ENCOUNTER KILLINGS: BATTLE BETWEEN RULE OF LAW AND IMMEDIATE JUSTICE

ENCOUNTER KILLINGS: BATTLE BETWEEN RULE OF LAW AND IMMEDIATE JUSTICE

Introduction

The recent encounter killing of Gangster Vikas Dubey has one more time raised a question of the legality of such encounters. In the history of police encounter, there exist many cases wherein most of the encounters were held fake by the Hon’ble Supreme Court. This article deals with such cases of encounter and the law relating to encounter killings.

Provisions related Encounter

Before going into the discussion of police encounters, we need to be clear with the powers of Police that what authorizes it, or where does this power come from? The power of Police is broadly classified into two categories which are; to maintain law and order and to investigate illegal activities. As per the Police Act, 1861 the Police personnel are meant to prevent and detect the crime. It derives most of its powers from the Code of Criminal Procedure, 1973. Section 149 to 153 of Chapter XI of the Code 1973 render power under the heading “Preventive Action of Police”, further, from Section 154 to 175 of Chapter XII, deals with “Information to the Police and their power to investigate”.

Preventive Action of Police:

The purpose of adopting this chapter is to control the criminal activities which are committed in society. As the title suggests preventive actions that imply the police have to endeavor, to his best ability, to prevent the cognizable offences which are likely to happen. Section 150 of the Code, entrusts a responsibility on a Police officer, in case he receives information of intention or a plan to commit any cognizable offence, shall intimate to his senior or such officer who is incharge to take preventive action. In order to prevent the commission of such offence, the Code has given the power to arrest a person even without the order of Magistrate. However, the significance of this section is that such offence can only be made where there is no other way to inhibit the commission of such offence. Further, if we talk about the protection of public property whether movable or immovable then again it falls within the jurisdiction of Police to prevent such injury or attempt to take place. Apart from safeguarding the public property, the Police have been granted an authority under section 153 to enter, without a warrant, at any place within its jurisdiction to inspect or search for any weights or measures or instruments for weighing which are false. He can seize the same and shall forward the information of such seizure to Magistrate.

Information to the Police and their power to investigate:-

Chapter XII of the Code, 1973 provides significant functions along with powers to the Police on obtaining any tip-off of crime to occur and where cases are pending for police investigation. Therefore, the function while conducting such investigation is to register the report of a crime, guarding, protecting the scene of a crime, calling witnesses, and serving notice to them. In order to carry out these functions, they have been vested with powers to arrest criminals, suspects, and search and seizure proceedings during an investigation, interrogation of suspects, witnesses, and criminals taking criminals to courts for police/judicial custody and trial, raids for various purposes and so on. In addition to this, Section 46 of the Code, 1973, empowers a Police officer to use all means necessary to make an arrest if such person/accused forcibly resists or attempts to evade the arrest.

Extra-Judicial Killings

Extrajudicial killing, also known as “Police Encounter” is not explicitly defined in the books of legislation. Precisely, it means killing of a person by Governmental Authorities or Individuals, without the sanction of any judicial proceedings or legal process. It may be carried out by State Government or other state authorities such as armed forces and police. The report of the National Human Rights Commission of India explicitly states that, there are many fake encounters that have been reported during the year 2002-2008 in India. The legitimacy of the police action in cases of encounters has been questioned for long and a legal framework was brought by the Supreme Court along with National Human Rights Commission with the sole purpose of establishing accountability.

Intervention of Court

There are two landmark judgments of the Apex Court wherein the issue of encounter killings had been addressed.

a. Andhra Pradesh Civil Liberties Committee v. Government of Andhra Pradesh

In 2009, a five-judge Bench of the Andhra Pradesh High Court acknowledged that illegal killings by Policemen have been taking place with liberty. The Court further made it compulsory to charge policemen with culpable homicide in every case of Police encounter killing. Later on, the Andhra Pradesh Government had approached in appeal to Apex Court. Consequently, the verdict stayed with immediate effect, however, eventually was upheld in 2019.

b. People’s Union for Civil Liberties & Anr v. State of Maharashtra and Ors.

When the appeal in the above matter was pending, the Apex Court, in the PIL filed in this case, in 2014, held that each and every custodial death would be investigated by a Magistrate under Section 170 of the Code of Criminal Procedure, 1973. In this case, the Apex Court laid down standard procedure to be followed for investigation in event of police encounter and would be treated as law declared under Article 141 of the Constitution of India.

