affairs has responded that the “Delhi
Police have amply proved that the encounter was
genuine”, and there was therefore no justification for
the relief. The Commission considers this an
extraordinary assertion, made without any mooring in
facts. It is unable to understand how the Ministry of
Home Affairs claims that the Delhi Police has managed
to prove that the encounter was genuine.
The Ministry has put forward the absurd argument that
“providing relief to the next of kin of such dreaded
criminals would amount to providing incentive for such
criminal activities and send a wrong signal”. The
Commission reminds the Ministry that the only criminal
activity that has been plausibly established in this case
is the murder of five men by policemen appointed to
uphold the law, not to break it.
Secondly, the relief being provided, as the Ministry
acknowledges, is to the next of kin of men who were
killed. The Commission fails to understand how this
would be an incentive to criminals. If the relief is an
incentive, from the Ministry’s argument it would follow
that more criminals would allow themselves to be
executed by the police, in the hope that their families
might receive some relief thereafter, The Commission is
therefore unable to accept the specious arguments put
forward by the Ministry of Home Affairs. It maintains
that a grievous violation of human rights was
committed, for which the Government of India should
make reparations. It therefore recommends that Rs. 5
lakhs each be paid to the next of kin of the late Ayub,
Babu, Sanjay, Aslam and Manoj.
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Proof of payment will be expected by the 17th April,
2014.”
26. In the present petition the stand of the Petitioner is that no CBI inquiry
has been conducted till date and neither compensation has been given to the
legal heirs of the deceased person, as directed by the NHRC vide its order
dated 5th February, 2014. The prayers in the petition read as under:
“i) directing Respondent nos. 2 and 3 to forthwith give
their concurrence to a CBI enquiry into the alleged
encounter killing of six / five persons on 5 May 2006 as
aforesaid;
ii) directing Respondent no. 2 to forthwith order a CBI
enquiry into the alleged encounter killing of six / five
persons on 5 May 2006 as aforesaid;
xxx
vi) directing the respondents to forthwith pay the
compensation of Rs.5 lakh to the legal heirs of Mr.
Manoj (as well as to each the legal heirs of the other
deceased persons) as already ordered by the NHRC as
well as to the legal heir of Mr. Praveen who has been
missing since the said alleged encounter along with
interest thereon @18% pa with effect from 17th April
2014 when the payment was so ordered by the NHRC;”
27. On 30th October, 2015 notice was issued and accepted by Respondent
No.2 and Respondent No.3. However, Respondent No.1 i.e., NHRC was not
issued notice. On 4th November, 2015, after considering that the presence of
Govt of NCT of Delhi would be proper and necessary to adjudicate the present
petition, Govt of NCT of Delhi was impleaded as Respondent No.4.
28. On 20th September, 2018, ld. Counsel for Respondent No.2 stated on
instructions that the Ministry of Home Affairs do not oppose an investigation
by the CBI. The counsel for Respondent No.2 further stated that the Ministry
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of Home Affairs itself recommended a CBI inquiry be conducted. The
relevant portion of the said order is extracted below:
“Apropos prayer nos. 1 to 5, the learned counsel for
respondent no.2/Ministry of Home Affairs has no
objection. He states, upon instructions, that the
Ministry of Home Affairs does not oppose the
aforesaid reliefs i.e. an investigation by the CBI into
the alleged encounter deaths of certain persons. The
proceedings dated 05.02.2014 before the NHRC reads
as under:-
xxxx
The learned counsel for respondent no. 2 states, upon
instructions, that indeed the Ministry of Home Affairs
itself recommended that the CBI inquiry be conducted
and that even today they stand by the said
recommendation.”
29. The above statement of the ld. Counsel for Respondent No.2 was then
sought to be withdrawn on 19th September, 2024, by highlighting an affidavit
which was filed by the MHA on 30th November, 2015 as per which a CBI
inquiry is not required in the present matter as all the deceased persons were
involved in more than 70 cases. The ld. Counsel also submitted that the above
stated submission was not upon instructions of the MHA and that ld. Counsel
has made a wrong submission.
“8. The Ministry had already conveyed the stand to
NHRC that there is no need for granting permission to
a further enquiry by CBI and also opposed for granting
of Rs. 5 lakh to the NOK of the deceased as the
encounter made by Delhi Police was genuine as all the
persons who had died in the encounter were involved in
more than 74 heinous criminal cases against them
including murder, attempt to murder, dacoity, rape,
while committing robbery and attack on Police Party.”
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30. Meanwhile an SLP bearing no. 12350/2022 was moved by the
Petitioner before the Hon’ble Supreme Court initially for hearing the matter.
The Supreme Court vide order dated 2nd January, 2023 observed that since the
matter is being considered by High Court, the Hon’ble Court would not like
to intervene and the matter be disposed of in accordance with law in a time
bound manner. The relevant portion of the Hon’ble Supreme Court order is
extracted below:
“Having heard the learned counsel for the petitioner,
we do not propose to intervene in the matter at this
juncture, since the Writ Petition is pending before the
High Court.
However, we take note of the grievance put forth by the
petitioner that the Writ Petition is of the year 2015
whereunder he has sought for the relief. In that view, we
request the High Court to take up the writ petition for
consideration on an early date-and dispose of the same
in accordance with law.”
31. Thereafter, on 10th April, 2023, an application for early hearing of the
matter was again listed before the Supreme Court. The Supreme Court again
reiterated the direction to decide the matter expeditiously in accordance with
law. Thereafter, on 8th July, 2024, submissions commenced in the matter
before the present bench.
Submissions
32. Submissions on behalf of the Petitioner have been addressed by ld.
counsel Mr. Saurabh Prakash:
i. The first and foremost submission is that the NHRC has given
guidelines on 29th March, 1997 as to the manner in which the Union
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modified on 02nd December, 2003, wherein it is categorically
directed in the guidelines that a magisterial inquiry ought to be held
in all cases of death during police action.
ii. According to Mr. Prakash, the incident has been repeatedly brushed
under the carpet by not ordering an independent and impartial
inquiry. Initially the NHRC had recommended an independent CBI
inquiry which was opposed by the Delhi Police. The said
recommendation dated 26th September, 2012 is relied upon by him.
Thereafter, on final recommendation dated 05th February, 2014, the
NHRC orders that it does not have the power under the Act and only
compensation of Rs. 5,00,000/- was awarded.
iii. The submission of ld. counsel is that initially, an FIR was registered
and the matter proceeded before the concerned Magistrate. In the
said FIR, it is said that the deceased belonged to a criminal gang –
Ayub and Aslam gang and some information was received about
their travel in Delhi. The deceased were driving a Tata Sumo and
were allegedly carrying sophisticated weapons. A large number of
police persons were also present. The allegations in the FIR were
that the persons who were present in the vehicle started firing
resulting in cross-firing which led to the death of 5 persons and one
absconder.
iv. Learned counsel relies upon the document, which was obtained
from the NHRC which captured all the proceedings before the
NHRC. Reference is made to order dated 25th February, 2008,
wherein the commission records the inception of the proceedings
before the NHRC due to complaint sent by one Shri Jamil, statingSignature Not Verified W.P.(CRL) 2475/2015 Page 27 of 76
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that his son Aslam was picked up by police in Bulanshahr and was
killed in fake encounter in Delhi. The said order also records that a
communication was received on 24th December, 2007 from the
Delhi Police where it was claimed that the final report has been filed
before the Court and in the said letter it was also communicated that
there was no Magisterial inquiry needs to be conducted in the
encounter.
v. The NHRC asked the Delhi police to explain as to why guidelines
in the communication dated 02nd December, 2003 were not
complied. The matter thus continued to proceed before the NHRC.
At this stage, the Hon’ble Lt. Governor is stated to have taken a
position that magisterial inquiry would serve no purpose as captured
in the letter dated 23rd January, 2009 issued by Deputy Secretary
(Home) GNCTD. This letter was then placed before the Magistrate.
According to ld. counsel, police official who was appearing before
the Magistrate did not place true facts and mislead the court.
vi. It is also argued that as recorded on 4th April, 2009, the Police took
a position before the Magistrate that NHRC has finally disposed of
the matter. Thereafter, however, the Magistrate directed the letter of
the Hon’ble LG to be placed on record, vide order dated 27th
October, 2009. Finally, on 25th March, 2010, the Magistrate put the
following questions to the Police Official – Inspector Manoj Dixit:
“1. What is response of NHRC to letter dt. 23.01.09
written by Dy Secretary Home.
2. What ATR has been filed on behalf of CP, Delhi
in terms of letter dt. 30.04.09 written by Assistance
Registrar Law to NHRC.
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3. Whether investigation in the present case was
conducted by independent investigation agency as
per guidelines of NHRC.
4. Whether any complaint was filed on behalf of
relatives of deceased and if yes then their result (in
terms of guidelines of NHRC).
