Fake Encounters as against the principle of Rule of Law: A critical Analysis

List of Cases

Andhra Pradesh Civil Liberties Committee v. The Government of AP

Sadiq Jamal Case

Ram Narayan Gupta Case

Rohtash Kumar v. State of Haryana

Om Prakash & Ors. v. State of Jharkhand

R.S. Sodhi v. State of U.P

Prakash Kadam v. Ramprasad Vishwanath Gupta

PUCL & Anr. v. State of Maharashtra & Ors.

Introduction

Fake encounters can be characterized as extrajudicial slaughtering of people who are ordinarily in custody, by the police officer without adhering to law and order. It is organized in such a manner, that it gives off an impression of being  a crossfire by the police officers. Encounters have not been new to India however most of the times the act of police prima facie appears dubious. According to an RTI request filed with NHRC, it came into light that in between 2000 to 2017, 1782 cases of phony encounters were registered in India out of which Uttar Pradesh made 794 (44.55%). Since 2017, another administration assumed responsibility in the State of Uttar Pradesh and the quantity of encounters has seen a incredible surge. 

An incident took place in the early hours of July 10, 2020, where a bad-to-the-bone criminal blamed in recent murder of eight police officers in Kanpur on July 2, 2020 was being removed to Kanpur from Ujjain by Uttar Pradesh Special Task Force. While in transit to Kanpur, a vehicle carrying the accused is said to have been met with a mishap wherein the accused attempted to escape subsequent to grabbing the gun of the police officers. It is additionally said that the cops encompassed him from all the sides and requested him to surrender but he fired. In counterattack, the cops likewise fired in which the accused got harmed. Subsequent to being taken to the hospital, he was pronounced dead. 

The vehicle of media houses who were following the vehicle, in which the accused was being conveyed, were halted at a little distance away from where the said encounter occurred by a huge police force. An inquiry was led of all the vehicles and when one of the vehicles of a media house was permitted to go on, they discovered the vehicle carrying the accused to have met with a mishap and an encounter had occurred. A comparative incident occurred with the vehicle conveying one of his helpers on July 09, 2020. A vehicle conveying him got punctured and it is claimed the accused attempted to pursue away after grabbing the gun of one of the cops and he was likewise killed in crossfire. 

History of supposedly fake encounters and extra-judicial killings

India has a questionable record of encounter killings. From the gore of ‘Bhagalpur blindings’ in 1979-1980, in the Bhagalpur province of Bihar, in which the Bihar police dazed 31 under-trials by emptying corrosive acid into their eyes to the Pilibhit encounters of 1991, where 10 travelers from a bus of Sikh pilgrims were approached to get off the transport, and were subsequently encountered, asserting that each one of those encountered were Khalistani terrorists and had criminal cases against them. Later at the directions of the Supreme Court, the CBI examined the case and presented that the plan behind the killings was to procure distinction and succeed in advancement rankings for murdering “terrorists”.

Recently, in December 2019, on the comparative lines with this episode, where four men accused of gang-raping and then burning the survivor to death were shot down by the Telengana Police in Hyderabad, and as usual police marked their activity as ‘encounter’ and said they had to open fire for safeguard.

The nation has a past of allegedly fake encounters goingfrom Veerapan of Tamil Nadu in 2004, Ishrat Jahan who was additionally encountered in 2004 by the Gujarat police for which the trial is still underway in a CBI court in Ahmedabad, Sohrabuddin Sheikh who was again encountered by the same Gujarat police in 2005 in which recently on December 21, 2018, all the 22 accused were acquitted by a special CBI court citing lack of proof.

The Batla House encounter which was set in motion by a Delhi police special team in 2008 in which the Delhi High Court in February 2018, allowed the police to present additional evidence under the steady gaze of the trial court and the Manipur extrajudicial killings in which the PIL asserts 1,528 killings in Manipur between 2000 to 2012 by security forces and police, where the most recent status is that the bench of Justice M B Lokur who was hearing the matter has disintegrated after his retirement and in July, 2019, the CJI had guaranteed to reconstitute the bench and the rundown goes on.

In lieu of the spike in encounters, the Andhra Pradesh High Court requested in Andhra Pradesh Civil Liberties Committee v. The Government of AP, [2009 (1) ALT 754], what’s more making it mandatory for the police to register an FIR against cops after each encounter causing a demise, additionally held that a judicial magistrate would choose the subsequent steps, with regards to whether proceed with the trial or close the case in the wake of hearing the police contention.

