Fake Encounter: Right of Fair Trial

Introduction

 Encounter killings or extrajudicial executions or retaliatory killings by the police force are disconcertingly on the increase nowadays. Such killings most of which are alleged to be the fake encounter, however, evoke rapturous joy and exhalations among the general public and also in the print, electronic, and social media.

Fake encounter is the extrajudicial killing of a person who is in custody, by the persons with whom we entrust law i.e police personnel It is set up in such a way, that it appears to be a crossfire by the policemen. Cases of encounter are nothing new for India, but in some cases the act of policemen became suspicious.

The very latest case of encounter of gangster Vikas Dubey subsequent to his arrest on 10 July 2020 has caught the attention of public and, and the act of police officers became questionable. In addition to Vikas being shot dead, five of his henchmen had been killed by the police force in alleged shootouts since July 3. these killing raise serious questions about the functioning of the police force of Uttar Pradesh, legitimacy of the use of force and the manner in which they hunt down the people they claim are criminals.

Also Read: Police Encounters and Rule of Law

LEADING CONTROVERSIAL ‘ENCOUNTER’ CASES

The very latest case of killing U.P. Gangster Vikas Dubey has caught the eyes of every person and became a sensation in India. Apart from him, his five aids have been also killed in the said encounter.

These encounters under unfathomable circumstances have raised questions on the legitimacy of Uttar Pradesh police’s asseveration. As Dubey was said to have an association with politician and police.

Lets have a look at some India’s most controversial ‘encounter’ killing since 2003.

  • Alleged Rapist/Murderers in Hyderabad,2019

In December 2019, the Telangana police shot dead four accused of gang-raping and burning to death a veterinarian doctor in Hyderabad. Claiming their action as an encounter, the said that they have to backfire in self-defence as the four men tried to steal the gun from a trained police officer.

 The four suspects were in police detention and were taken back to the site of the crime to reconstruct the crime scene when they tried to escape from the police, the police said.

  • Bhopal Jail Encounter, 2016

In October 2016, eight men related to the Student Islamic Movement of India purportedly escaped from the Bhopal Central Jail and were thereafter shot dead by the Bhopal police.

The probe reports stated that the deceased persons were asked to surrender, but they instead fire at the police and public. Eventually, the police had to crossfire and shot them.

The encounter raised many questions regarding their escape, how they get firearms, who helped them to run away from jail, how they got food and supplies after escaping from jail and many more which remained unanswered, questioning the act of police encounter being staged.

  • Manipur Extra Judicial Killings,2010

In February 2020, the four Manipur policemen, including an inspector, surrendered before the Imphal west chief judicial magistrate in association with the alleged false encounter of Irengbam Ratankumar on September 1, 2010.

The case was related to 1528 extrajudicial killings by Manipur police and security forces. Later, in May the special investigation team formed by CBI after the investigation submits a charge sheet against police personnel of Manipur.

This action came after former CBI director Alok Kumar Verma was told off by supreme court in 2018 for the agency’s failure to arrest the accused in the many alleged extrajudicial killings in Manipur.

  • Batla House, 2008

There is a movie too on this national sensation incident with the same name “Batla House”. this encounter of Batla House took place in Delhi in 2008.

On 19 September 2008, the Delhi police special cell conducted an armed operation. The force raided a flat in Batla House if Jamia Nagar in order to arrest the suspected terrorist, subsequently killing alleges terrorist who was also believed to be the mastermind of Delhi serial blasts that had taken palace just a week ago.

Meanwhile, the authenticity of the encounter was being questioned, the national human right commission took the cognizance of the case and after investigation gave a clean chit to Delhi police stating there was no violation of human rights by deli police.

Even though the NHRC has given a clean chit to the Delhi police, there were many questions remained unanswered such as why the police didn’t try to force a surrender? Why the police were armed with small weapons when they have the intention to arrest? And why on repeated demand they did not public the post-mortem reports of deceased?

  • Ram Narayan Gupta, 2006

Ram Naryan Gupta aka. ‘Lakhan Bhaiya’ and the also the right-hand man of the famous gangster Chhota Rajan was shot dead by Mumbai police in 2006, in a so-called encounter in Versova.

After the encounter, the session court of Mumbai in 2013 held 21 people, including 13 police personnel guilty of their act of conspiring and kidnapping him. And sentenced life imprisonment to all of them, except the prime accused Pradeep Sharma, encounter specialist was acquitted.

  • Ishrat Jahan, 2004

In 2004, the Gujrat police killed this 19-year girl and three other men in an alleged encounter, claiming they were the activist of Pakistan terror group Lashkar-e-Taiba, who intended to kill the then chief minister of Gujarat Narendra Modi in a suicidal attack.

Nevertheless, an investigation team is formed by the Gujrat high court and the finding claimed the encounter was a planned fake encounter by the Gujrat police. The case was forwarded to the supreme court, which transferred it to the CBI, which in turn, filed a charge sheet against many Gujrat policemen for their involvement in an alleged encounter.

