Allahabad High Court order in Pilibhit extra-judicial killings case merits a substantive appeal

As early as 1993, the Supreme Court had castigated the Uttar Pradesh police. When the CBI authorities approached the local police as well as officers in the Home Department of the State Government, they did not receive the desired cooperation and case papers were not handed over to them.

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What was Allahabad High Court's recent verdict on the Pilibhit encounter case of 1991?

ON December 15, 2022, the Allahabad High Court reduced the sentence of 47 policemen for killing ten Sikh men to seven years of rigorous imprisonment. The innocent Sikhs were killed in three incidents of extrajudicial executions (EJEs) in a single night in Uttar Pradesh's Pilibhit district in 1991.

EJEs in India are euphemistically called 'encounter deaths' as part of a widespread effort at dissimulation of State responsibility and command responsibility by State actors in cases of cold-blooded murder of innocent civilians, as in this case.

The Allahabad High Court convicted the policemen of culpable homicide not amounting to murder. It set aside the Central Bureau of Investigation (CBI) trial court's verdict which convicted the policemen of murder and criminal conspiracy. The high court convicted them of culpable homicide not amounting to murder.

The Shiromani Akali Dal, led by the Badal family and the Shiromani Gurudwara Prabhandak Committee met and requested Adityanath, the Chief Minister of Uttar Pradesh in December 2022, to prefer an early appeal in the Supreme Court against the high court order.

The high court was hearing appeals filed by 43 policemen who challenged the trial court order. A total of 57 policemen were chargesheeted in the case, of which 14 are now dead.

What had occurred in Pilibhit in 1991?

The case dates back to July 12, 1991, when Uttar Pradesh police personnel stopped a Pilibhit-bound bus at Kachlapul ghat and dragged out 11 Sikh men. The other passengers, including women and children, were taken to a gurdwara in Pilibhit, while the men were made to sit in another vehicle. Later in the evening, additional forces joined the police team and they allegedly divided the Sikh men into three groups.

On the intervening night of July 12 and 13, 1991, the policemen shot dead the Sikh men in three separate incidents of extrajudicial killings under three different police station areas — Bilsanda, Niuria and Pooranpur — in Pilibhit. The police said that they had criminal cases against them and claimed to have recovered arms and ammunition from their possession.

The body of one of the Sikh men was not recovered. Most of the victims were from Gurdaspur in Punjab.

What had the Supreme Court said on the matter?

This was not the first attempt to get the policemen off the hook.

The Supreme Court's order of July 16, 1993 in Writ Petition (Crl.) No. 214 of 1993 requires detailed quoting:

"This writ petition filed by an Inspector of Police (U. P. State Service) is yet another attempt at thwarting the implementation of this Court's order dated May 15, 1992 passed in Writ Petition (Criminal) No. 1118 of 1991. An abridged version of the events which led to the passing of that order may first be stated.

On July 12/13, 1991, an incident occurred in Pilibhit area of Uttar Pradesh in which 10 persons were killed on the spot in what came to be officially stated as 'encounters' between the Punjab militants and the local police. The Times of India highlighted the incident on the basis whereof Shri R.S. Sodhi, an advocate practising in this Court filed a writ petition under Article 32 of the Constitution alleging infringement of Article 21 and related provisions. The issue figured in the Parliament and two teams of MPs belonging to the Congress (I) and the BJP rushed to the spot for an on-the-spot assessment. Their reports were placed on the record of the proceedings along with the report of the Additional Chief Judicial Magistrate, Pilibhit.

Certain local police officers, suspected to be involved in the incidents, were immediately transferred and the investigation was handed over to an officer of the level of an Inspector-General. The State Government also appointed a one-member commission headed by a Judge of the Allahabad High Court to inquire into the incident but the work of the commission did not commence on account of stay obtained in a writ petition. The allegations were mainly directed against the local police by the kith and kin of those who were killed in the alleged encounters. Doubts were expressed regarding the fairness of the investigation as it was feared that since local police were alleged to be involved in the encounters, the investigation by an officer of the Uttar Pradesh cadre may not be impartial. This Court refrained from expressing any opinion on the allegation made by either side but thought it wise to have the incidents investigated by some independent agency — the Central Bureau of Investigation — so that it may bear credibility. The Court felt that no matter how faithfully and honestly the local police may carry out the investigation the same will lack credibility as the allegations were directed against them. This Court, therefore, thought it both desirable and advisable and in the interest of justice to entrust the investigation to the CBI so that it may complete the investigation at an early date. It was clearly stated that in so ordering no reflection on either the local police or the State Government was intended. This Court merely acted in public interest.