Leading encounter cases in India

Sadiq Jamal Case, 2003 

Gujrat Police shot dead Sadiq Jamal, asserting that they had gotten data that he was wanting to kill Narendra Modi. His previous criminal records just included altercation and betting. Afterward, an enquiry was directed by the CBI, wherein it was tracked down that both the police and authorities of Intelligence Bureau assumed parts in the fake encounter.

Ishrat Jahan Encounter Case, 2004

On June 15, 2004, a 19 year old woman Ishrat Jahan, was slaughtered alongside three male on the outskirts of Ahmedabad. It was asserted by the police that they were individuals from LeT (Lashkar-e-Taiba) and they were making arrangements to murder of then Chief Minister of Gujarat Narendra Modi.

Upon enquiry, the SIT established by Gujarat High Court, discovered the encounter to be staged. Afterward, the case was given to the CBI subsequent being moved to the Supreme Court. CBI documented a charge sheet wherein it denounced officials for an organized and staged encounter.

Ram Narayan Gupta Case, 2006 

A helper of Chota Rajan, Ram Narayan Gupta a.k.a Lakhan Bhaiya was gotten a hold of from Vashi and was murdered in an supposed staged encounter in Versova. Later in 2013, Mumbai sessions court condemned 21 individuals, including 13 police officers, for murdering Ram Narayan Gupta.

Rohtash Kumar v. State of Haryana ((2013) 14 SCC 290)

In October 2008, the candidate’s child was slaughtered in a supposed encounter. The candidate moved to Punjab & Haryana High Court for launching of FIR against the one’s in question, wherein the High Court would not provide any such guidance. Afterward, the candidate moved toward the Supreme Court which said that it couldn’t immediate any new examination.

In any case, the apex court noticed that two fundamental rules of the National Human Rights Commission were totally overlooked by the police. It further noticed the demonstration of police to be dicey and current realities of the occurrence to be conflicting with the hypothesis of encounter.

Laws relating to encounter

Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) gives: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 14(2) of the ICCPR, gives everybody accused of a wrongdoing to be considered as guiltless until proven otherwise.

The staged/ fake encounters (alluded to as instant justice by masses) are against the key constitutional provisions Article 14 and 21 of the Indian Constitution. Article 14 provides us with Rule of Law which expresses that Law is incomparable. Article 21 provides that each individual has the right to life and individual freedom as per the procedure set up by law. Right to fair trial is the core of criminal jurisprudence and the similar streams from Article 21 of the Indian Constitution. 

Section 96 & 100 of Indian Penal Code, furnish with right to private defence. According to Section 96, no offense is made out if any demonstration is done in self-preservation. Yet it needs to finish the assessment of Section 99 of Indian Penal Code, which gives that the demonstration ought not to stretch out to causing more damage than that is needed with the end goal of self-protection. Section 100 gives that when the right of self-preservation reaches out to causing death. For a demonstration to fall under this defence, certain conditions should be fulfilled:

1. The accused ought to be innocent while committing that act;

2. There ought to be nonattendance of any protected/ sensible method of getting away by retreat;

3. There should be a conscience of death/ extreme bodily injury; and

4.  There ought to be the need of taking life. 

Clause 3 of Section 300 of IPC, comes into light which gives that if any public worker/ any individual approved by public servant, surpasses their power to causing demise while representing progression of equity and which they accept as legitimately lawful and compulsory for releasing his obligation with no evil goal, then, at that point they won’t be responsible for murder. 

Section 46(2) of the Code of Criminal Procedure; gives more extensive power to the individual making arrest. It gives that if any individual attempts to get away from capture, the individual making the arrest has the authority to utilize all necessary power needed for making the arrest.

Judicial decisions 

In case of Om Prakash & Ors. v. State of Jharkhand, the court observed: “It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial.” The court additionally proceeded to say that they add up to state sponsored terrorism.

In the case of R.S. Sodhi v. State of U.P, court saw that it should be explored intently whether any death happens because of a fake encounter or an authentic one. In the instant case, examination was moved to CBI to keep the investigation from coming up short on any credibility.

In the case of Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189, the court had taken a harsh view and it observed: “We warn policemen that they will not be excused for committing murder in the name of `encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The encounter’ philosophy is a criminal philosophy, and all policemen must know this. 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.”

