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KIRAN SINGH vs NATIONAL HUMAN RIGHTS COMMISSION & ORS

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* 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.

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:

S. No.
Particulars
Party
1.
National Human Rights Commission (NHRC)

Respondent No.1
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 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 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 of 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 the Medical Officers who conducted the autopsy. A report should be sent to the Commission on or before the 28th 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.

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) engaged by special cell of the Delhi Police who refused 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 deployment on the Khadar side of the road if real 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:
“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 severely 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.”
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 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.”
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 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 contradictory in nature. She had taken a different stand a few days 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, 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 the 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 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;
* 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, 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 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.
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.”

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 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.”

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 of India has to deal with fake encounters. This has further been 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, stating 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.
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:
“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 the 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, the 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 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 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.”

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 exception is in the National Capital Territory, where the Delhi Police, which appears to be deeply 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.
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 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 observed that there was no need for granting permission to a further inquiry by the CBI as there are no ample evidence for corroboration as per the