  •  Veerappan, 2004

In October 2004, the Tamil Nadu special task force conducted the operation cocoon in order to catch the notorious Veerappan infamous for the murdering, poaching elephant and smuggling sandalwood. The police tricked him to get into the ambulance which was set up by them while he is going Salem for his eyes.

During the operation, the STF fired more than 300 bullets and out of which 3 bullets hit Veerappan. The controversies aroused when there was no bullet which hits his body but his eyes and forehead.

  • Sadiq Jamal, 2003

In 2003, Sadiq Jamal was shot dead by the Gujrat police alleging that he has the intention to attack Narendra Modi and other top BJP leaders. Later CBI held an investigation and stated that this was a staged encounter accompanied by the intelligence bureau officials.

  • Sohrahbuddin Sheikh, 2006

The encounter of Sohrabuddin took place in November 2006. the Gujrat anti-terror squad arrested him and his wife while they were travelling from Hyderabad to Sangli, Maharastra. They took them to the outskirt of Ahemdabad and then killed Sohrabuddin sheikh. They claimed he was an operative of Pakistan terror group Lashkar e Taiba and had plans to attack Narendra Modi.

The special CBI court was formed for the trail of Sohrabuddin encounter case and all the 22 accused in the alleged encounter of Sheikh.

  • Tulsiram Prajapati, 2006

Tulsiram was the only eye witness of Sohrabuddin encounter. He was with them when Gujrat police arrested the Sheikh couple. He was known as an associate of Sohrabuddin Sheikh, murdered in an alleged encounter.

According to CBI investigation the name of Amit Shah then home minister of Gujrat popped up in this alleged encounter as the main accused. As per the charge sheet, former DGP, P.C. Pande and additional DGP Geetha Johari abused their position to eliminate Tulsiram, who was an eyewitness to the killing of sheikh couple.

These are some controversial killings which officially claimed “encounter”, many suspects to be fake encounter.

Also Read: Rights Granted to Refugees and Various Provisions dealing with them in India

Law Related to Encounter in India

As we know, India is also a signatory of International Covenant of Civil and Political Rights (ICCPR), therefore has some legal obligations to protect the life of its citizen. Article 4 and 6 of ICCPR states “everyone has the right to life and no one should be arbitrary deprived of life even in the case of public emergency. It is non-derogable in nature.

ICCPR also says that the accused shall be presumed innocent until proven guilty. (Article 14)

Under Universal Declaration of Human Rights(UDHR) Article 5 states that no shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In the Constitution of India Article 21 guarantees the right to life to every person without any discrimination. It provides right of fair trails to accused to prove their innocence.

The right to life is a “supreme right” which is also protected in various international covenant and regional human right treaties, as without its effective guarantees all human rights are meaningless. This article says that the person if deprives of his life and personal liberty, it shall be in accordance with the procedure of law, the police have no right to punish the accused. They must be brought before the court for providing them with a fair opportunity of trial.

In Nirmal Singh Kahlon v State of Punjab,[1] it was held that Article 21 contemplates the right of an accused to have a fair trial, through a fair procedure and fair investigation. However, by allowing the arresting authority to cause the death of a person accused of a particular offence renders their rights under Article 21 a dead letter as they are denied an opportunity to be heard by an independent adjudicatory authority. Presumption of innocence is an important concept in criminal law, however, that is defeated if such a power is given to an arresting authority.

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Article 14 of the Indian Constitution provide equality before the law and equal protection of the law. It says the law is supreme and no one is above law. Hence all the accused should be punished through law of land instead of retaliatory killings or fake encounters.

Further, in Kartar Singh v State of Punjab,[3] it was held that in order for a procedure to be fair, just and reasonable, it had to conform to the principles of natural justice. One of the core principles of natural justice is audi alteram partem, or to hear the other side.[4]

 It further includes two facets:

  • notice of the charge against the said person and;
  • an opportunity to explain the said charge.

Section 96 to 100 of Indian Penal Code(IPC) states law relating to the right of private defence of person and property. It allows you to use a minimal force to safeguard the life of the person and property of self or another. This right is available to every person including policemen. This is the reason encounter occur. But the main element here is the minimal force which in some rare cases may extend to death. The police are not allowed to override this power. Unfortunately, a fake encounter is being practised as a routine exercise by the police of every state. Nothing can deny this fact.[5]

The section 46(2) of Criminal Procedure Code(CrPC) provides power to police. It states “if any person tries to escape arrest the person making the arrest has the power to use all necessary force required for making the arrest.”

From the above section, it can be concluded that police have the right to cause death when the accused doesn’t surrender and escape from the police. Whereas the subsequent section clause 3 of section 46 limits the power to cause death. Herein it provides that the person arresting can not cause the death of a person when he is accused of the offence not punishable with death or imprisonment of life. But there are cases where the accused are killed in an alleged encounter when the charges upon them are not many graves in nature but they instead had been called a terrorist. We can’t just interpret a section literally, it has to be read with other relevant sections in law and should be interpreted combined giving a sensible and broader meaning and not acting beyond power.

