Encounter Killings by the police are rampant nowadays, generally called as “Extra-Judicial Killings”. Most of them appear to be “Fake Encounters”. The reasons behind such encounters are almost similar in the majority of the cases. The accused snatch the rifles from the police officers and start firing at them in an attempt to escape. These encounters mostly end with the killing of the accused.
In most cases, police officers suffer negligible or no harm. Shockingly, the general public is always exhilarated by this staged clash. They often express their joy through social media.
Who is Vikas Dubey?
Gangster Vikas Dubey entered the world of crime with a murder case in 1990. Since then, he has been in the radar of UP police for over 60 cases registered against him. These include murder, robbery, and kidnapping, among others. On 2 July, a police team had gone to arrest Dubey in Bikru village. However, they experienced sudden firing from the criminals. In the firing, he killed eight policemen including a DSP. Moreover, he caused serious injury to seven. This incident took the nation by shock. They demanded an immediate search and arrest for the gangster.
The Encounter Scene
On 9 July, they arrested Dubey at the Mahakal Temple in Ujjain, Madhya Pradesh. Speculations suggest that Dubey himself called the MP police. Post this, they arrested him at the temple. Five of his aids had been earlier killed in an encounter by the UP police since the Kanpur incident. He might have done this to surrender before the media so as to avoid an encounter. The UP police had been hunting down his allies since the last week. However, a day after his arrest, he died in an encounter by the UP police. Reports suggest that the vehicle overturned on the road due to heavy rains.
Following this, Dubey snatched a rifle from one of the policemen and started firing at them. Thereafter, they killed him in the retaliatory firing. An interesting thing to note is that the police blocked media vehicles. This was just before the encounter took place. Also, similar incidents had happened with his aids as well. A day before Dubey’s encounter, one of his aids allegedly tried to flee by snatching the pistol. Later, the police killed him in the encounter. These all incidents raise a suspicion that all this was done to “stage” the encounter of Vikas Dubey.
Legislature on Encounter Killings
Indian Penal Code
The genesis of the policemen carrying out staged encounters lies in Private Defense. Section 96 to Section 106 of the Indian Penal Code, 1860 enumerates this. Section 96 provides for immunity to actions done in Private Defense. It is available in respect of body as well as the property of oneself and others. Section 97(1) provides the right of Private Defense of Body against any offence affecting the human body. Chapter XVI of the IPC enumerates this. Section 100 of IPC incorporates instances where they can justify death. This is only while exercising his right to private defense. These instances include the apprehension of death at the hands of another person.
Section 99 lays down conditions where Private Defense would not be available. One of these is inflicting more harm than is necessary for the defense. Therefore, the policemen have to prove that they had a reasonable apprehension. Only then will their action of killing the accused be protected under the purview of Section 97. But, if a reasonable nexus does not support the encounter, it would amount to a “Fake Encounter”. Instead, it would then amount to murder punishable as per Section 302 of IPC.
Code of Criminal Procedure
Section 132 of the CrPC protects policemen from prosecution without sanction. Similarly, Section 197 provides immunity to public servants from prosecution. This is only if the act is done in discharge of his official duty and the previous sanction of the State is mandatory. Section 46 provides that while arresting an accused, there is no right to cause the death of a person. Unless he is accused of an offence punishable with death or with imprisonment for life, there is no right. Therefore, it empowers the officer to affect the killing of the accused if the person is accused of an offence punishable with death or imprisonment for life.
PUCL v. State of Maharashtra: A 16-point Guideline Reform
In the landmark judgement of PUCL v. State of Maharashtra, the Supreme Court issued a 16-point guideline. They have to follow this in the matters of investigating police encounters. These guidelines are as follows:-
- Reducing the receipt of any intelligence or tip-off into writing.
- They have to register an FIR if an encounter takes place by the use of firearms.
- There must be an independent investigation into the incident. The CID or police team of another police station must conduct this.