Some of the major guidelines are:-

  • Receiving of Tip-off: A tip-off of any criminal activities received by any police officer must be recorded in either writing or electronic form.
  • Registration of an FIR:In furtherance of such tip-off, Police took action resulting death of the accused then an FIR must be registered and will be presented before the Court promptly.
  • Autonomous Probe: In cases of encounter death, an independent body, which may be the independent Crime Investigation Department or Police Officers of different Police Station, will carry out an inquiry considering the basic investigation requirements.
  • Magisterial Inquiry: A compulsory Magisterial Inquiry should be conducted into every case of encounter death and its report to be sent to Judicial Magistrate.
  • Intimation to NHRC: The NHRC or state Human Rights Commission shall be immediately intimated of death cases.
  • Sending of Report to the Court: Having completed the probe into the incident, a report shall be sent to Court of proper jurisdiction for expeditious trial.
  • Disciplinary Action: A disciplinary action must be commenced against the Police officers who are found guilty of fake or wrongful encounter. Additionally, they may be suspended for such time period.
    • Compensation:A compensation is granted to the dependents of victim under Section 357-A of the Code of Criminal Procedure.
    • Redressal of Grievances: In case the dependents of the victim think that above mentioned procedure was not complied then they may initiate a complaint to the Sessions Judge of competent jurisdiction.

Guidelines of the United Nation Human Rights Commission

According to UNHRC, Police does not have the right to take away life of a person. However, the two exceptional circumstances in which police encounter cannot constitute an offence are:-

  1. If the death of an individual is caused while exercising the right of private defence.
  2. To use force in order to arrest the person accused of an offence punishable with death or imprisonment for life.

Thus, it is evident that death caused in an encounter is not justified would amount to an offence of culpable homicide. The Commission had recommended a procedure to be followed in the matter of encounter death on 29.03.1997. It was further revised on 02.12.2003. Even after revision, there were certain loopholes; therefore, the Commission brought modification in the procedure on 10.05.2010.

The Revised guidelines are as follows:-

  1. When a police officer in charge of a police station receives information about the death in an encounter with the Police, he shall enter that information in the concerned register.
  2. Where the Police officers belonging to the same Police station are members of the encounter party, whose action resulted in death, such cases should be made over for investigation to some other independent investigating agency, such as State CBCID.
  3. Whenever a specific complaint is made against the Police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC.

In Short, the Commission says that in case the use of force cannot be justified and the death lies outside the jurisdiction of the above-mentioned guidelines, it is a crime and the police officer should be mortified of culpable homicide.

Further, the Commission had asked Union Territories and States to follow the guidelines in case of death in a Police encounter.

Prevailing Scenarios

The encounter of Kanpur Gangster Vikas Dubey spotted a light over the legality of a Police encounter. Although, the extrajudicial killing has not taken place for the first time but has been committed numerous times in the past. The first police encounter took place on 11th January 1982 of gangster Manya Surve at Wadala area of Maharashtra. Some of the major encounter killings are as follows:-

  1. Ishratjahan

On 15th June 2004, IshratJ ahan along with three men were allegedly encountered by the Gujarat Police at a charge of assassinating then Chief Minister of Gujarat Shri Narendra Modi. In this case, the Apex Court, considering the outrage, had ordered the Central Bureau of investigation to probe the murders in furtherance of which a charge sheet was filed against police officials of Gujarat.

  1. Ramnarayan Gupta Case

Ram Narayan Gupta alias LakhanBhaiya was shot dead in a fake encounter in 2006. In 2013, the Court of Mumbai had awarded imprisonment for life to 21 people including 13 Police officials.

  1. Sandal Wood Smuggler 2015

On 7th April 2015, 20 red sander smugglers were brutally killed by the police officials of Andhra Pradesh. The highest number of deaths had been committed in this encounter. When asked if the attack could have been quelled without the use of deadly force, police official in charge claimed, ‘We gave them several warnings, but they did not stop attacking us. Human rights groups had alleged that the ‘smugglers’ were bounded and slayed in cold blood.

  1. Hyderabad Encounter

The four accused of rape and murder of 23-year-old vet were shot dead in an encounter in 2019. They were arrested on the charge of gang-rape and murder of a young veterinary doctor in November, 2019. On 6th December 2019 the four accused persons were killed in an encounter by Hyderabad Police. Soon, after the incident the Supreme Court had appointed 3 members Committee to look into the matter.