5. Whether officials of Delhi Police have been
exonerated by Hon’ble High Court of Allahabad in
Habeous Corpus Petition filed by Smt. Mahesh.”
vii. In the meantime, the NHRC also passed its order dated 15th July,
2010 giving scalding findings against the Police and directing an
inquiry by the District Magistrate, North East Delhi. The DM’s
report is thereafter placed by the ld. Counsel and various findings
are highlighted therein;
viii. The conclusion of the Magistrate is at page 125 which clearly
records that the Magistrate was of the opinion that there is a
sufficient doubt about the genuineness of the encounter. Various
observations were also made by the Magistrate in respect of the
delay in conduct of the inquiry. The Magistrate also came to the
conclusion that the Police was not clearly coming out with the true
facts and the officials of the Delhi Police were liable for criminal
prosecution. Some of the observations made by the Magistrate were
that the entire incident was itself puzzling as there was no injury to
the Police personnel. The bulletproof jackets which are claimed to
have suffered bullets from the firing by the deceased were also not
submitted for forensic examination. Inspector Manoj Dixit
thereafter furnished his reply to the queries put by the Magistrate
on 27th August, 2012. The same are set out below:
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“1. The letter Dt. 23/01/09 written by Deputy
Secretary Home on behalf of worthy LG, Delhi has
been accepted by the commission and there is no
further query on behalf of NHRC in this regard.
2. As per the commission there are two references
i.e. Case no. 3718/24/2006-2007 and Case no.
637/30/2006-2007 pertaining to the encounter in
the present case. The Case no 3718 relates to the
missing of Parveen, son of the complainant Smt.
Mahesh w/o Gangaram r/o Meerut, UP. Whereas
Case no. 637/30/2006-2007 relates to the
encounter of Ayub and others. A letter was written
to NHRC regarding the outcome of enquiry
pertaining to both the references. The reply of the
commission is attached herewith for your kind
perusal please. The references no. 3718 does not
relate to encounter. The matter was directed to
Chief Secretary, UP and DGP, UP to submit reply
to the show cause notice dt. 22/07/08 further the
commission has asked the DGP, UP to take action
against the concerned police officers who had not
registered the missing report of the complainant
which amounted to omission from the duty along
with supervisory failure of the then SSP,
Meerut. With regard to the reference no.
637/30/2006-2007 relating to the encounter the
commission had directed the Commissioner of
Police, Delhi regarding the Magisterial enquiry to
be conducted to which the letter dt. 23/01/09
written by Dy. Secy. Home was sent to NHRC on
behalf of worthy LG, Delhi. All the relevant
documents i.e. inquest, PM reports and final
untraced report have been sent to the commission
as demanded.
3. The investigation in the present case has been
conducted by independent investigation agency i.e.
by Police Station Khajuri Khas as per theSignature Not Verified W.P.(CRL) 2475/2015 Page 30 of 76
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guidelines of NHRC and the local police have no
connection with Special Cell whatsoever.
4. The wife of deceased Sanjay i.e. Smt Prabha
Jatav and father of deceased Aslam had filed
complaints in NHRC regarding the encounter but
they had filed their complaints after the incident
appeared in the electronic and the print media i.e.
on 07/05/06 the reply to the complaints has been
submitted to the commission and there is no further
query in this regard.
5. The official of Delhi Police have been
exonerated by the High Court, Allahabad in the
Habeas Corpus Petition No. 30454 of 2006, Smt
Mahesh Vs State of UP and others, filed by Smt
Mahesh and the Hon’ble Court was pleased to
dismiss the writ petition. Copy attached.”
ix. The NHRC, vide its report and order dated 26th September, 2012
directed that the matter ought to be referred to the CBI for proper
and impartial investigation.
x. However, despite this position, the Commissioner of Police, on 3rd
November, 2012 recommends that the matter deserves to be closed.
The relevant portion of the order passed by the extant
Commissioner at that time is extracted below:
“In the meantime, NHRC passed an order for
magisterial enquiry on 26.7.2010 on the complaint
of Shri Jamil and the same was entrusted to Shri
Vijay Dev, the then Divisional Commissioner of
Delhi. The enquiry was conducted after four years
of the incident and a report submitted after two
years of enquiry. The magistrate has cast doubt on
the police action by finding faults in the
investigation of the case. For instance, failure to
examine call data record can not be construed to
cast doubts on the police operation. Further, theSignature Not Verified W.P.(CRL) 2475/2015 Page 31 of 76
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police is not bound to disclose the identity of the
informer u/s 125 Indian Evidence Act. Without any
disrespect to the Magistrate, who conducted the
enquiry, it has to be said that the enquiry report
has inaccuracies in his report which mentions
killing of 6 persons namely Ayub, Babu, Sanjay,
Aslam, Shahzad and Manoj on the cover page as
well as in the second paragraph on page 2 of the
report. Actually, only 5 persons had died in the
police operation
I am enclosing a report from Shri Sanjiv Kumar
Yadav, DCP/Special Cell, which is self-
explanatory. It rebuts the various the conclusions
arrived at by the magisterial enquiry ad-seriatim. I
have considered the report carefully and am
satisfied with the bona fides of the police action. I
recommend that the matter deserves to be closed.
No useful purpose would be served by dragging it
any further thereby demoralizing the police
officers, who were only performing their lawful
duty in taking on dangerous criminals.”
xi. Ld. Counsel points that the Commissioner proceeds on the basis that
the deceased were dangerous criminals.
xii.Subsequent, to the report of the Commissioner directing closure, the
National Human Rights Commission (NHRC) again considered the
matter. In its order dated 29th May, 2013, the NHRC records that
initially it had directed the CBI to urgently conduct an inquiry into
the incident and Ministry of Home Affairs (MHA) was also asked
to issue appropriate directions to the CBI. At that stage, the NHRC
was expecting the GNCTD to give its consent to the inquiry,
however, it noted that the Government did not express desire to get
the matter inquired by the CBI. It expressed surprise on the said
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issue as there was according to the NHRC ample material on record
on the basis of which it could be said that the encounter by the
Special Cell of the Delhi Police was fake. The relevant paragraphs
of the NHRC’s observations reads as under:
“Considering the inquiry report, the Commission
asked the CBI to urgently conduct an inquiry into
the incident. The Ministry of Home Affairs,
Government of India, was asked to issue
appropriate directions to the CBI. The Commission
was expecting that the Government of NCT of
Delhi will give its consent to the inquiry. However,
it is surprising that the Government has no desire
to get the matter thoroughly inquired by the CBI.
Why such attitude is being adopted? Though, there
is ample material on record on the basis of which
it can be said that the encounter by the Special Cell
of the Delhi Police is fake. There is even more
record to prove the farce of the investigation which
was conducted by the District Police of North-East
district. There are substantial evidences against
the story of real police encounter put forth by the
Special Cell of the Delhi Police.”
xiii. The NHRC then analysed the various physical injuries suffered
by the deceased in terms of the post mortem report which was
accepted by the doctor (Dr. M.K. Aggarwal) whose statement was
recorded. The NHRC also analysed other aspects, for which the
Delhi Police did not have sufficient proof, relating to the presence
of 47 police personnels with weapons despite which one gang
member escaped, the aspect is as to whether the vehicle Tata Sumo
was itself planted, no evidence of shooting by the accused, no marks
or impression on the bulletproof jackets. After considering these
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facts, the NHRC came to the conclusion that the police was not
revealing the truth and a declaration was given that it is a case of
fake encounter. The relevant paragraph of the order dated 29th May,
2013 is set out below:
” The story narrated by the police is that all the
six persons alighted from the vehicle and opened
fire indiscriminately and the police opened fire in
self-defence. Later on police has changed the story.
Three persons were killed first and after some
passage of time another two persons were killed
and one managed to flee. The three persons must
not be a party to this encounter. They must have
left the vehicle from the left side door. This can be
said that they did not open fire at the police and,
therefore, the gunshot residue is absent on the
hands of two persons. This story is again required
to be examined in view of the fact that all the five
sustained bodily injuries on account of force.
Therefore, police is not telling the truth I about the
manner in which the incident took place. It is out
of question that three persons used their weapons
as on the hands of two there was no gunshot
residue and the one ran away. From all this, it
appears that the police is not telling the truth about
the manner in which the incident commenced and
ended. Under these circumstances, the theory
propounded by the police, cannot be accepted and
it is a case of fake encounter.
In view of what, is stated herein above.
Registry to issue a notice to the Secretary, Ministry
of Home Affairs, Government of India, to show-
cause as to why monetary relief should be
recommended to be paid to the next of kin of the
deceased. Secretary, Ministry of Home Affairs,
Government of India, to submit his response within
a period of six weeks without fail.”
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xiv. As can be seen from the above order after concluding that the
entire incidence is a fake encounter the NHRC issued a notice to the
Secretary, MHA as to why monetary relief ought not to be granted to
the deceased after some proceedings, the NHRC vide its order dated
5th February, 2014 awarded compensation of Rs.5 lakhs to the next of
kin. The relevant portion of the said order is set out below:
“In response to the Commission’s proceedings of
the 30th October 2013, it has been informed by the
Ministry of Home Affairs that it agrees with the
view of the Lieutenant Governor of Delhi that there
is no need for a CBI enquiry in this case. Given this
intransigence of the authorities concerned, which
it deplores, the Commission reluctantly accepts
that a CBI enquiry, which was essential, will not be
held.
