The Commission had occasion to consider the procedure to be followed in cases of death in police encounter in view of the complaints it had been receiving that instances of fake encounters by the police are on the increase in which no investigation, as required by law, into the cause of these unnatural deaths was being made.

In some complaints alleging killings in fake police encounters in Andhra Pradesh, the question which arose for consideration by the Commission was whether the police officers who fired the bullets that resulted in the killings, were justified in law to do so, and if otherwise whether and if so what offences were committed by them.

The Commission considered this question on the basis of the existing law and made an order dated November 5, 1996 (Coram: Justice Ranganath Misra, Chairperson, Justice M. Fathima Beevi and Justice V.S. Malimath, Members) in File Nos. 234 (1-6)/93-94/NHRC, dealing with this question.

Reference to some extracts from that order is instructive:

".........Article 21 of the Constitution of India provides that no person shall be deprived of his life except according to the procedure established by law. Article 6 of the International Covenant on Civil and Political Rights provides:

"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

"Right to life" is the most important one so far as any person is concerned because all other rights would be dependent upon the subsistence of life. The Constitution and the Covenant have, therefore, guaranteed life in emphatic terms and the only limitation is that it could be taken away by the procedure established by law.

It is not necessary to support this conclusion by any authority and it appears to us as too elementary. What is next to be examined is, is there a procedure which authorises taking away of life in the facts of these cases.

... The scheme of the criminal law prevailing in India is that a person who claims the right of private defence as a cover against prosecution has to plead and establish the same. Chapter IV of the Indian Penal Code deals with "General Exceptions" and makes no distinction between an ordinary person and a policeman in this regard excepting in the matter of the plea of performance of duty. In case a situation as contemplated in these Sections arises, police is certainly entitled to take to arms and even kill the attackers without suffering any punishment for the killing.


Right of private defence, if raised, has to be established. Criminal law contemplates that entitlement of protection under an exception would be available if the conditions are satisfied. ............ Section 105 of the Evidence Act clearly prescribes:

"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
...