The Code of Criminal Procedure allows for a magisterial inquiry and police investigation to be conducted side by side.

The Gujarat High Court has stayed Metropolitan Magistrate S.K. Tamang’s report on the killing of Ishrat Jehan and three others. Also, it has directed a probe into his conduct on the premise that in submitting his report even as an SIT investigation ordered by the High Court was under way, he had overstepped his limits. The fact of the SIT investigation — a police investigation albeit one ordered by itself — seems to have persuaded the High Court to subject a subordinate judicial officer to this unusual course of action.

Ishrat Jahan and three others were shot dead on June 15, 2004 by the Gujarat police which claims to have killed them in an ‘encounter’ to foil an assassination bid on Chief Minister Narendra Modi. The NHRC took suo motu notice of the incident within three days and directed the State government to comply with the NHRC 2003 Guidelines on Encounter Deaths. The guidelines require a magisterial probe as well as a police investigation into all encounters.

Independently, a petition was filed by Isharat’s mother in the Gujarat High Court. By an affidavit sworn in September 2004 the State informed the High Court that “the fact and genuineness of the police action on June 15 in which Ishrat and 3 others were killed, is being enquired into by the Addl. DGP CID (Int) Gujarat State and also separate Magisterial inquiry is being conducted in this regard by the SDM, Ahmedabad. ....(sic)”

Ishrat’s mother was, in fact, asking for a transfer of the police investigation to the CBI. It was in response to this prayer that the High Court, four years later, on August 13, 2009, entrusted the police investigation in ‘FIR No. C.R. No. I-8 of 2004 registered with DCB Police Station, Ahmedabad City’ to the newly constituted SIT of three senior police officers. Though clearly aware of the magisterial probe, the State government does not seem to have ever asked for any order, much less a stay on that probe. The High Court, confined itself to transferring the FIR to a newly constituted police investigation, that is, the SIT. Though informed of the magisterial probe, the High Court, while dealing with the petition, seems to have said not a word on it.

Distinct but simultaneous

Investigation by the police and an inquiry by a Magistrate are distinct but simultaneous procedures and this fact does not rest on the NHRC Guidelines alone. In general, every unnatural death entails an inquest under Section 174 of the Code of Criminal Procedure (CrPC). The inquest is to ascertain the apparent cause of death. In the presence of witnesses, there is a detailed examination of the marks of injury, wounds, spot of occurrence and all else that could indicate the cause of death. An honest inquest would record the mode and cause of death, whether it was by bullet or other injuries, whether fire was close range or distant, whether the fatal wound was accompanied or preceded by any other violence and so on.

‘Apparent’ does not mean cursory. It means such circumstances of the death as can reasonably be assessed at that stage. Gujarat’s claim that the only purpose of an inquest is to assess whether the death was natural or unnatural is absurd. An inquest occurs only when there is reason to believe that the death is unnatural. Any ‘encounter death’ is an admission that the police have killed and can only be an unnatural death.

Inquests under the CrPC are normally conducted by an Executive Magistrate who is often part of the police. In its 152nd report, the Law Commission noted that such inquests had proved unsatisfactory in cases of custodial deaths. The CrPC was amended in 2005 keeping in mind the concerns expressed by the Law Commission. Section 176(1A) was added to the Code, prescribing that every death, disappearance or rape while in the custody of the police must, of necessity, be subjected to an inquiry by a Judicial Magistrate or a Metropolitan Magistrate. Furthermore, such an inquiry is in addition to an inquiry or investigation held by the police. The inquiry into the death of Ishrat and the others referred to in the state’s affidavit as being held by the SDM, an Executive Magistrate, was later completed by a Judicial Magistrate, presumably in compliance with the CrPC Amendment.

All deaths in custody, and not merely those in admitted or legal custody, have to be inquired into. If the police version of an encounter is false, it is evident that the deceased must have been in police custody sometime prior to her or his death. In which case, it is death in custody. Only an inquiry will establish whether it was, in fact, a genuine encounter or a death in custody as Magistrate Tamang’s inquiry has found the case of Ishrat and the others to be. Therefore, Gujarat’s argument that an encounter death is ruled out of the operation of Section 176(1)(A) of the Code really begs the question. It is like an accused saying that he must not be put on trial because he is innocent, when only the trial will prove him guilty or innocent. If encounter killings are ruled out of the pale of such inquiry, all that needs to be done (and has often been done) to avoid scrutiny is to kill someone in custody and fake it off as an encounter.

Surely homicide

Aside from such a judicial inquiry, the Code provides for police investigation into all cases of homicide. Encounter killings are surely homicide. Whether culpable or justified as self-defence is a matter for the judge. The law gives the police no higher privilege to use lethal force than what it gives to a common citizen by way of the right of private defence.

The law provides for three things. First, an inquest to record the circumstances of any unnatural death. Second, a judicial inquiry into deaths in custody. And third, quite apart from inquests and inquiries, that all cases of homicide be registered as offences, investigated and submitted in the form of a report to the court for further action. Even when the police report suggests that case is of justified self defence, the court may send the case for trial. A Judicial Magistrate scrutinising an investigation report performs a different office than one inquiring into a death in custody.

The NHRC Guidelines collate the law as it stands into a workable checklist of the steps that must follow a supposed encounter death. This was necessitated by the spate of encounters going unchecked. The Supreme Court is yet to rule on whether every encounter death must indeed be registered as an FIR,. One thing is clear though: The Judicial Magistrate’s inquiry, when held under Section 176 (1) (A), is independent of and in addition to, any police investigation under other provisions of the Code.

Inquiries and trials based on police investigations have been known to proceed side by side. The Code distinguishes between ‘inquiry’ and ‘investigation’. The former is done by a court but is not a trial. The latter is done by the police and may lead to a trial.

There is nothing in the concept of sub judice or in any proposition on contempt of court that requires any suo motu restraint by judicial authorities on their functions. Unless it is brought explicitly to their notice that there is a valid stay or that the same nature of relief has been invoked elsewhere. S.K Tamang had not, on the date of his report, been injuncted by any superior authority nor was he substituting himself for the police investigation. It is unknown for magistrates to petition higher courts for permission to do tasks entrusted to them by the law. All that the High Court had done on August 13 was to change the investigating officers of an existing FIR. One that was under investigation even when the magisterial probe began The state government did not once seek to halt the magisterial process. What is it beefing about now?

Though it cannot sit in appeal over his findings, the High Court is certainly within its writ powers to correct any jurisdictional error in Magistrate Tamang’s proceedings. As yet, however, it is unclear, where any misdemeanour on his part lies.

(The author is a Supreme Court advocate.)

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