The Commission had also asked the Ministry of
Home Affairs to show cause why it should not
recommend relief for the next of kin of the late
Ayub, Babu, Sanjay, Aslam and Manoj, who were
killed in this incident. The Ministry of Home Affairs
has responded that the “Delhi Police have amply
proved that the encounter was genuine”, and there
was therefore no justification for the relief. The
Commission considers this an extraordinary
assertion, made without any mooring in facts. It is
unable to understand how the Ministry of Home
Affairs claims that the Delhi Police has managed
to prove that the encounter was genuine.
In 2003, the Commission issued guidelines to all
States to hold magisterial enquiries in the
aftermath of any encounter in which there was a
loss of life. All State Governments have accepted
these guidelines and act on them. The egregious
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apprehensive of any impartial scrutiny of its
actions, opposes magisterial enquiries and has an
extraordinary veto on these decisions.
This self-serving evasiveness of the Delhi Police is
supported by the Union Ministry of Home Affairs,
though it is the nodal Ministry for the protection of
human rights in India. This is a sad reflection on
the Delhi Police and on the Ministry’s
understanding of its responsibilities on human
rights.
In this case, as usual, no magisterial enquiry was
held. The Commission therefore had to use its
powers u/s 13(1)(e) of the Protection of Human
Rights Act to direct the District Magistrate, North
East Delhi, to conduct an enquiry. This enquiry,
diligently conducted by a senior officer of the
Government of the National Capital Territory of
Delhi, recommended that a CBI enquiry be carried
out, having come to the conclusion that
“There is ample material on record which creates
reasonable doubt about the genuineness of the
encounter by the special cell of the Delhi Police.
There is even more record to prove the farce of the
investigation which was conducted by the District
Police of the North East District.”
Neither has the Delhi Police answered any of the
points raised by the Commission. It is a travesty,
therefore, for the Delhi Police and the Ministry of
Home Affairs to claim that it has been proven that
the encounter was genuine.
The other claim made by the Ministry of Home
Affairs is that the persons who were killed had
serious criminal records. The Commission reminds
the Ministry that, under the law, criminals cannot
be summarily executed. It was for the police to
establish that these men were killed in the exercise
of the right of self-defense. This they failed to do.
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The Ministry-has put forward the absurd argument
that “providing relief to the next of kin of such
dreaded criminals would amount to providing
incentive for such criminal activities and send a
wrong signal”. The Commission reminds the
Ministry that the only criminal activity that has
been plausibly established in this case is the
murder of five men by policemen appointed to
uphold the law, not to break it.
Secondly, the relief being provided, as the Ministry
acknowledges, is to the next of kin of men who were
killed. The Commission fails to understand how
this would be an incentive to criminals. If the relief
is an incentive, from the Ministry’s argument it
would follow that more criminals would allow
themselves to be executed by the police, in the hope
that their families might receive some relief
thereafter.
The Commission is therefore unable to accept the
specious arguments put forward by the Ministry of
Home Affairs. It maintains that a grievous
violation of human rights was committed, for which
the Government of India should make reparations.
It therefore recommends that Rs. 5 lakhs each be
paid to the next of kin of the late Ayub, Babu,
Sanjay, Aslam and Manoj.
Proof of payment will be expected by the 17th April,
2014.”
xv. Ld. Counsel for the Petitioner submits that even this amount has not
been paid till date. He makes reference to Section 18 of the
Protection of Human Rights Act, 1993 as per which the steps
prescribed during and after inquiry to be taken by the NHRC are set
out. He relies upon an extract from the website which is titled as
“from the editor’s desk” which would show that the NHRC is
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functioning with various challenges. Thus, the final prayer on behalf
of the Petitioner is two-pronged:
a. One that a CBI inquiry ought to be conducted in the matter
despite the delay since the time of incident.
b. Secondly, that compensation ought to be awarded.
xvi. He also highlights the fact that the DM’s report was not placed
before the ld.MM and the police have sought to give a mistaken
impression to the Magistrate that the NHRC proceedings have been
concluded while they are clearly pending.
xvii. Mr. Saurabh Prakash, ld. Counsel also highlights order of this
Court dated 20th September, 2018 wherein the MHA has made a
categorical assertion before the Court that it does not oppose an
investigation by the CBI. However, this position having been taken
in Court as recorded in the order, the MHA has thereafter chosen to
resile from the same and file an affidavit to the contrary.
33. Submissions on behalf of the Ministry of Home Affairs:
i. Mr. Anil Soni, ld. Counsel appearing for the MHA has relied upon
the counter affidavit which was filed by him dated 30th November,
2015 as per which the statement recorded on 20th September, 2018
is without any instructions. In the affidavit of 30th September, 2015,
the first stand of the MHA is that the petition needs to be treated like
a PIL.
ii. It is also stated in the said counter affidavit which is deposed by the
then Under Secretary, MHA that when the NHRC directed the CBI
inquiry, the Hon’ble Lieutenant Governor, Delhi at that time had
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inquiry by the CBI as there are no ample evidence for corroboration
as per the DM’s report.
iii. Finally the matter was to be put before the competent authority in
the MHA who had then decided to accept the view of the Hon’ble
Lieutenant Governor which was communicated to the NHRC. Thus
in effect, the Ministry had taken a position that there was no further
inquiry required by the CBI and hence according to the Ministry,
the statement recorded on 20th September, 2018 in Court is contrary
to its affidavit. Subsequently, a further affidavit has been placed on
record by the MHA dated 27th October, 2022 which is again
deposed by the Under Secretary, MHA wherein it is stated as under:
“4. That the Ministry has not issued any such
instructions recommending that CBI inquiry be
conducted in the said case as pleaded by the then Ld.
Counsel for the respondent No. 2 (Ministry of Home
Affairs) and that has been recorded in the order dated
20.09.2018 of Hon’ble High Court of Delhi. It is
further stated that the stand of this Ministry has
already been made clear in the affidavit since filed by
the Ministry and this Ministry stands by the same.
5. That since no arguments had taken placed in this
matter for some time and also no affidavit from the
side of the Ministry of Home Affairs explaining its
view point of in the matter.”
34. Thus, the MHA’s position is that it supports the Delhi Police, however,
on a query it has been clearly submitted that the NHRC’s order dated 29th
May, 2013 has not been challenged either by the MHA or by the Delhi Police.
Submissions on behalf of Delhi Police
35. Submissions on behalf of Mr. Dayan Krishnan, ld. Senior Counsel
appearing on behalf of Respondent No.3-Delhi Police, are as under:
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i. Firstly, ld. Senior Counsel submits that the scope of this petition
ought to be looked at in the context of the order passed by the NHRC.
He has referred to the prayers to argue that in prayer 1 and 2, consent
is being sought for referring the matter to the CBI. In prayer 3, 4 and
5, a general direction is sought as to how Central and State
Governments ought to treat the orders passed by the NHRC. Prayer
6 and 7 relate to non-payment of the compensation already awarded
by the NHRC and for payment of further compensation.
ii. It is highlighted by ld. Senior Counsel that in the final order of the
NHRC, though reluctantly, the NHRC has not directed a CBI
inquiry. In earlier orders it sought to do so. The NHRC having itself
not found it favorable in the final order to direct a CBI inquiry, the
question of issuance of consent does not arise in the present case.
iii. It is further highlighted that under Section 18 of the Protection of
Human Rights Act, if the NHRC issues a direction which is not
complied with, the NHRC is fully empowered to approach the
Supreme Court or the High Court for appropriate directions, orders
or even writ petitions.
iv. Ld. Senior Counsel states that it is common knowledge that the
NHRC does approach Courts seeking such directions whereas none
has been sought in the present case. Under Section 12(a), the NHRC
has vast powers which include inquiry suo-moto into any complaint
or any incident, intervening in any proceedings involving violation
of human rights and various other powers listed from (a) to (j) of
Section 10, which shows that the powers of the NHRC are vast and
wide.
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v. Since the NHRC exercises powers like a Civil Court under Section
13, what is important is the operative portion of the NHRC order and
not any other observations which may have been made in an order.
The NHRC’s directions were duly complied with and two levels of
considerations were awarded to this incident, which are as under:
(a) The Commissioner of Police looked into the matter and
the said report of the Commissioner was then sent to the
Home Ministry. The Commissioner’s report was then
accepted by the competent authority.
(b) In the second level, the matter travelled through the LG till
the Home Ministry.
36. Therefore, on both occasions, there has been adequate consideration,
which has been afforded to the incident and to the observations of the NHRC.
vi. After these two levels of consideration were done, while NHRC
expressed its disappointment, it merely awarded compensation of
Rs. 5 lakhs each. Thus, even a petition by the NHRC would not be
liable in this case as the final order does not contemplate a CBI
inquiry.
vii.It is conceded that neither the Delhi Police nor the Union of India
had challenged the award of compensation in the present case.
Since, the NHRC itself has stated that no CBI inquiry is to be held.
The prayer for referring to the CBI or giving consent for referring
to the CBI does not arise.
viii. The NHRC has neither sought any reference to the CBI nor has
sought enforcement of the order of compensation which has been
passed.
