Karnataka forest shootings: How a 1991 order guards forest staff from murder charge

Karnataka Forest Minister Ramalinga Reddy stated that the magisterial inquiry report is likely to be handed to the state government on August 22.

Although the Hanur police registered a murder case based on a complaint by Swamy’s wife, a police investigation is yet to begin since the magisterial inquiry report is awaited as mandated by the 1991 order for immunity to forest officers in encounters, police sources said.

The forest department has, however, not filed a complaint against the dead men for poaching but filed cases against people from the villages of the victims – who vandalized forest camps at Hanur after the deaths.

The families of the victims have alleged that the three men had gone to look for “lost cattle” in the Hanur forest in the early hours of August 15 when they were killed in cold blood for alleged poaching, while a fourth person, Joseph Mahima Das, 45, escaped.

‘Forest staff opened fire in self-defence’

Dr Malathi Priya, Chief Conservator of Forests, Chamarajanagar district, stated on Thursday in Mysore that the four men were poachers and that forest staff opened fire in self-defence after the alleged poachers opened fire. Two country-made guns and animal meat were found near the spot and “based on the evidence it is certain that those who entered the forest were poachers,” she said.

Ramalinga Reddy told the state legislature on August 17 that the shootings were a consequence of the forest staff suddenly chancing upon the alleged poachers around 5 am on August 15 in the Hanur forest and opening fire from a single shotgun after reportedly seeing a flash of gunfire from the poachers’ side. “There was no malicious intent,” the minister said.

The 1991 prosecution immunity order

At the height of the poaching menace in the forests on the Karnataka-Tamil Nadu border involving the gang of the notorious poacher Veerappan – who is alleged to have poached over 500 elephants and killed over 180 people in the two decades between 1980-2000 in the forests of Karnataka, Tamil Nadu and Kerala, forest officers were granted immunity.

According to the 1991 order granting immunity to forest officers, a police case can be taken up in encounter cases only if a magisterial inquiry finds wrongdoing. “The magisterial inquiry report is awaited at present,” the police said.

“The police registering an FIR against the forest staff in this incident is legally improper. Once the initial commotion cools down, if our department files an application in court, the court will quash the FIR immediately,” said a former forest officer from the Hanur region.

“To prevent poaching and smuggling, the government has supplied guns to forest officials, as the smugglers more often than not come prepared with guns and other lethal weapons generally more powerful than what is provided to the forest personnel. On a number of occasions, the forest subordinates had to fire at the smugglers in self-defence and also to safeguard the government property,” says the preamble of the 1991 order for immunity to forest officers.

“In almost all cases of firing, the subordinates who are involved were arrested and in a few cases even a charge of murder was brought on them, and for this they had to undergo a lot of mental agony. This has affected the morale of the forest personnel to a great extent, leading to their not using the firearms even when an occasion demanded it,” the preamble states.

According to the government notification, forest officers can use their firearms with minimal force to protect forest property and their own lives but not for dispersal of crowds.

“While in the discharge of their duties, if any firing is resorted to, a Magisterial Enquiry by the Executive Magistrate of the concerned area should be ordered in all such cases, and as a consequence of such enquiry if it is held that there was unnecessary, unwarranted or excessive use of force, a criminal case could be instituted against the delinquent officers after examination of the Government,” says the September 20, 1991 immunity order.

“Till the recommendation of the magisterial enquiry is known, police should not arrest or proceed against the officers who had opened fire…” the order states.

“There are no specific provisions of law in the Indian Penal Code, 1860, Criminal Procedure Code, 1973, Karnataka Forest Act, 1963, Wild Life (Protection) Act, 1972, etc., giving them powers to use firearms. Like other citizens, the forest officials also can exercise their right of private defence under Sections 96 to 106 of the Indian Penal Code,” the 1991 order said.

“The power to use firearms, is only meant to stop the criminal and hence the purpose should be to injure, rather than kill. Firing should not be done indiscriminately and vindictively. In other words, firing should be stopped as soon as the objective is achieved. During enquiry, the onus will be on the forest officials to justify the use of firearms,” the order states.

“As far as possible, firing should be avoided during nighttime because it may not be possible to aim and fire, and also innocent persons may be injured/killed,” the order says.

On completion of the magisterial inquiry, the inquiry report will be scrutinised by the government to see if the opening of fire is justified and if it is not justified “criminal action will have to be taken against those forest officials who opened fire” including arrests and identification parade, the 1991 order says.

Forest officials are also protected against legal action for acts done in good faith in the line of duty under Section 114 of the Karnataka Forest Act, 1963, a former Hanur forest official said.

According to Section 114 of the Karnataka Forest Act, “No suit, prosecution or other legal proceeding shall lie against any Forest Officer for anything done or omitted to be done by him in good faith under this Act or the rules or orders made thereunder”.