Encounter: A license to Kill?

Akashaya Lal, Damodaram Sanjivayya National Law University

AUTHENTICITY OF ENCOUNTERS IN INDIA

The very reason that the Supreme Court of India has come out laying down guidelines for probe of encounters shows that there has been a lot of doubt and suspicion towards these encounters in India. The Supreme Court has repeatedly ruled in numerous judgements that any extrajudicial killings must be investigated by an independent body.

The motive because of which the Apex Court is so strict in probing the encounters is the fact that India’s justice system follows the presumption “innocent until proven guilty”. Also, the fact that everybody has the right to be heard and present their case to the court.

The question “whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice to the victims” is often debated in these times, citing justice delayed is justice denied.

A 2019 report states that since 2017 in the State of Uttar Pradesh there have been 5,178 encounters, killing 103 and injuring 1859. The Supreme Court takes fake or staged encounters as a case of Culpable Homicide under IPC.

Unfortunately, extrajudicial killings have always been a part of the police system. There have been instances in the State of Bengal in the 1960s and Punjab in 1980s to quell insurgencies. In recent times, their killings relate to national security offences such as terrorism in the State of Kashmir and Manipur.

Police officials with such serious allegations of fake encounters are praised as “encounter specialists” and are also awarded promotions and financial rewards. Even the Supreme Court’s stance on encounter killings is that no person shall be awarded or given promotion out of the said incident before the enquiry has been finished and given a clean chit.

Police officials in India are authorized by law for work limited to crime investigation and law enforcement. No provision of law provides for punishment by them, as giving punishment is in the hands of the court, not the police. The concept of instant justice is not recognized in India.

The police do not have any right under Indian law to take away the life of a person who is under their custody. Legally, a person can be killed that is only in “rarest of rare cases” and that should be done following “procedure established by law” as per Article 21 of the Indian Constitution.

The people of India, because of their growing mentality that justice will be delayed in courts laud at extrajudicial killings. They blame the justice system and lack of proper investigation.

The division bench of the Supreme Court in the case of PUCL vs the State of Maharashtra laid down certain guidelines on the subject of extrajudicial killings, which is more commonly known as encounter killings.

In the instant case, the court was hearing the pleas filed by the People’s Union of Civil Liberties or PUCL on the matter of over 90 encounter killings done by the Mumbai Police between 1995 and 1997. Justice RM Lodha and Justice RF Nariman highlighted the point that Article 21 or Right to Life is available to every person and even the State itself has no authority to violate the said right.

The bench on to highlight the need to independently investigate encounter killings,

“... killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.”

The Supreme Court after perusing the directions issued by the guidelines issued by the Bombay High Court, the guidelines issued by NHRC, suggestions of PUCL, the guidelines were issued.

The guidelines issued in brief are:

  1. Whenever the police have received any tip-off regarding criminal movements or activities, it shall be reduced to writing or in some electronic form.

  2. In pursuance of the tip-off received, the encounter takes place and as a result, death occurs, an FIR shall be registered and therefore the same shall be forwarded to the court at once.

  3. An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police headquarters.

  4. A magisterial inquiry under section 176 of the CrPC must invariably be held in cases in which death occurs in the course of police firing, and a report must be sent to the Judicial Magistrate.

  5. The information of the encounter shall be given without any delay to the NHRC or the State Human Rights Commission.

  6. The injured criminal/victim should be provided medical aid and the statement shall be recorded by the Magistrate or Medical Officer along with a certificate of fitness.

  7. There should be no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.

  8. After the investigation of the incident, the report shall be sent to the competent court under section 173 of the CrPC.

  9. In the event of death, the next of kin of the alleged criminal/victim must be informed without any delay.

  10. Every six months statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs.

  11. In case the investigation concludes that the evidence shows that death was caused by the use of fire-arm amounting to an offence under the IPC, disciplinary action against such officer must be initiated without any delay and the officer should also be suspended from his duties.

  12. Compensation shall also be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the CrPC must be applied.

  13. The weapons used by the police officials must be surrendered for forensic investigation.

  14. An intimation about the incident must be sent to the police officer’s family and legal services shall also be offered.

  15. No out-of-turn promotion or instant gallantry awards shall be bestowed on the concerned officers soon after the occurrence.

  16. In case the family of the victim comes to know that the above procedure has not been followed or there exists a pattern of abuse or impartiality by any of the functionaries as above mentioned, a complaint to the Sessions Judge having territorial jurisdiction over the place of the incident can be filed.

In Spite of all the guidelines, There have been many encounters in the news that were lauded by the public at large. In the month of December 2019, 4 people were accused of raping and killing a young doctor in Hyderabad. There was media outrage on the incident, people coming out of their homes demanding “instant justice”.

The accused, on one morning, were taken back to the scene of the crime for investigation and were shot dead one by one. The police version of the said incident was that the accused tried stealing the officers’ guns and also tried escaping.

After the news brought out the encounters of the said accused, the mother of the victim came out on several news channels and stated, “justice has been done.”

The investigation of the said incident is underway, but the way the public reacted is a worrying sign for our justice system. It tells us that the justice system needs revision, as the Indian public’s belief on it is slowly diminishing.

References:

  1. www.scconline.in

  2. www.bbc.com

  3. www.barandbench.com

  4. www.theweek.in

  5. www.latestlaws.com

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