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ix. Mr. Krishnan, ld. Sr. Counsel points out that under Section 13(i)(e),
the NHRC has powers to issue commissions like Civil Courts. He
gave reference to the DM for submitting a report was therefore in
the nature of an order under Section 13(i)(e). The said report having
been submitted by the DM could only be a fact-finding report
insofar as the NHRC is concerned. The DM’s report does not have
any binding force on the NHRC and neither could the DM have
given any conclusions or findings.
x. Thereafter, the report of the Commissioner of Police dated 3rd
November, 2012, in fact, sets out the entire incident which has taken
place and concludes that the Commission is fully satisfied with the
bona fides of the police action and that the matter deserved to be
closed. In the background of this report, the recovery of a substantial
quantum of weapons is recorded. The dismissal of the habeas corpus
petition has been noted as also the magisterial inquiry which was
conducted four years after the incident and the report was submitted
two years after the said inquiry.
xi. The Police had, in fact, filed its incident report before the NHRC
vide its communication dated 6th May, 2006 wherein details have
been given as to the manner in which the incident took place. In the
said report, the total number of cases which were pending against
various members of the Aslam Gang have been recorded which
would show that there are four cases of murder, 11 cases of attempt
to murder, 14 dacoits, 17 robbery, 3 NDPS Act, 3 housebreaking
and theft cases and 18 under the Arms Act. This, in fact, justified
the attempt by the Police to nab the accused as they were well
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armed. The NHRC, after the incident report had on 29th May, 2013
asked the MHA to reconsider the decision as to why monetary relief
should not be awarded.
xii.Mr. Dayan Krishnan, ld. Sr. Counsel has highlighted that there is no
inadvertence in the grounds or in the prayer filed by the Petitioner
setting aside the impugned order, wherein the prayer is sought by
the Petitioner. In fact a perusal of grounds also reveal that the same
proceed on the presumption that the direction for CBI inquiry has
been approved by the NHRC which it has not.
He further submits that if the Petitioner was aggrieved by the
impugned order of the NHRC, the prayer ought to have been for
setting it aside and for seeking a proper inquiry. The NHRC has not
recommended any inquiry under Section 18B. In fact, initially the
NHRC gave a prima facie view pursuant to which various
authorities including the Delhi Police, the Chief Secretary, GNCTD,
the Lieutenant Governor and the MHA have looked into the matter.
xiii. The NHRC thereafter considered the stand of the MHA. In the
impugned order, the NHRC expresses displeasure against the stand
of the authorities but does not in fact disagree with the same. It
changed its recommendation from initial prima facie
recommendations and thus there is no order for an inquiry as on
today. The NHRC is not exercising powers under Section 156(3) of
the Cr.P.C. and since there are factual aspects involved, the same
ought not to be gone into in writ jurisdiction. The perusal of the
Chief Secretary’s opinion at Page 325 would show that the authority
has actually considered in detail various facts and has also given the
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reasoning as to why no inquiry would be required. Reliance is
placed upon the report of the Inquiry Officer, which records the fact
that there were 74 cases pending against the deceased persons.
xiv. Further, it is noted that the doctor’s report confirms that there
was gun powder on some of the hands of the deceased. The doctor’s
report also shows that the deceased were walking on uneven terrain
while simultaneously shooting at the Police. Three Police Officials
who were wearing bulletproof vests were hit on the said vests and
there was a possibility of police officials themselves succumbing if
they were not wearing the said vests.
xv. The Chief Secretary also notes that the deceased were part of a
gang and there were several FIRs against the said deceased persons.
Under Section 18, the NHRC is duly empowered to either:
a) order compensation,
b) initiate proceeding for prosecution or also direct any other
action which it deemed appropriate.
37. The closure of the case could have been challenged which has not been
challenged by the Petitioner. The Petitioner’s version of facts cannot be
accepted in writ jurisdiction. The inquiry having been done by the NHRC, it
was an independent inquiry, which ought not to be faulted.
38. Mr. Dayan Krishnan, ld. Sr. Counsel was trying to contrast the
observations of the NHRC in the initial order dated 29th May, 2013 and in the
final order. In the initial order, the NHRC clearly observes that there is
difficulty in accepting the case of the Police that it was a fake encounter. The
reply to the reconsideration letter was given by the Delhi Police on 7th
November, 2013. The same is duly considered and thereafter the NHRC has
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changed its recommendation. In the said letter, the stand of the Delhi Police
is that it was a genuine encounter. Once the NHRC accepted that there was
to be no CBI inquiry, the said aspect having not been challenged it has attained
finality.
39. Moreover, the NHRC itself is of the opinion that under Section
13(1)(e), it had directed the District Magistrate, North East Delhi to conduct
an inquiry and an independent agency having looked into the whole matter,
no useful purpose is served if the CBI investigation is directed at this stage.
40. The impugned order dated 5th February, 2014 is then referred to, in
order to argue that the proceedings have attained finality and only
compensation has been awarded. Under such circumstances, the Petitioner
lacks any standing to seek at this stage any inquiry let alone a CBI.
41. Rejoinder submissions made by the Petitioner:
i. Mr. Saurabh Prakash, ld. Counsel for the Petitioner has made his
rejoinder submissions. It is his case that the prayers in the writ
petition are sufficient to even order a CBI inquiry. At this stage, ld.
Counsel for the Petitioner submits that the essence of the writ
petition though not worded aptly is for the reference of the incident
to the CBI for an independent inquiry.
ii. Reliance is placed upon the paragraphs 12 & 13 and the writ
petition’s prayers 1 and 2. He further submits that the Madras High
Court in its decision in Abdul Sathar v. The Principal Secretary to
Government & Ors., [W.P.Nos.4179/2006 & connected, decided
on 05th February, 2021] has held that the recommendations of the
NHRC are binding upon the Central Government. In fact, the
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powers to NHRC. The SLP against the said judgment is pending.
It is Mr. Prakash’s submission that both the prayers i.e., for CBI
inquiry and for compensation are liable to be allowed.
iii. Ld. Counsel also highlights the fact that after the NHRC’s order, the
Hon’ble Lt. Governor has also directed that a magisterial inquiry
shall be conducted by the DM, Delhi. This was not merely an
inquiry made under the Human Rights Act but was a broader inquiry
directed by the Competent authority. The findings of the said
inquiry, therefore, be considered by this Court.
iv. Further, the direction to pay compensation ought to have been
complied by MHA/Delhi Police. However, no compliance has been
recorded. In fact, the NHRC has gone to the extent of closing the
case vide order dated 1st November, 2016 after the writ petition was
filed. Thus, on both counts, the Petitioner has been deprived of any
justice.
v. An additional affidavit on behalf of the Petitioner is relied upon by
ld. Counsel to argue that the parents of the deceased are still alive
and both the daughters are being taken care of by the paternal
grandparents. The wife of the deceased has already left the family.
Both the daughters are studying. One is studying B.A. in IGNOU
and the second daughter is studying in 10th standard. The
compensation ought to, therefore, be divided in favor of both the
daughters and mother of the deceased equally.
vi. The compensation payable should also be paid along with 18%
interest, inasmuch the family has been deprived of proper living
conditions and as the only bread earner has passed away. The prayerSignature Not Verified W.P.(CRL) 2475/2015 Page 46 of 76
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also includes directions for CBI inquiry and for grant of further
compensation.
42. Reliance is also placed upon the judgment of the Supreme Court in
PUCL v. State of Maharashtra, 2014 (10) SCC 635 which prescribes the
procedure for holding inquiry. Paragraph 31 is relied upon.
Analysis and Findings
43. As can be seen from the above narration and events, the NHRC though
initially directed a CBI inquiry into the matter, thereafter, however, finally
vide order dated 5th February, 2014, directed payment of compensation of Rs.5
lakhs each to the next of kin of the deceased.
44. There can be no doubt that the allegation of a fake encounter is a very
serious allegation. The incident in the present case took place in 2006, almost
20 years ago. Several complaints came to be filed before the NHRC, which
led to multiple authorities looking into the matter. The DM initially found
various lacunae in the investigation conducted by the police and
recommended a CBI inquiry, which was accepted by the NHRC in its order
dated 26th December, 2012.
45. However, thereafter, the DM’s report which was conducted, was put up
before the Hon’ble Lt. Governor. The reasoning given in the decision taken
by the Hon’ble Lt. Governor on 31st December, 2012 has been considered by
the Court. The said decision has looked into the assessment in the report by
the Delhi Police as also the DM’s Inquiry and has not accepted the report of
the Magisterial Inquiry based upon the evidence including the contradictions
in the statements of the family members, forensic evidence, ballistic reports
etc. There can be no doubt that the NHRC is duly empowered under the Act
to direct the proper inquiry into the matter whenever it finds that there is
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severe abrogation of human rights. Specifically, certain guidelines have been
issued by the NHRC to be followed in the police encounter as set out in the
communication written by the then Chairman Justice M.N. Venkatachaliah on
29th March, 1997 along with revised guidelines of 2nd December, 2003. The
said guidelines are detailed in nature and have been reiterated from time to
time including certain recommendations made on 12th May, 2010.
