BY- NIHARIKA MITTAL
(RAYAT COLLEGE OF LAW, RAILMAJRA)
The term “Encounter Killing” is used in India since late 20th century to describe alleged extra-judicial killings by police or armed forces, supposedly in self defence when they encounter suspected gangsters or terrorists. At that time, police used to attack the city’s underworld, and the practice spread to other large cities. Some cities like Mumbai, Chennai and Kolkata were at a very high frequency of encounter killings by police. Some of the killings have been controversial and people have alleged that Police created fake encounters as opportunities to kill suspects.
Police encounters generally means extra-judicial killing of person who are usually in custody of police by the policeman without following the rule of law. The term police encounter is not defined specifically in the Indian Penal Code and the Code of Criminal procedure but there are other provision which states the meaning of police encounter.
Laws relating to encounter
So, in India not only police but every citizen of India has a right of private defence i.e., a man is justified in repelling force by force in his defence, against any person who manifestly intends by violence or surprise to commit a felony upon either. Section 96 & 100 of the Indian Penal Code, provides with right to private defence. As per Section 96, if any act is done in self-defence, it is no offence. But it should relate to Section 99 of Indian Penal Code, which says that the person shall not cause more harm than required for the purpose of self-defence. According to section 100, the right of self-defence could extend to causing death.
There are certain conditions that needs to be satisfied for an act to fall under this defence.
1. The accused should be innocent while committing that act;
2. There should be absence of any safe/ reasonable mode of escaping by retreat;
3. There must be apprehension of death/ severe bodily injury; and
4. There should be the necessity of taking life.
Section 300(3) of IPC provides that if any public servant causes death while acting for advancement of justice and which is lawful and mandatory for discharging their duty without any wrong intention, then they will not be liable for murder.
Section 46(2) of the Code of Criminal Procedure provides that if any person tries to escape arrest, the person making the arrest has power to use all necessary force required for making the arrest.
At the time of arrest, if a person accused of heinous crimes, where the punishment is life imprisonment or death penalty, in such cases, if that person tries to escape from the arrest, police may also kill that accused person if the police has no other option of taking him into custody.
But, say a person is accused of theft, where According to Section-379, the imprisonment may extend upto three years and not life imprisonment, so in such a case if he tries to escape from police custody, police cannot shoot a person or kill him.
Police encounters when legal and when not?
When the life of the police is in danger and the police has no other option of arrest, they may also kill an accused if he is alleged of heinous crimes and trying to escape from its custody, in such cases police encounter is legal.
Also, if during a police encounter, an innocent person in a mob dies, police is not liable for the same if it has taken all the sufficient precautions during that encounter. Sadly, even if it happens, it gives permission to not only police but every citizen of India that while practicing right to private defence, if a person shoots and if there is no other person besides saving his life, then even if the innocent person dies, law protects that situation.
But at the same time law also protects the right of alleged criminals and prohibits the police from encounter killings. Encounter killings are general exceptions that deal with general conditions of non-imputability or general grounds of exemption from criminal liability.
The legal function of police authorities is to investigate the case and arrest the accused person in their legal capacity. In cases where there is extrajudicial killing of persons who are usually in custody of the police without following the rule of law, are said to be police encounters that are not legal or fake encounters. It is staged in such a way that it appears to be crossfire by the policemen. But law protects such persons from the act of police.
Article 6(1) of the International Covenant on Civil and Political Rights provides that every human being has the inherent right to life and this right is protected by law. Article 14(2) of the ICCPR, provides every person who is accused of a crime shall be considered as innocent until proven guilty by the law.
The fake encounters are against the constitutional provisions of Article 14 and 21 of the Indian Constitution.
Consequences of Encounters
Police encounters are a blot on the judiciary system of our country. There are a lot of incidents in India where these killings are happening and are against the basic principle of human rights in India. The problem with encounters is that, say a criminal was encountered today, it was right; everyone applauded the police for doing so. The police might do even more encounters tomorrow, due to which an innocent person might get killed one day. In fact, this has already happened in many cities.
The reporters of India Today went undercover as businessman to the police officers and said that they wanted to get a case of a bank robbery filed against their competitor, so they asked the police to nab an innocent man and encounter him in order to trap the competitor in a case and some police officers were ready to gun down an innocent civilian in an encounter for 8 lakh rupees.
It is extremely easy to conduct encounters of innocent people for money, promotion or publicity and this is already happening. Questions have been raised on so many encounters across the country. There are more than 800 cases where the police probably murdered an innocent person, talking about only one state.
This is the reason why the people who formed our constitution, put three pillars in place – Legislature, Executive and Judiciary. If only two pillars would carry out all the work, then they would not have made the third one. All the three pillars keep each other in check and could be called a system of checks and balances.
Leading encounter cases in India
1. The recent case of Vikas Dubey’s Encounter, 2020 made questioned the veracity of the encounter again like many other cases. The incident took place in the early morning of July 10, 2020, where a hardcore criminal accused in recent murder of eight policemen in Kanpur on July 2, 2020 was taken to Kanpur from Ujjain. On the way to Kanpur, a vehicle carrying Vikas Dubey is said to have been met with an accident wherein he tried to run away after snatching the pistol of the policeman. It is said that the policemen surrounded him from all the sides and requested him to surrender but he fired. The policemen also fired in which Dubey got injured. When police took him to the hospital, he was declared dead. Apart from Dubey, five of his members were also killed by the police in reported encounters over the last week. This encounter under mysterious circumstances raised many questions on the authenticity of the Uttar Pradesh police’s claims, a lot of people on social media have also alleged that this encounter was faux. But we cannot pass any judgement till the investigation is not completed.