- The mandatory magisterial inquiry into all cases of encounter deaths.
- They must inform the NHRC or State commission immediately of the encounter death.
- The injured criminal/victim should be provided with medical aid. The Magistrate or Medical Officer must record his/her statement.
- Ensure forwarding FIR and police diary entries to Court without delay
- They should send the report to the competent Court under Section 173 of the CrPC.
- Informing next of kin of the dead alleged criminal
- Bi-annual statements of all incidents to be sent to the NHRC and state commissions by a set date in a set format
- Disciplinary action against a police officer found guilty of wrongful encounter
- Grant compensation to the dependants of the victim
- Police officers must surrender their weapons for investigation. This is subject to rights under Article 20 of the Constitution
- Intimation about the incident must also be sent to the police officer’s family
- No out of turn gallantry awards for the officers involved in encounter killings
- The family of the victim can complain to the Sessions judge these guidelines have not been followed.
Encounters: Is it a State-Sponsored Killing?
The major reason speculated behind such encounters is the snail pace judicial system. People believe that it would take years for the judiciary to deliver justice. However, encounter practices run against the procedure established by law. It violates Article 21 of the Indian Constitution. Right to Life is a fundamental right. It is available to every person. Even the state cannot violate that right by neglecting the procedure established by law.
These encounter killings undermine the credibility of the Rule of Law. They tend to question the existence of the administration of Criminal Justice System. Engaging in such retributive justice subvert the spirit of Constitutionalism. Article 14 and Article 21 ensures that due process of law is abided by. All the criminals, irrespective of their crime, must receive a fair trial. Even Ajmal Kasab and Afsal Guru were dealt under the procedure established by law. They were given equal opportunity to get legal representation in the Court. The trial procedure does take time but is invigorated by a due process. It is healthier than such instinctual revenge. “Retaliatory Killings” demonstrates the culture of “An eye for an eye and tooth for a tooth justice”. India has long abandoned this culture.
Impersonation of the Role of Investigating Authority
The police officers impersonate the role of an investigating authority. They are not an adjudicating authority. By effectuating such fake encounters, they presume the role of a judge and an executioner. Furthermore, the lacunae lie in the fact that “they are the judge in their own cause”. The police officers commence the case and investigate it until the end. How can we expect a fair investigation if they are the accused, to begin with? We have a well-structured criminal system. It enumerates the essentials and punishment for every offence. Therefore, engaging in such encounters, with those legal provisions in place, must be prohibited.
Judiciary and Encounter Killings: Are they Against?
The judiciary has always been against the notion of encounter Killings. It is pertinent to mention some decisions where the Supreme Court condemned this. In Prakash Kadam v. Ramprasad Vishwanath Gupta, the Court held that “trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them. Fake encounters by the police are nothing but cold-blooded murders, and those committing them must be given a death sentence, treating them in the category of ‘rarest of rare cases.”
Also, in Om Prakash v. State of Jharkhand, it said that “the Supreme Court has repeatedly admonished trigger – happy police personnel who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism”.
Judiciary’s Progressive Approach Towards the Obligations of the Police Officers
The judiciary has adopted a progressive approach when it comes to the obligations of the police officers. In Inder Singh v. State of Punjab, the Supreme Court observed that “this Court has in recent times come across far too many instances where the police have acted not to uphold the law and protect the citizens but in aid of a private cause and to oppress the citizen. It is a trend that bodes ill for the country, and it must be promptly checked.”
Furthermore, in Commissioner of Police v. Mehar Singh, the Court observed that “People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category.”
In our society, “Extra-Judicial Killings” cannot be an alternative to the trial process. We have to follow the procedure established by law. Satisfying the collective conscience, in this manner, is never healthy for a Democracy. We must not obliviate the fact that with the duty to arrest the criminals, policemen also need to protect themselves. But this must not be done unlawfully. After all, “Justice delayed is Justice Denied”. If this is true, then “Justice Hurried is Justice Buried” also stands correct.
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