46. As per the scheme of NHRC Act, the NHRC has both suo motu power
to initiate inquiries and also to inquire into complaints or petitions filed before
it. Section 12 of the Protection of Human Rights Act, 1993 (hereinafter ‘HR
Act’) sets out in detail the functions of the Commission. Section 13 also vests
in the NHRC power of a Civil Court while conducting inquiries. Section 14
empowers the NHRC to utilize services of any officer or investigation agency
of the Central or State Government for the purpose of conducting
investigation. The relevant sections are extracted hereinbelow:
Section 12. Functions of the Commission
“The Commission shall perform all or any of the
following functions, namely:–
(a) inquire, suo motu or on a petition presented to it
by a victim or any person on his behalf 1 [or on a
direction or order of any court], into complaint of–
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by
a public servant;
(b) intervene in any proceeding involving any
allegation of violation of human rights pending before a
court with the approval of such court;
2
[(c) visit, notwithstanding anything contained in
any other law for the time being in force, any jail or
other institution under the control of the State
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Government, where persons are detained or lodged for
purposes of treatment, reformation or protection, for the
study of the living conditions of the inmates thereof and
make recommendations thereon to the Government;]
(d) review the safeguards provided by or under the
Constitution or any law for the time being in force for
the protection of human rights and recommend
measures for their effective implementation;
(e) review the factors, including acts of terrorism,
that inhibit the enjoyment of human rights and
recommend appropriate remedial measures;
(f) study treaties and other international instruments
on human rights and make recommendations for their
effective implementation;
(g) undertake and promote research in the field of
human rights;
(h) spread human rights literacy among various
sections of society and promote awareness of the
safeguards available for the protection of these rights
through publications, the media, seminars and other
available means;
(i) encourage the efforts of non-governmental
organisations and institutions working in the field of
human rights;
(j) such other functions as it may consider necessary
for the promotion of human rights.”
Section 13. Powers relating to inquiries
(1) The Commission shall, while inquiring into
complaints under this Act, have all the powers of a civil
court trying a suit under the Code of Civil Procedure,
1908 (5 of 1908), and in particular in respect of the
following matters, namely:–
(a) summoning and enforcing the attendance of
witnesses and examining them on oath;
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(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof
from any court or office;
(e) issuing commissions for the examination of witnesses
or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require any
person, subject to any privilege which may be claimed
by that person under any law for the time being in force,
to furnish information on such points or matters as, in
the opinion of the Commission, may be useful for, or
relevant to, the subject matter of the inquiry and any
person so required shall be deemed to be legally bound
to furnish such information within the meaning of
section 176 and section 177 of the Indian Penal Code
(45 of 1860).
(3) The Commission or any other officer, not below the
rank of a Gazetted Officer, specially authorised in this
behalf by the Commission may enter any building or
place where the Commission has reason to believe that
any document relating to the subject matter of the
inquiry may be found, and may seize any such document
or take extracts or copies therefrom subject to the
provisions of section 100 of the Code of Criminal
Procedure, 1973 (2 of 1974), in so far as it may be
applicable.
(4) The Commission shall be deemed to be a civil court
and when any offence as is described in section 175,
section 178, section 179, section 180 or section 228 of
the Indian Penal Code (45 of 1860) is committed in the
view or presence of the Commission, the Commission
may, after recording the facts constituting the offence
and the statement of the accused as provided for in the
Code of Criminal Procedure, 1973 (2 of 1974), forward
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same and the Magistrate to whom any such case is
forwarded shall proceed to hear the complaint against
the accused as if the case has been forwarded to him
under section 346 of the Code of Criminal Procedure,
1973.
(5) Every proceeding before the Commission shall be
deemed to be a judicial proceeding within the meaning
of sections 193 and 228, and for the purposes of section
196, of the Indian Penal Code (45 of 1860), and the
Commission shall be deemed to be a civil court for all
the purposes of section 195 and Chapter XXVI of the
Code of Criminal Procedure, 1973 (2 of 1974).
1
[(6) Where the Commission considers it necessary or
expedient so to do, it may, by order, transfer any
complaint filed or pending before it to the State
Commission of the State from which the complaint
arises, for disposal in accordance with the provisions of
this Act:
Provided that no such complaint shall be transferred
unless the same is one respecting which the State
Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-
section (6) shall be dealt with and disposed of by the
State Commission as if it were a complaint initially filed
before it.]
Section 14. Investigation
“(1) The Commission may, for the purpose of
conducting any investigation pertaining to the inquiry,
utilise the services of any officer or investigation agency
of the Central Government or any State Government
with the concurrence of the Central Government or the
State Government, as the case may be.
(2) For the purpose of investigating into any matter
pertaining to the inquiry, any officer or agency whose
services are utilised under sub-section (1) may, subject
to the direction and control of the Commission,–
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(a) summon and enforce the attendance of any person
and examine him;
(b) require the discovery and production of any
document; and
(c) requisition any public record or copy thereof from
any office.
(3) The provisions of section 15 shall apply in relation
to any statement made by a person before any officer or
agency whose services are utilised under sub-
section (1) as they apply in relation to any statement
made by a person in the course of giving evidence before
the Commission.
(4) The officer or agency whose services are utilised
under sub-section (1) shall investigate into any matter
pertaining to the inquiry and submit a report thereon to
the Commission within such period as may be specified
by the Commission in this behalf.
(5) The Commission shall satisfy itself about the
correctness of the facts stated and the conclusion, if any,
arrived at in the report submitted to it under sub-
section (4) and for this purpose the Commission may
make such inquiry (including the examination of the
person or persons who conducted or assisted in the
investigation) as it thinks fit.”
47. NHRC can also seek information and reports from the Central
Government or State Government under Section 17 for inquiry of complaints.
Section 18 was amended in 2006 and provides that the NHRC can recommend
payment of compensation or damages, as also can direct proceedings for
prosecution and other action as it may deem fit against the public servant. The
NHRC can also recommend grant of interim relief. It can also approach the
Supreme Court or High Court for such action as may be necessary including
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issuance of writs. Any inquiry conducted by the NHRC can also be presented
as part of a report and the said report along with its recommendation can be
sent to the concerned government authority. The NHRC can also publish the
said report along with its recommendation.
48. The powers of the NHRC have also been considered by various High
Courts. In State of U.P. and 2 Others v. NHRC and 3 Others., 2016 SCC
OnLine All 239, the Division Bench of the Allahabad High Court considered
the scheme of the Protection of Human Rights Act, 1993 and in particular use
of the expression ‘recommend’ under Section 18 of the Protection of Human
Rights Act, 1993. The Court observed as under:
“15. These provisions emphasize three aspects. First,
the enactment of the Protection of Human Rights Act,
1993 is an intrinsic part of the enforcement of the
fundamental right to life and personal liberty under
Article 21 of the Constitution. Equally, by enacting the
legislation, Parliament has evinced an intention to enact
legislation in compliance with India’s obligations under
the Covenant on Civil and Political Rights and the
Covenant on Economic, Social and Cultural Rights
adopted by the General Assembly of the United Nations.
Secondly, the Commission is a high powered body which
has been vested with exhaustive powers to order an
investigation, conduct enquiries and for which it is
vested with all the powers of a civil court. Clauses (a) to
(f) of Section 18 are not evidently an exhaustive
enumeration of the powers of the Commission since the
use of the expression “and in particular” would indicate
that the powers which are enumerated are illustrative in
nature. The Commission follows a procedure which is
governed by Section 17 for the purpose of making
inquiries upon which it has to take steps in conformity
with Section 18.
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16. The basic question is whether the use of the
expression “recommend” in Section 18(a) can be
treated by the State Government or by an authority as
merely an opinion or a suggestion which can be ignored
with impunity. In our view, to place such a construction
on the expression “recommend” would dilute the
efficacy of the Commission and defeat the statutory
object underlying the constitution of such a body. An
authority or a government which is aggrieved by the
order of the Commission is entitled to challenge the
order. Since no appeal is provided by the Act against an
order of the Commission, the power of judicial review is
available when an order of the Commission is
questioned. Having regard to the importance of the rule
of law which is but a manifestation of the guarantee of
fair treatment under Article 14 and of the basic
principles of equality, it would not be possible to accept
the construction that the State Government can ignore
the recommendations of the Commission under Section
18 at its discretion or in its wisdom. That the
Commission is not merely a body which is to render
opinions which will have no sanctity or efficacy in
enforcement, cannot be accepted. This is evident from
the provisions of clause (b) of Section 18 under which
the Commission is entitled to approach the Supreme
Court or the High Court for such directions, orders or
writs as the Court may deem fit and necessary.
Governed as we are by the rule of law and by the
fundamental norms of the protection of life and liberty
and human dignity under a constitutional order, it will
not be open to the State Government to disregard the
view of the Commission. The Commission has directed
the State Government to report compliance. The State
Government is at liberty to challenge the order of the
Commission on merits since no appeal is provided by
the Act. But it cannot in the absence of the order being
set aside, modified or reviewed disregard the order at
its own discretion. While a challenge to the order of the
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Commission is available in exercise of the power of
judicial review, the State Government subject to this
right, is duty bound to comply with the order. Otherwise,
the purpose of enacting the legislation would be
defeated. The provisions of the Act which have been
made to enforce the constitutional protection of life and
liberty by enabling the Commission to grant
compensation for violations of human rights would be
rendered nugatory. A construction which will produce
that result cannot be adopted and must be rejected.”
49. In the said case, there was custodial death of an under-trial prisoner,
which had taken place in the custody of the District Jail, Muzaffarnagar,
wherein the NHRC had directed payment of Rs.2 lakhs as compensation. The
stand of the government, that the NHRC can only ask compliance of its order,
was held to be contrary to law and was rejected by the Court. Thus, it was
held by the Allahabad High Court that the recommendations of the NHRC
would be binding on the government otherwise it would dilute the efficacy of
the Commission and defeat the statutory object underlying the constitution of
such a body.