Also Read: Commercial Advertisement and Freedom of Speech

Judicial decisions

Throughout the long years, through several judicial pronouncements, strict procedures have been laid down for dealing with cases of extra-judicial killings. A series of Supreme Court decisions, most notably, People’s Union for Civil Liberties v. State of Maharashtra (2014) and Prakash Kadam v. Ram Prasad Vishwanath Gupta[6], have viewed extra-judicial killings as a threat to the fundamental right under Article 21 of the constitution – which guarantees against the deprivation of life without a procedure established by law.

The apex court has framed the guidelines in PUCL to be followed as far as possible to cases of grievous injury due to police encounter as well. This 16 point guideline tells about the standard procedure to be followed for an effective and autonomous investigation in case of encounter killings.[7]

  • Record Tip-off: Whenever the police receive any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence, it must be recorded either in writing or electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed.
  • Register FIR: If in pursuance to a tip-off, the police use firearms and this results in the death of a person, then an FIR initiating proper criminal investigation must be registered and be forwarded to the Court without any delay.
  • Independent Probe: Investigation into such death must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. It has to fulfil eight minimum investigation requirements like, identify the victim, recover and preserve evidentiary material, identify scene witnesses, etc.
  • Magisterial Probe: Mandatory magisterial inquiry into all cases of encounter deaths must be held and a report thereof must be sent to the Judicial Magistrate.
  • Inform NHRC: The NHRC or State Human Rights Commission (as the case may be) must be immediately informed of the encounter death.
  • Medical Aid: It must be provided to the injured victim/criminal and a Magistrate or Medical Officer must record his statement along with the Certificate of Fitness.
  • No Delay: Ensure forwarding FIR, panchnamas, sketch, and police diary entries to the concerned Court without any delay.
  • Send Report to Court: After the full investigation into the incident, a report must be sent to the competent Court ensuring expeditious trial.
  • Inform Kin: In the case of death of an accused criminal, they’re next of kin must be informed at the earliest.
  • Submit Report: Bi-annual statements of all encounter killings must be sent to the NHRC by the DGPs by a set date in the set format.
  • Prompt Action: Amounting to an offence under the IPC, disciplinary action must be initiated against the police officer found guilty of wrongful encounter and for the time being that officer must be suspended.
  • Compensation: The compensation scheme as described under Section 357-A of the CrPC must be applied for granting compensation to the dependants of the victim.
  • Surrendering Weapons: The concerned police officer(s) must surrender their weapons for forensic and ballistic analysis, subject to the rights mentioned under Article 20 of the Constitution.
  • Legal Aid to Officer: An intimation about the incident must be sent to the accused police officer’s family, offering services of lawyer/counsellor.
  • Promotion: No out-of-turn promotion or instant gallantry awards shall be bestowed on the officers involved in encounter killings soon after the occurrence of such events.
  • Grievance Redressal: If the family of the victim finds that the above procedure has not been followed, then it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. The concerned Sessions Judge must look into the merits of the complaint and address the grievances raised therein.
  • The Court directed that these requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as the law declared under Article 141 of the Indian Constitution.
  • The SC guidelines observed that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not impartial.
Conclusion

Encounter killings, regardless, are much more than a trivial issue of breach of the law; these encounters instigate us to bring up the important questions on like what’s the parameter to decide when should the use of violence by the state be considered legitimate. In various ways, a modern state administers cruelty and violence upon its citizens on non-compliance with the law.

Nevertheless, we justify such violence by the state, for the most part on the basis of a certain moral authority assigned to the state’s actions.

Indeed, as the trial of Ajmal Kasab reveals, our legal system ensures these safeguards even to those who wage a war against the state itself. The state may choose to arrive at an execution decision which was subjected to a fair trial, and yet such decision shall have more moral sanction than an encounter-killing, for the procedural safeguards of due process lend credibility to such outcomes.[8] 

Unaccompanied by that moral basis to administer violence, one should compulsorily ask the question – now is what’s left of such state-violence, unusual from the violence of non-state actors like terrorists, and gangsters (such as Vikas Dubey himself)? Is it okay for us as a society for not having any distinction in these terrible act? And more importantly, letting the state to keep playing with our rights, to say more clearly “right to life”. These are important and huge questions for each individual person of the republic to celebrate upon.

Also Read: Human Rights Wider Concept and Humanitarian law is a Narrow Concept in International Aspect


[1] 2008 (3) SCC180

[2] deconstructing section 46(3) of CrPC – A tacit approval of encounters https://criminallawstudiesnluj.wordpress.com/2020/04/23/deconstructing-section-463-of-the-crpc-a-tacit-approval-for-encounters/

[3] 1994(4)SCC 569

[4] Deconstructing section 46(3) of CrPC – A tacit approval of encounters https://criminallawstudiesnluj.wordpress.com/2020/04/23/deconstructing-section-463-of-the-crpc-a-tacit-approval-for-encounters/

[5] Encounter culture defeats the law https://www.livelaw.in/columns/encounter-culture-defeats-the-rule-of-law-159852

[6] CRIMINAL APPEAL No. 1174-1178 of 2011

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

[8] https://thewire.in/law/vikas-dubey-encounter-killings-rule-of-law

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