2. Bhopal jail encounter,2018
In October 2016, eight people associated with the Students’ Islamic Movement of India (SIMI) allegedly escaped from the Bhopal Central Jail and were subsequently shot dead by the state police.
The report stated that when the deceased persons were asked to surrender, they began firing at the police and public. Therefore, the police had to open fire. At that time, many videos surfaced, suggested the encounter was staged.
In June 2018, S.K. Pandey, who is a retired judge of the Madhya Pradesh High Court, gave police a clean chit.
3. Batla House case, 2008
The Batla House encounter took place in Delhi in 2008.On 19 September 2008, Delhi Police special team carried out an encounter in Batla House in Jamia Nagar, where two suspected Indian Mujahedeen terrorists and inspector Mohan Chand Sharma got killed.
Some people questioned the veracity of the encounter, and claimed it was staged. The National Human Rights Commission also conducted an investigation on a plea filed by People’s Union for Democratic Rights, and eventually gave a clean chit to Delhi Police.
4. Veerappan Case, 2004
In October 2004, Veerappan, infamous for kidnapping, elephant poaching and sandalwood smuggling, was shot dead in an encounter by the Tamil Nadu Special Task Force. The STF fired 338 bullets, out of which three hit Veerappan. However, it was questioned that whether his encounter was staged and actually a cover-up job. But nothing was found out.
5. Manipur extrajudicial killings, 2010
In February 2020, four Manipur policemen, including an inspector, surrendered before the Imphal West chief judicial magistrate in connection with the alleged fake encounter of Irengbam Ratankumar on 1 September 2010. This case was among other 1,500 extrajudicial killings by the Manipur Police and security forces. The Special Investigation Team of the CBI was investigating the case and submitted a charge sheet against the police in May 2019.
6. Ram Narayan Gupta, 2006
Ram Narayan Gupta alias ‘Lakhan Bhaiya’, was shot dead in 2006 by the Mumbai Police in Versova. In 2013, Mumbai sessions court sentenced 21 people, including 13 policemen, to life imprisonment for killing Gupta. The prime accused, encounter specialist Pradeep Sharma, was also acquitted.
7. Sadiq Jamal, 2003
In 2003, Sadiq Jamal was shot dead by Gujarat police; they claimed to have information that Jamal was planning an attack on Narendra Modi and other BJP leaders. When CBI investigated the case they found out that not only Jamal was shot dead by the police in a fake encounter, but also that the Intelligence Bureau played a role in it.
According to the investigation, Jamal was not planning to kill Modi and others, and his past criminal record only included an altercation in 1996 and arrest for gambling in 2002. Many police inspectors and top IB officials were accused in the case of his encounter.
Guidelines framed by National Human Rights Commission (NHRC)
In 1997, Justice MN Venkatachaliah, the then Chairperson of NHRC, also the Chief Justice of India in 1993-94, had a talk with Chief Ministers of all the States and UT’s about the fake encounters done by the police officials on the complaint from the general public and from the non-governmental organisations. He stated that according to the law, police has no right to take a life of a person unless such killing is done under the right of private defence or under Section-46 of IPC which says that the police may use force, which may extend to causing of a death during the arrest of a person if he tries to escape from the arrest and that person is subjected to an offence where the punishment is death or life imprisonment.
So, NHRC directed certain guidelines which shall be followed by the police in all the States and Union Territories in the cases of encounter killings by the police officials. They were:-
1. The information regarding any case of encounter killings by the police must be recorded by the in-charge of the police station in the appropriate register.
2. Such cases needs to be investigated by an independent CID team or a police team of any other police station under the supervision of a senior police officer.
3. If during an investigation, it is found out that the encounter done was staged, the compensation must be provided to the dependents of the deceased.
In 2010, NHRC further expanded the guidelines by adding some new procedures, including:
1. An F.I.R. must be registered initiating proper criminal investigation if in pursuance to a tip-off, the police use guns or other weapons that results in the death of a person and it must be forwarded to the court without any delay.
2. Mandatory inquiry of Magistrate must be held in all the cases of encounter deaths and a report must be prepared and sent to the Judicial Magistrate.
3. All the cases of death must be reported to the commission by the Senior Superintendent of Police/ District Superintendent, within 48 hours of the encounter along with the reports of the post-mortem and inquest and findings of magisterial inquiry or inquiry done by senior officers within three months.
4. The post-mortem examinations of any person died in police action must be recorded and their images must be submitted to the commission, for further course of action.
Exercise of power needs to be within the rule of law. Fake encounters are nothing more than scoffing of the law. It affects credibility of the rule of law. In our society, fake or staged encounters are not an alternative to the process of conviction through trial. There are three different branches i.e., legislature, executive and judiciary that have been made for different purposes. The police officers are extremely overworked,“ The Police in India Report,2019” released by the CSDS, tells us that on an average, a police officer in our country works for fourteen hours a day and 50% of them do not even get a day off the entire week. There should be 2.8 million police officers in our country, but there are merely 1.9 million of them, which means 30% of the posts are still vacant. Speedy trial for a person who is convicted of serious offences is the need of the hour. People are losing their faith in the judiciary due to several reasons like: years and years taken in conviction of an accused. All the three pillars i.e., Legislature, Executive and Judiciary need to be made stronger.
1. Indian Kanoon
2. The Indian Penal Code book by Prof. S.N.Misra
3. The Constitution of India book by Dr. Narinder Kumar
4. The Code of Criminal Procedure book by Prof. S.N.Misra
5. The Policing in India report,2019 by the Centre for the study of developing societies (CSDS)
6. International Covenant on Civil and Political Rights
7. The Constitution of India
8. The Indian Penal Code
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].