50. A Full bench of the Madras High Court in Abdul Sathar v. Principal
Secretary to the Government in W.P.No.41791/2006 was resolving issues
raised by two conflicting single judge decisions. The question raised was
whether recommendations made by the Human Rights Commission are
merely recommendatory or fully enforceable and binding. The Full Bench of
the Madras High Court considered the earlier Division Bench decisions in
W.P.No.25614/2010 titled Sankar v. The Member, State Human Rights
Commission, Tamil Nadu and W.P.No.47861/2006 titled T. Loganathan v.
State Human Rights Commission where the Division Bench had directed the
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government to implement recommendations of the State Human Rights
Commission. The Court observed that no purpose would be served if the
Commission needs to engage other agencies of the State in adversarial
litigation to secure enforcement of its recommendation.
51. The full bench came to a conclusion that there was no conflict of views
between the Division bench judgments rather there is a conflict of view in the
decisions of two single judges namely: –
i. Rajesh Das v. Tamil Nadu State Human Rights Commission
and Others, 2010 (5)CTC 589 and,
ii. T. Vijayakumar v. State Human Rights Commission, Tamil
Nadu and Ors. in W.P.(MD) No.12316/2010.
52. In Rajesh Das(supra) after comparing the similar provisions of the
H.R. Act and Commissions of Inquiry Act, 1952, (hereinafter ‘C.I. Act’) the
Court came at a conclusion that the recommendations made by the Human
Rights Commission are recommendatory in nature. The said conclusion was
based on the Statement of Objects and Reasons of H.R. Act, wherein the Court
observed that the Commission will be a fact-finding body with powers to
conduct inquiry into the complaints of violation of human rights. The Court,
thereafter came to a conclusion that the reports/recommendations to the
Government are not binding in nature since the provisions of H.R. Act are
pari materia to the provisions of the C.I. Act, and therefore the
recommendations of Human Rights Commission cannot be enforced.
53. However, in T. Vijayakumar(Supra), the ld. Single Judge relied on the
decision of the Hon’ble Supreme Court of India, in D.K. Basu v. State of West
Bengal (1997) 1 SCC 416, where the Court relied upon Article 9(5) of the
International Covenant on Civil and Political Rights, 1966, which states that
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any victim of unlawful arrest or detention shall have enforceable rights of
compensation. The Supreme Court observed that unconstitutional deprivation
of fundamental right to life and liberty, protection of which is guaranteed
under the Constitution is based on strict liability, and to the operation of
private law for damages for tortuous acts of the public servants. The relevant
portions of the Supreme Court judgment are extracted hereinbelow:
“40.Ubi jus, ibi remedium.–There is no wrong without
a remedy. The law wills that in every case where a man
is wronged and endamaged he must have a remedy. A
mere declaration of invalidity of an action or finding of
custodial violence or death in lock-up, does not by itself
provide any meaningful remedy to a person whose
fundamental right to life has been infringed. Much more
needs to be done.
……..
42. Article 9(5) of the International Covenant on Civil
and Political Rights, 1966 (ICCPR) provides that
“anyone who has been the victim of unlawful arrest or
detention shall have enforceable right to
compensation”. Of course, the Government of India at
the time of its ratification (of ICCPR) in 1979 and made
a specific reservation to the effect that the Indian legal
system does not recognise a right to compensation for
victims of unlawful arrest or detention and thus did not
become a party to the Covenant. That reservation,
however, has now lost its relevance in view of the law
laid down by this Court in a number of cases awarding
compensation for the infringement of the fundamental
right to life of a citizen. (See with advantage Rudul
Sah v. State of Bihar [(1983) 4 SCC 141 : 1983 SCC
(Cri) 798] ; Sebastian M. Hongray v. Union of
India [(1984) 1 SCC 339 : 1984 SCC (Cri) 87 and
(1984) 3 SCC 82 : 1984 SCC (Cri) 407] ; Bhim
Singh v. State of J&K [1984 Supp SCC 504 : 1985 SCC
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47] ; Saheli, A Women’s Resources Centre v. Commr. of
Police [(1990) 1 SCC 422 : 1990 SCC (Cri) 145] .)
There is indeed no express provision in the Constitution
of India for grant of compensation for violation of a
fundamental right to life, nonetheless, this Court has
judicially evolved a right to compensation in cases of
established unconstitutional deprivation of personal
liberty or life. (See Nilabati Behera v. State [(1993) 2
SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] )
…….
44. The claim in public law for compensation for
unconstitutional deprivation of fundamental right to life
and liberty, the protection of which is guaranteed under
the Constitution, is a claim based on strict liability and
is in addition to the claim available in private law for
damages for tortious acts of the public servants. Public
law proceedings serve a different purpose than the
private law proceedings. Award of compensation for
established infringement of the indefeasible rights
guaranteed under Article 21 of the Constitution is a
remedy available in public law since the purpose of
public law is not only to civilise public power but also
to assure the citizens that they live under a legal system
wherein their rights and interests shall be protected and
preserved. Grant of compensation in proceedings under
Article 32 or Article 226 of the Constitution of India for
the established violation of the fundamental rights
guaranteed under Article 21, is an exercise of the courts
under the public law jurisdiction for penalising the
wrongdoer and fixing the liability for the public wrong
on the State which failed in the discharge of its public
duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to
the remedies available in civil law limits the role of the
courts too much, as the protector and custodian of the
indefeasible rights of the citizens. The courts have the
obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and
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expected to respond to their aspirations. A court of law
cannot close its consciousness and aliveness to stark
realities. Mere punishment of the offender cannot give
much solace to the family of the victim — civil action for
damages is a long drawn and a cumbersome judicial
process. Monetary compensation for redressal by the
court finding the infringement of the indefeasible right
to life of the citizen is, therefore, useful and at time
perhaps the only effective remedy to apply balm to the
wounds of the family members of the deceased victim,
who may have been the breadwinner of the family.
…….
54. Thus, to sum up, it is now a well-accepted
proposition in most of the jurisdictions, that monetary
or pecuniary compensation is an appropriate and
indeed an effective and sometimes perhaps the only
suitable remedy for redressal of
the established infringement of the fundamental right to
life of a citizen by the public servants and the State is
vicariously liable for their acts. The claim of the citizen
is based on the principle of strict liability to which the
defence of sovereign immunity is not available and the
citizen must receive the amount of compensation from
the State, which shall have the right to be indemnified
by the wrongdoer. In the assessment of compensation,
the emphasis has to be on the compensatory and not on
punitive element. The objective is to apply balm to the
wounds and not to punish the transgressor or the
offender, as awarding appropriate punishment for the
offence (irrespective of compensation) must be left to the
criminal courts in which the offender is prosecuted,
which the State, in law, is duty bound to do. The award
of compensation in the public law jurisdiction is also
without prejudice to any other action like civil suit for
damages which is lawfully available to the victim or the
heirs of the deceased victim with respect to the same
matter for the tortious act committed by the
functionaries of the State. The quantum of compensation
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will, of course, depend upon the peculiar facts of each
case and no strait-jacket formula can be evolved in that
behalf. The relief to redress the wrong for
the established invasion of the fundamental rights of the
citizen, under the public law jurisdiction is, thus, in
addition to the traditional remedies and not in
derogation of them. The amount of compensation as
awarded by the Court and paid by the State to redress
the wrong done, may in a given case, be adjusted against
any amount which may be awarded to the claimant by
way of damages in a civil suit.”
54. After perusing the above stated decisions, the Full Bench was of the
opinion that the said divergent views expressed by two Single Bench judges
presented conflict of views but not the Division Bench judgments. Thereafter,
the Full Bench came to the following conclusions.
“435. The Commission, when it is satisfied even during
the course of the inquiry, is empowered and recommend
for grant of immediate interim relief to the victim. When
the Commission is vested with the power of making
recommendations for grant of immediate relief, such
provision would have to be construed on a natural
corollary construct that the recommendation granting
immediate relief is binding on the concerned
Government for payment of interim relief as
recommended by the Commission. The word
‘immediate’ used in the provision would have to be
understood as ‘immediate compliance’. The attributes
of the word ‘immediate’ as per the Dictionaries, is ‘done
at once’ ‘instant’, ‘right now’. If the recommendations of
the Commission are treated to be only
‘recommendatory’ and the implementation of the same
ought to depend upon the discretionary response of the
concerned Government or Authority, such expression
would be stripped off its natural meaning and loses its
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‘immediate’ in the provision defines the recommendation
of the Commission as to its binding nature. The only
option for the Government is to move the appropriate
legal forum against the immediate relief granted by the
Commission.
436. Likewise, when the Commission finds that there
was commission of violation of human rights in terms of
Sub Clause (a)(i) & (ii), it can recommend for making
payment of compensation or damages or to initiate
proceedings for prosecution or such other suitable
action as the Commission may deem fit. The word
‘recommendation’ in the context of these provisions,
ought not to be given its ordinary or literal sense of the
meaning. Merely because the framers used the word
‘recommendation’, the binding decision of the
Commission cannot be whittled down to mere
recommendation as it understood in common parlance.