The Supreme Court in the case of PUCL & Anr. v. State of Maharashtra & Ors. ((2014) 10 SCC 635), offered guidelines to be followed for the situation when demise was the consequence of police encounter. It accommodates for the accompanying points:

•  Whenever police gets any knowledge/ tip off in regards to any grave offense to happen, the equivalent ought to be changed over into composing/ electronic form. It need not contain the subtleties of the suspect and where the police party is going.

•  Because of intelligence report/ tip off, when the encounter happens, FIR should be enlisted and it will be sent to Court u/s 157 of CrPC following the methodology recommended u/s 158 of CrPC. 

•  Independent enquiry should be led by the CID or police group of other police headquarters. The group will gather evidentiary material, plan rough sketches of the crime scene. The post mortem should be video graphed.

•  In instances of death during encounter, Inquiry by Magistrate u/s 176 of CrPC ought to be done and report ought to be sent to judicial magistrate u/s 190 of CrPC. 

•  Information of the occurrence should be sent to the National Human Rights Commission/ State Human Rights Commission immediately.

•  Medical help ought to be provided to injured harmed/ victim and his assertion ought to be recorded.

•  FIR, panchanama, diary and so forth ought to be sent immediately.

•  After complete investigation, a report should be sent to the competent court u/s 173 of CrPC.

•  In the instance of the demise of the victim/ accused his direct relation ought to be informed earliest.

•  Statements for every half year should be sent to NHRC by DGPs in the predefined format.

•  If the investigation uncovers the demonstration of the cop as an offense under IPC, he should stand suspended and disciplinary action against him must rapidly be initiated.

•  Scheme u/s 357A of CrPc must be applied regarding the family of the perished.

•  Concerned cops should give up the weapon/ any other thing needed by the investigation team for forensic investigation.

•  Information must be given to concerned policeman’s families and whenever required, the help of a lawyer/ legal advisor must be advertised.

•  No gallantry awards/ out-of-turn promotion except if his heroism was demonstrated beyond doubt.

•  If the family of the victim isn’t happy with the investigation, he can move toward the District Judge of competent jurisdiction who will investigate the benefits of the complaint and address the raised complaints. 

Lawfulness of encounter killings

In spite of the fact that there is no immediate provision in the Indian law that legitimizes encounters, but there are certain provisions, which might be deciphered relying upon case-to-case premise, which invests officials engaged in encounters, with certain powers to manage criminals.

The typical defense, brought in as a safeguard, by the officials to approve their demonstration is that the murdering must be profited, to save themselves, from the assault made by the supposed criminals i.e. the ‘right of private defense’. The law identifying with the right of private defense is contained in Section 96 to 106 of the Indian Penal Code (IPC), 1860.

Section 96 of the IPC announces that any demonstration done in exercise of ‘right of private defense’ isn’t an offense. Section 97 states the defense is accessible both in regard of ‘body’ and ‘property’, but Section 99 cautions that the protection isn’t accessible for dispensing more damage than is needed for safeguard.

Section 100 specifies the different conditions (death, grievous hurt, kidnapping, rape, acid attack etc.) under which an individual committing murder in exercise of private defense, will be legitimized.

The officials additionally take the plea of Exception 3 of Section 100 of IPC, which has been given to secure a public servant, and he who surpasses the power given to him by law, causes death in good faith, important for the release of obligation. In any case, this exception condition won’t have any significant bearing if the act is illicit or against public policy, or surpasses the power given to him by law.

Conclusion

Exercise of power needs to be within rule of law. Fake encounters are nothing more than mockery of rule of law. It affects administration of the criminal justice system and credibility of the rule of law. In a civilized society, staged encounters can never be an alternative to the process of conviction through trial. Three different branches: legislature, executive and judiciary have been made for different purposes. If the policemen start doing the work of the judiciary, then there is no need for a separate judiciary. 

Our criminal justice system and police need to go through major changes. Speedy trial for a person convicted of serious offences is the need of the hour. People are losing their utmost faith in the judiciary due to several reasons like: years and years taken in conviction of an accused. Even in many cases, the accused gets acquitted due to several reasons like improper investigation of the part of policemen, lack of witnesses etc.

Bibliography

Abdel Haleem, Muhammad, Sharif, Adil Umar, & Daniels, Kate eds.  Criminal Justice in Islam:  Judicial Procedure in the Sharīa (London; New York: I.B. Tauris; Palgrave Macmillan, 2003).

Bryett, Keith & Osborne, Peter. Criminal Prosecution Procedure and Practice:  International Perspectives(Belfast: Stationery Office, 2000).

Code of Criminal Procedure, 1974

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