After this order when the CBI authorities approached local police as well as officers in the Home Department of the State Government, they did not receive the desired cooperation and the case papers were not handed over to them. This fact was communicated to this Court. After inquiring into the matter another order was passed on January 11, 1993, directing the Home Secretary, Uttar Pradesh, to take immediate steps to ensure compliance with the order dated May 15, 1992. Direction was also issued to the then DGP, Uttar Pradesh, Shri Prakash Singh, IPS and Secretary, Home, Uttar Pradesh, Shri Prabhat Kumar, IAS to show cause why action for their failure to comply with the Court's order of May 15 1992, should not be initiated against them. In response to the notices so issued both the officers filed affidavits dated April 7 and 13, 1993 respectively, expressing unconditional and unqualified apology for their failure to promptly comply with this Court's order. This Court taking a lenient view acted on the statement that necessary action had already been taken to comply with the order of May 15, 1992 and accepting the apology tendered by the said two officers discharged the notices by the order of April 16, 1993. As nothing further survived the petition was disposed of.

It will thus be seen that unfortunately the Uttar Pradesh Police did not take the order of this Court dated May 15, 1992 in the right spirit and tried to create hurdles in its implementation, notwithstanding the fact that a Review Petition No. 549 of 1992 was also rejected earlier."

Singh, after retirement, became a votary of police reforms. Curiously, his petition at the Supreme Court had no mention of the need for removal of prior sanction for prosecution of police officials that the National Police Commission had recommended in 1981.

The petition filed by an inspector "was filed during the vacation on May 21, 1993. The petitioner is a Police Inspector and claims to have filed this petition in public interest for the enforcement of fundamental rights guaranteed by Articles 14 and 21. In the opening paragraph of the writ petition it is stated that the petition is being filed in a representative capacity on behalf of the Uttar Pradesh Police as the interest of the entire police force of Uttar Pradesh is involved because this Court's order directing the CBI to investigate into the Pilibhit incident is destructive of the exclusive powers of the State of Uttar Pradesh and is in flagrant disregard of the mandatory provisions of the CrPC. The basis of the writ petition is an order dated March 10, 1989 of this Court in Writ Petition Nos. 531-36 of 1988, Haryana Mahila Sanghathan v. Union of India, wherein the Division Bench of this Court referred the question whether the Court can order the CBI to investigate an alleged offence without the consent and orders of the concerned State Government to a larger Bench, preferably a Bench comprising of five judges of this Court. The petitioner, therefore, contends that since this issue was awaiting decision by a larger Bench, this Court could not have passed the order dated May 15, 1992.

In the first place it is difficult to appreciate what public interest the petition seeks to serve and it is even more difficult to appreciate how the petitioner's fundamental rights under Articles 14and/or 21 of the Constitution can be said to be violated. Fair and impartial investigation by an independent agency not involved in the controversy is the demand of public interest. If the investigation is by an agency which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to public interest as well as the interest of justice. This Court was careful enough to state that its order should not be read as a reflection on either the local policy or the State Government but that it was actuated by the sole object of ensuring that the outcome of the investigation, whatever it be, is not suspect in the eyes of the people including the family members of those killed in the incident. Therefore, it is difficult to understand how the petition can be said to be in public interest. What public interest does it seek to subserve? In fact the averment in Paragraph 1 betrays that the petition is filed on behalf of Uttar Pradesh Police to protect "the interest of the entire police of Uttar Pradesh"(Emphasis ours). Nowhere does the petitioner allege that he was serving in that area at the time when the incident occurred. It is, therefore, difficult to understand how his constitutional right under Article 14 and/or Article 21 can be said to have been violated. It is obvious that the petition is misconceived and is merely yet another attempt to frustrate the implementation of the order dated May 15, 1992. In fact such successive attempts on the part of the Uttar Pradesh Police only strengthens the suspicion calling for an independent investigation. Thus, the writ petition is untenable on this preliminary ground."

The Supreme Court further elaborated: "7. We do hope that the Uttar Pradesh Police will reconcile to the fact that the factual situation arising from the incident in Pilibhit had persuaded this Court to pass the order of May 15, 1992 not only in the interest of fair and impartial investigation but also in the interest of the Uttar Pradesh Police so that there may not remain any lingering doubt regarding the credibility of the investigation. The Uttar Pradesh Police, we hope, will give up its obstructionist attitude and cooperate with the investigation entrusted to the CBI in its larger interest.

It is also unfortunate that the petitioner who was nowhere in the picture has permitted himself to be used for preferring this petition, and that too after two of the high ranking officers had assured this Court that they would ensure compliance with this Court's order of May 15, 1992. It was on that assurance that this Court had accepted their apology and dropped the proceedings by discharging the notices. We do hope that a situation will not be created which may compel us to initiate similar proceedings once again. The petitioner will also be more circumspect and careful in future and not become a tool in the hands of others."

Thereby hangs a tale. At the time of writing this piece, no appeal at the Supreme Court had been filed by the Uttar Pradesh government. Over thirty years later, the families of the victims await closure, if not justice.