When the recommendation as contemplated under
Section 18 is made, after following the elaborate
procedure laid down in terms of the other provisions of
the Act, namely, Sections 13 to 17, such
recommendation assumes the character of adjudicatory
order which shall be binding on the concerned
Government or Authority.
xxxx
442. Unlike the other Commissions, H.R. Commission
retained its lien over its report and recommendation as
stated in Sub Clause (e) of Section 18. The concerned
Government or Authority is bound to revert to the
Commission with its comments and if the framers had
intended to make the recommendations of the
Commission as only recommendatory in nature, without
enforceable consequence, the provisions would have
been drafted more clearly and lucidly, giving expression
to the intendment of the framers. The expression
‘reasons for non-acceptance’ could have been simply
made part of Section 18 also. The deliberate and
conscious omission was in fact the expression of theSignature Not Verified W.P.(CRL) 2475/2015 Page 61 of 76
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legislative intent to classify the recommendation as (i)
complaint specific, when the Commission goes through
the rigmarole of inquiry, investigation and trial and (ii)
not related to complaint specific, but related to the
policy matter of the Government on human rights.
Therefore, any constricted sense of understanding of
Section 18(e) or comparison to Sub Clauses (2) of
Sections 20 and 28 would be self defeating and make the
Commission a lame duck judicial body.
Xxxxx
450. Likewise, the Commission which has been assigned
a constitutional role with statutory backing, its
recommendations are not liable to be slighted or
ignored. If the recommendations are open to be ignored
or the concerned Government in its discretion, can
refuse to accept the recommendation and provide
reasons for non-acceptance of the recommendation, the
remedial action contemplated in the Act would be a
empty promise and a mirage, betraying its core purpose.
It is needless to mention that any act done by the
agents/officials of the Government in violation of the
human rights, is purported to be at the behest of the
Government. In that view, the Government either
directly or vicariously liable for the transgressions of its
officials/agents. The violation of human rights is too
serious sacrosanct a matter to be left to the
Government’s discretion towards redressal of the
grievances of the victims.
xxxx
490. In the conspectus of the above discourse, the
following is our summation to the terms of the
Reference:
(i) Whether the decision made by the State
Human Rights Commission under Section 18 of
the Protection of Human Rights Act, 1993, is
only a recommendation and not an adjudicated
order capable of immediate enforcement, or
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Ans: The recommendation of the Commission made
under Section 18 of the Act, is binding on the
Government or Authority. The Government is under a
legal obligation to forward its comments on the Report
including the action taken or proposed to be taken to the
Commission in terms of Sub Clause (e) of Section 18.
Therefore, the recommendation of the H.R. Commission
under Section 18 is an adjudicatory order which is
legally and immediately enforceable. If the concerned
Government or authority fails to implement the
recommendation of the Commission within the time
stipulated under Section 18(e) of the Act, the
Commission can approach the Constitutional Court
under Section 18(b) of the Act for enforcement by
seeking issuance of appropriate Writ/order/direction.
We having held the recommendation to be binding,
axiomatically, sanctus and sacrosanct public duty is
imposed on the concerned Government or authority to
implement the recommendation. It is also clarified that
if the Commission is the petitioner before the
Constitutional Court under Section 18(b) of the Act, it
shall not be open to the concerned Government or
authority to oppose the petition for implementation of its
recommendation, unless the concerned Government or
authority files a petition seeking judicial review of the
Commission’s recommendation, provided that the
concerned Government or authority has expressed their
intention to seek judicial review to the Commission’s
recommendation in terms of Section 18(e) of the Act.
(ii) Whether the State has any discretion to
avoid implementation of the decision made by
the State Human Rights Commission and if so,
under what circumstances?
Ans: As our answer is in the affirmative in respect of the
first point of Reference, the same holds good for this
point of Reference as well. We having held that the
recommendation is binding, the State has no discretion
to avoid implementation of the recommendation and in
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case the State is aggrieved, it can only resort to legal
remedy seeking judicial review of the recommendation
of the Commission.
(iii) Whether the State Human Rights
Commission, while exercising powers under
sub-clauses (ii) and (iii) of clause (a) of Section
18 of the Protection of Human Rights Act,
1993, could straight away issue orders for
recovery of the compensation amount directed
to be paid by the State to the victims of
violation of human rights under sub-clause (i)
of clause (a) of Section 18 of that enactment,
from the Officers of the State who have been
found to be responsible for causing such
violation?
Ans: Yes, as we have held that the recommendation of
the Commission under Section 18 is binding and
enforceable, the Commission can order recovery of the
compensation from the State and payable to the victims
of the violation of human rights under Sub Clause (a)(i)
of Section 18 of the Act and the State in turn could
recover the compensation paid, from the Officers of the
State who have been found to be responsible for causing
human rights violation. However, we clarify that before
effecting recovery from the Officer of the State, the
Officer concerned shall be issued with a show cause
notice seeking his explanation only on the aspect of
quantum of compensation recoverable from him and not
on the aspect whether he was responsible for causing
human rights violation.
‘(iv) Whether initiation of appropriate
disciplinary proceedings against the Officers
of the State under the relevant service rules, if
it is so empowered, is the only permissible
mode for recovery of the compensation amount
directed to be paid by the State to the victims
of violation of human rights under sub-
clause(i) of clause(a) of Section 18 of the
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Protection of Human Rights Act, 1993, from
the Officers of the State who have been found
to be responsible for causing such violation?’
Ans: As far as the initiation of disciplinary proceedings
under the relevant Service Rules is concerned, for
recovery of compensation, mere show cause notice is
sufficient in regard to the quantum of compensation
recommended and to be recovered from the
Officers/employees of the concerned Government.
However, in regard to imposition of penalty as a
consequence of a delinquent official being found guilty
of the violation, a limited departmental enquiry may be
conducted only to ascertain the extent of culpability of
the Official concerned in causing violation in order to
formulate an opinion of the punishing Authority as to the
proportionality of the punishment to be imposed on the
official concerned. This procedure may be followed only
in cases where the disciplinary authority/punishing
authority comes to the conclusion on the basis of the
inquiry proceedings and the recommendations of the
Commission that the delinquent official is required to be
visited with any of the major penalties enumerated in the
relevant Service Regulations.
As far as imposition of minor penalty is concerned, a
mere show cause notice is fair enough, as the existing
Service Rules of all services specifically contemplate
only show cause notice in any minor penalty
proceedings.
(v) Whether Officers of the State who have
been found to be responsible by the State
Human Rights Commission for causing
violation of human rights under Section 18 of
the Protection of Human Rights Act, 1993, are
entitled to impeach such orders passed by the
Commission in proceedings under Article 226
of the Constitution and if so, at what stage and
to which extent?
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Ans: As we have held that the recommendation of the
Commission under Section 18 of the Act is binding and
enforceable, the Officers/employees of the State who
have been found responsible for causing violation of
human rights by the Commission, are entitled to assail
such orders passed by the Commission by taking
recourse to remedies of judicial review provided under
the Constitution of India. It is open to the aggrieved
officers/employees to approach the competent Court to
challenge the findings as well as recommendations of
the Commission.”
55. In Chhattisgarh Electricity Board v. Chhattisgarh Human Rights
Commission, 2017 SCC OnLine Chh 1415 the State Human Rights
Commission had directed the payment of compensation of Rs.6.22 lakhs
under Section 18 of the Act. Chhattisgarh High Court followed the decision
in Rajesh Das(Supra) to hold that under Section 18, the State Human Rights
Commission’s powers are only recommendatory in nature.
56. A similar view was taken by Chhattisgarh Human Rights Commission
in Dr. Girdhari Lal Chandarka v. State of Chhattisgarh, 2021 SCC On Line
Chh 2706 where the ld. Single Judge again followed the decision in Rajesh
Das (supra) and the ld. Single Judge had set aside the compensation awarded
by the State Human Rights Commission. It is to be noted that in Abdul Sattar
(Supra) decision, Rajesh Das (Supra) case was considered by the Full Bench
of Madras High Court and the Full Bench held that recommendation would
be binding in nature. Thus, the decision in Rajesh Das (Supra) stands
overruled.
57. A perusal of the above decisions would show that the Full Bench of
Madras High Court was rightly of the opinion that the recommendations of
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the Human Rights Commissions either at the State level or National level
would be binding in nature and if the Government is aggrieved by any of the
recommendations made by the Human Rights Commission, it can seek
judicial review of the same. The Court also observed that if the
recommendations of the Commission are to be treated only
‘recommendatory’ in nature and the implementation of the same is left to
depend upon the discretionary response of the concerned Government or
Authority, such expression would be stripped off its natural meaning and lose
its relevance in the context. The Court further went on to interpret the
intention of the legislature behind creating the HR Act and observed that if
the intention was only to make it a recommendatory body then, the provisions
would have been drafted more clearly and lucidly, giving expression to the
intendment of the framers. Thus, both Allahabad High Court and Madras High
Court have taken a view that the recommendations of the NHRC would be
binding in nature. The Delhi Police has, however, argued that the government,
can differ with the NHRC recommendations, and the same would not be
binding.
58. The above exercise of analyzing various decisions has been undertaken
by the Court as counsels have argued vehemently on the question as to
whether the decision of the State or National Human Rights Commissions
would be binding. The conflicting rulings also presented a divergence of
opinion amongst various High Courts which could further confound the
issues.