Legitimacy of Extra-Judicial Killings

In an opinion column of ‘The Wire’ Former Supreme Court Justice Markandey Katju stated that :-

 “The Hyderabad ‘encounter’ killing by the police of the four alleged rapists of the veterinary doctor again raises questions about the validity of the tool of extrajudicial killings devised and resorted to by a large section of the Indian police. These were widely practised by the Maharashtra police to deal with the Mumbai underworld, by the Punjab police against Sikhs demanding Khalistan, and since 2017, after Yogi Adityanath became the chief minister, by the UP Police. The truth is that such ‘encounters’ are, in fact, not encounters at all but cold-blooded murders by the police”.

He further added in his opinion

 “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law”.

This implies that before denying an individual of his life, the state is required to place an individual for investigation as per the provisions of the Code of Criminal Procedure. In the preliminary, the suspect must be explained the charges against him and afterward should be given a chance to safeguard himself and at exactly that point, whenever saw as liable, would he be able to be sentenced and executed. However, encounter killing goes around legitimate systems, as it implies knocking somebody off without a trial. Subsequently, it is completely illegal.

The Apex Court had observed in the matter of Prakash Kadam Vs. Ramprasad Vishwanath Gupta that fake ‘encounters’ by the Policemen are cold-blooded murders and those committing them must be awarded death sentences, keeping them in the category of ‘rarest of rare cases’. As per paragraph 26 of the said judgment:-

“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”.

Additionally, two United Nation Rights Experts has asked, through the letter addressing the Government of India, the Experts in India to finish exhaustive examinations concerning claimed killings by security powers in the State of Manipur, after authorities neglected to fulfill a time constraint set by the Supreme Court for investigations into the cases.

In 2012, Common Society Group submitted more than 1,500 instances of supposed extrajudicial killings in Manipur to the Supreme Court of India. In a considerable lot of cases, death had been noted by the Police because of the exchange of fire between security powers and equipped groups or people. Be that as it may, the families asserted that the cases were ‘fake encounters’ and the people had been purposefully executed.

In 2013, a Commission delegated by the Supreme Court inspected six cases selected randomly and found in all cases that the inferences of the security powers were not authentic and that none of the people murdered had built up criminal records. The Central Bureau of Investigations was requested to lead examinations concerning various cases. The specialists have kept in touch with the Government of India to communicate their concerns however still can’t get a reaction.

Conclusion

From discussing the various aspects of encounter killings by Police, it can be contemplated that there is an imperative need to bring an amendment in the penal as well as procedural laws to ensure the legality of extrajudicial killings. Additionally, the code of conduct of Police in cases of handling grave criminals or suspects should be modified. There are more fake encounters committed due to the outrage, envy, and anguish of the people than the actual ones. Usually, in the cases like Vikas Dubey encounter, people appreciate police for taking such an action (like encounter), indeed, the encounter killings may end the criminal but not the crime. A bona fide investigation instead of encounter can help the police to uproot the web of crime built by the criminal.

Thus, the Parliament should take an initiative to table any such bill or should set up a vigilance authority that would keep checks on police encounters. Such a novel initiative may sort of reducing the burden of Courts in entertaining such matters.

References:-

  1. Notification of Human Rights Commission

file:///F:/Bare%20acts/Death%20During%20the%20course%20of%20Police%20Action.pdf

  1. India: UN experts call for urgent progress in investigation of hundreds of “fake encounter”killings –OHCHR https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23323&LangID=E
  2. The Lawlessness of Encounter Killings by MarkandeyKatju J. is a former judge of the Indian Supreme Court.

https://thewire.in/law/hyderabad-police-encounter

  1. Cheering ‘encounters’ is a dangerous trend – RasheedaBhagat

https://www.thehindubusinessline.com/opinion/columns/rasheeda-bhagat/cheering-encounters-is-a-dangerous-trend/article30259604.ece

  1. Cop killed gangster VikasDubey ‘in defence’, UP police tells SC, claims encounter was genuine

https://www.hindustantimes.com/india-news/cop-killed-gangster-vikas-dubey-in-defence-up-police-tells-sc-claims-encounter-was-genuine/story-96otuADFTSSfXpvu6cNE4M.html

  1. Police encounters are common in India

https://www.rediff.com/news/report/police-encounters-are-common-in-india/20191206.htm

  1. In Depth: Encounter- Supreme Court Guidelines

https://www.drishtiias.com/loksabha-rajyasabha-discussions/in-depth-encounter-supreme-court-guidelines

  1. PrakashKadam Vs. RamprasadVishwanath Gupta13 May, 2011
  2. Andhra Pradesh Civil Liberties Committee v. Government of Andhra Pradesh( Civil Appeal No.5646 OF 2019)
  3. People’s Union for Civil Liberties &Anr V. State of Maharashtra and Ors.(Criminal Appeal No.1255 OF 1999)decided on23 September, 2014