Updated: Jul 24, 2020
This article has been authored by Ashutosh Rajput, a second-year law student at Hidayutullah National Law University, Raipur.
Since ages democratic countries like India have seen an upsurge in several political as well as economic tensions which has led to a rise in encounter killings or retaliatory killings by the police personnel. The recent controversial encounter set forth in Uttar Pradesh whereby the wanted criminal-cum-politician Vikas Dubey was killed has again sparked the debate of legality of police encounters. Dubey was accused of multiple offences, including that of killing 8 police officers. Though the police department maintained that it wasn’t a fake encounter, the state government established a special investigation team to probe the incident and ordered for a judicial enquiry by a district judge.
In fact, the constitutionality of encounter killing of the accused is always asked for by the dependents of the accused thus killed, on the apprehension that it may be a cold-blooded murder by the police personnel. Such encounters ultimately violate the fundamental rights enshrined under Article 14 as to the rule of law and Article 21 of the Indian Constitution whereby a person cannot be deprived of his life except with the due procedure established by law. The accused has a right to protect himself against any such incidents. The apex Court in Nirmal Singh Kahlon v State of Punjab has held that no accused can be killed without being prosecuted.
The police personnel contend that in order to defend themselves from the apprehension caused by the accused, they initiate the act of encounter killing. However, its authenticity remains unproved. For instance, in 2019 four accused who raped a veterinarian in Hyderabad got killed by the police in an encounter which forced the Supreme Court to formulate a special committee to fact check the authenticity of the encounter which till date hasn’t been disposed of. The authenticity of encounters takes a big hit by the fact that National Human Rights Commission (NHRC) in one of its report registered 1,782 fake encounter cases in a span of seventeen years.
Why police kill?
One of the reasons can be the failure of the police department to stand by the herculean task of arresting the accused which results in the accused to wander freely. In order to create deterrence retaliatory killing commences. Public opinion further plays a very important role in the encounter. It is no dispute that encounters of certain criminals are celebrated by the public. The 2019 Hyderabad encounter serves as a perfect example.
Another reason pertains to the awards which are given by the government in terms of promotions and cash incentives. In February 2020 one former IPS officer accused of killing the criminals got acquitted by the CBI Court and not only that, he was also awarded a post-retirement promotion by the Gujarat government.
Statutory Validity to Encounters
Encounters and the Right to Self-Defence under the Indian Penal Code, 1860 (IPC)
Right to self-defence as enshrined under Section 96 of the IPC has majorly been used as a defence for encounter killings. The said provision states that “nothing is an offence which is done in the exercise of the right of private defense” provided that such self defence should be reasonable and should not be more than what is required as per Section 99 of the IPC. Whereas Section 100 of the IPC enumerates that the right of private defence of the body extends to causing death, it is worth noting that these provisions are not only limited to the police personnel but also includes the common individuals under its ambit. Furthermore, in terms of Section 102 of the IPC, the right to self defence commences as soon as the apprehension is caused in the mind of another person.
Prominent Role of Section 46 of the Criminal Procedure Code, 1973 (CrPC)
For determining the authenticity/genuineness of an encounter Section 46 of CrPC has been often looked after. Sub clause (2) of the section states that “If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest”. This clause implies a wider connotation as “….all means necessary to effect the arrest” may also include the right to encounter such offender, moreover “….or other person” connotes that a person having no intention to aid in arresting him may make him arrested.
Interestingly, Sub clause (3) states that “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”. It can be construed that one can cause the death of the person who is accused of an offence punishable with death or with imprisonment for life. The same interpretation has been effected in the case of Extra Judicial Execution Victim Families Association v Union of India which was further referred to in the recent case of The State Of Punjab v Jasbir Singh.
Consequences of a Fake Encounter
If a police personnel is found guilty of a fake encounter then, depending upon the circumstances, either Section 299 or Section 300 of the IPC will come into picture whereby he will be prosecuted for culpable homicide or murder and he will be sentenced accordingly. If it is an intentional murder on the name of an encounter, then the officer shall be punished for murder. However, if such an encounter is done in good faith and in discharge of the duty, then culpable homicide will not amount to murder in accordance with Exception 3 to Section 300 of IPC. In reality, determining whether the fake encounter was a murder or culpable homicide is difficult and it depends upon the facts and circumstances of each case. The penalty/imprisonment is awarded on the basis of gravity and nature of the offence.
In People’s Union for Civil Liberties v. State of Maharashtra (PUCL), the Supreme Court laid certain guidelines to be followed in the matters related to the police encounters. The Court laid 16 guidelines by noticing a total of 99 Police encounters between 1995 and 1997 which resulted in the death of 135 persons in Mumbai alone. This judgment is termed as a positive step towards curbing the so-called fake encounters.
Some of the important observations of the Apex Court in the said case are as follows-
(1) The complaint against the police officer will be recorded tip-off provided that the offence was a grave criminal offence.
(2) The investigation must be done by an independent CID team or a police team of another police station under the supervision of a senior officer.
(3) The National Human Rights Commission must immediately be informed as soon as the encounter death transpired.
(4) The officer who has been accused of fake encounter must be suspended for the time being until the investigation is wrapped up.
(5) A complaint to the session judge having territorial jurisdiction can be made by the victim’s family if they discover any biasness in the probe.
In Om Prakash v. State of Jharkhand, the Supreme Court held that simply in light of the fact that an individual is a feared criminal or is blamed for an offense; the police personnel can't kill them in cold blood and should put forth all effort to arrest them.
Justice A N Mulla in the case of State of Uttar Pradesh v. Mohammed Naim before the Allahabad High Court opined that the Indian Police force is a lawless group whose record of crime is high, while Justice M Katju in the case of Prakash Kadam & Etc. v. Ramprasad Vishwanath Gupta & Anr held that the death sentence should be given to the policemen concerning the fake encounter.
In Nirmal Singh Kahlon v. the State of Punjab, the Supreme Court observed that right to a fair trial is equally applicable to both the accused and the victim as per Article 21 of the Indian Constitution.
In R.S. Sodhi v. State of U.P, the Supreme Court transferred the investigation to the CBI so that the credibility is maintained and the Court observed that it needs to be examined closely whether the police encounter leading to the death of the accused is genuine or fake.
In Prakash Kadam v. Ramprasad Vishwanath Gupta, the Supreme Court observed that the policemen will not be excused from committing a murder just on the grounds that they were ordered by the superior officers or politicians to do so. Additionally, if a police officer is given an illegal order by their superior officers to do a fake ‘encounter’ then the officer has a legal duty not to abide by such illegal order or else the officer who ‘faked the encounter’ will be liable for murder. The Court further observed that an “encounter” philosophy is a criminal philosophy, which all policemen ought to have knowledge of.
There are several instances where the encounters are genuine but sometimes these encounters seem like a violation of the fundamental rights which sabotages the law and order of a country. Though in PUCL’s case certain guidelines were laid down by the Supreme Court but still the conclusive proof of the encounter cannot be ascertained. It is no hidden fact that guidelines of the apex Court in PUCL are not followed.
Police taking lives of innocent people, by naming it as encounters, is a blot on Indian democracy. It is accepted that encounters are rare and fake encounters are even rarer. However, killing of even single innocent individual is not justified. Sometimes, encounters seem to be justified due to lack of timely disposal of justice by the Courts. But killing without giving an opportunity to the accused of defending himself in the Court of law is a gross violation of principles of natural justice. It is for these reasons, there is a dire need for police reforms and guidelines on encounter killings.