59. After having considered the reasoning in both the Allahabad High
Court and Madras High Court judgments, this Court fully agrees with the
reasoning in the said two decisions – whether in the case of compensation or
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in the case of inquiry being directed. The purpose of the Human Rights Act
and the reasons for its enactment would be nullified if the Commissions are
rendered powerless and are held to be mere recommendatory bodies. The
recommendations are binding in nature. The concerned authority/government,
however, is not without remedy and can always seek judicial review of the
recommendations. Any view to the contrary, that the Human Rights
Commissions can only make recommendations, which are not binding, would
render the said Commissions completely toothless and nullify the object of
India ratifying the Universal Declaration of Human Rights. The Court does
not agree with the stand of the Delhi Police that in each and every case, the
NHRC ought to be forced to approach the Court for implementation of its own
decisions. The NHRC is not meant to become a litigant before Courts.
60. In the opinion of this Court, human rights are not ordinary rights. These
rights are integral to Article 21 which recognizes the Right to Life.
Commissions under the Human rights Act are meant to look into any
infractions and exercise powers under the Act. Reports and Recommendations
of Human Rights Commissions need to be treated with seriousness and not
rendered edentulous or pointless. If Governments are aggrieved, they are free
to challenge the orders of State Commissions and NHRC. But such inquiries
and reports cannot be simply ignored. Human Rights Commissions are not to
be ‘toothless tigers’ but have to be ‘fierce defenders’ safeguarding the most
basic right of humans i.e., the right to live without fear and to live with dignity.
61. The above reasoning does not, in any manner, contradict the findings
of the Supreme Court in N.C. Dhoundial v. Union of India (2004) 2 SCC
579 which observed that the Commission does not have unlimited jurisdiction
and is bound by the duties and functions as defined in the Act and should
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necessarily act within the parameters prescribed by the Act. The
Commissions, while making recommendations, are thus bound to act within
the powers conferred under the Act.
62. For the purpose of the present case, on facts, it deserves to be noted that
though initially the NHRC had directed a CBI inquiry into the matter, but vide
the final order dated 5th February, 2014, the NHRC did not reiterate the said
direction and accepted the decision of the Hon’ble LG. The NHRC may have
proceeded under a wrong impression on the basis of the extant legal position
at the relevant point in time. However, this Court has, independently
considered the matter and the prayers in the writ petition. The broad two
prayers are for directions to order a CBI inquiry and also payment of
compensation. Reliefs sought in the writ petition are as under:
“i) directing Respondent nos. 2 and 3 to forthwith give
their concurrence to a CBI enquiry into the alleged
encounter killing of six / five persons on 5 May 2006 as
aforesaid;
ii) directing the Central Government and the State
Government that in the event that in future any request
is received from the NHRC seeking their concurrence
under Section 14 of the Protection of Human Rights Act,
1993 to “utilise the services of any officer or
investigation agency of the Central Government or any
State Government” then such a request is to be deemed
to be a mandatory direction that requires to be complied
with immediately in a time bound manner and that in the
event that either the Central Government or the State
Government has any objection thereto, then such
Central Government / State Government must approach
either the Supreme Court or this Hon’ble Court for such
direction as they may deem necessary and in a time
bound manner and failing which their consent to suchSignature Not Verified W.P.(CRL) 2475/2015 Page 69 of 76
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request for concurrence would be deemed to have been
granted;
iv) directing Respondent no. 1 that in cases where it is
of the view that an enquiry needs to be conducted by
some person or agency but that either the Central
Government or any State Government is not giving its
concurrence thereto and it is therefore unable to ensure
that such an enquiry is conducted then it must
mandatorily approach either the “Supreme Court or the
High Court concerned for such directions, orders or
writs as that Court may deem necessary” as prescribed
under Section 18 of the Protection of Human Rights Act,
1993;
v) directing Respondent no. 1 that in cases where it is
of the view that an enquiry needs to be conducted by
some person or agency but that either the Central
Government or any State Government is not giving its
concurrence and it is therefore unable to ensure that
such an enquiry is conducted then it must mandatorily
also impose punitive costs on the concerned officers of
the Central Government or State Government as the
case may be and to continue to levy progressively more
onerous costs until they give their concurrence thereto;
vi) directing the respondents to forthwith pay the
compensation of Rs.5 lakh to the legal heirs of Mr.
Manoj [as well as to each the legal heirs of the other
deceased persons) as already ordered by the NHRC as
well as to the legal heir of Mr Praveen who has been
missing since the said alleged encounter along with
interest thereon @18% pa with effect from 17th April
2014 when the payment was so ordered by the NHRC;
vii) direct the respondents to pay such further amount of
compensation as this Hon’ble Court may deem fit in the
facts of this case;
viii) To pass such other and/or further orders as may be
deemed necessary or proper on the facts and in the
circumstances of the case.”
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63. The Delhi Police has placed on record a detailed list of all FIRs, which
were registered against the accused in different cases and also showing inter
se link between the accused persons. The said charts are reproduced herein
below:
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64. A perusal of the above charts would show that there were multiple cases
pending against all the deceased and the allegation of the Delhi Police that
they had criminal antecedents cannot be brushed aside.
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65. The NHRC’s proposal for conducting of a CBI inquiry was examined
at various levels – by the Delhi Police, by the Hon’ble LG and the MHA,
which in its letter dated 7th November, 2013 had communicated that the
reports received by it had shown that the deceased have involvement in more
than 74 cases including murder, attempt to murder, dacoity, rape, robbery,
attack on police party etc., as extracted above and that the Delhi Police had
acted upon in a bona fide manner during the concerned incident. The same is
fully captured in the letter dated 7th November 2013, written by MHA to
NHRC. Relevant extract of the said letter is set out herein below:
“2. The NHRC had proposed a CBI enquiry in the
matter. This proposal was examined in this Ministry in
consultation with the Govt. of NCT of Delhi. The
Ministry closed this case agreeing with the views of the
Hon’ble Lt. Governor of Delhi that there is no need for
a CBI enquiry in the case and the same was conveyed to
NHRC vide this Ministry’s letter of even number dated
22.02.2013. However, NHRC has been of the view that
the theory propounded by Delhi Police cannot be
accepted and thinks that the encounter was fake. It also
issued notice to MHA to show cause as to why monetary
relief should not be recommended to be paid to the next
of kin of the deceased.
3. The matter was got re-examined in detail by the
GNCTD and Delhi Police. From the reports received in
the MHA, it transpires that all the persons who died in
the encounter were involved in more than 74 heinous
criminal cases including murder, attempt to murder,
dacoity, rape while committing robbery and attack on
police party. Further, Delhi Police have amply proved
that the encounter was genuine and there is no need to
provide any monetary relief to the next of kin of the
deceased. It is felt that providing relief to the next of kin
of such dreaded criminals would amount to providingSignature Not Verified W.P.(CRL) 2475/2015 Page 74 of 76
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incentive for such criminal activities and would send a
wrong signal.
3. While there are reasons to believe that the encounter
in question was genuine and since Delhi Police had
acted in a bona fide manner in the incident there seems
to be no ground whatsoever to grant any monetary
relief to the next of kin of the deceased.
4. It is, therefore, humbly requested that Hon’ble
NHRC may kindly take into account the above facts
and circumstances while simultaneously considering
this letter as a reply to the SCN issued by the Hon’ble
Commission vide their letter dated 14th June, 2013 to
this Ministry.”
Conclusion
66. The Court, after having analyzed the report of the Magisterial Inquiry
and consideration accorded to the same by the Hon’ble Lt. Governor, is of the
opinion that an Inquiry by CBI is not warranted in the present case. The
decision of the Hon’ble Lt. Governor after considering both the Police report
and the Report by the DM is a clearly sustainable view, that has been taken.
The Hon’ble LG in the consideration noted on 31 st December, 2012, arrived
at the conclusion that the clear intention of the police was to strike and
apprehend the persons who were together and had criminal antecedents. Thus,
the Court does not wish to substitute its own opinion.
67. The final direction of the NHRC is for payment of Rs.5 lakhs as
compensation, which decision has not been challenged by the MHA for all
these years. Having held that the recommendations of the Human Rights
Commission would be binding in nature, this Court is of the opinion that the
compensation, as awarded, deserves to be paid. The deceased has two
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daughters, both of whom are studying. They have been brought up by their
paternal grand-parents i.e., dada and dadi.
68. Since there was no challenge to the direction given by the NHRC,
which in the opinion of this Court, is binding on the government, it is directed
that the compensation shall be released by the MHA for a sum of Rs.5 lakhs
along with simple interest @ 18% within a period of three months. In addition,
despite recommendations of the NHRC more than a decade ago on 5th
February, 2014, the amount has not been paid. Accordingly, litigation costs
of Rs.1 lakh are also awarded to the Petitioners. Let the bank account details
of the Petitioner be furnished to the Registrar General within two weeks. The
amount awarded by the NHRC along with costs be deposited by the MHA
with the Registrar General of this Court by 30th April, 2025.
69. List before the Registrar General on 14th February, 2025.
70. The petition is allowed and disposed of in the above terms.
71. List for compliance on 9th May, 2025.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
JANUARY 28, 2025/ dk/ks
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