Police are not a supreme institution, it must function within four walls of law

Introduction

As the salt looks like sugar the case is the same with police encounters. Though by statements and justifications of police it may seem like an authentic encounter by reading between the lines the reality looks bizarre. The acting of the police itself as the judge, jury, and executioner puts ambiguity on the legality and legitimacy of encounters. The functioning of police like this is a clear negation of the Right to a fair trial and is against the very noble principles of rule of law.

The police encounters are extrajudicial killings committed by executive machinery. The Supreme Court in Prakash Kadam v. Ram Prasad Vishwanath[1] held that fake encounters are cold-blooded murders and nothing else. By and large, encounter-killings take place in custody be it either police or judicial custody. The trends of fake encounters are not new.

The British era was flooded with allegations of fake encounters and the data annually published by the National Human Rights Commission reminds us of the eerie British Era. The report reveals 1782 fake encounters [2]have been taken place between 2000-2017 from the length and breadth of the country and in most of the cases, police officers got off scot-free by the court of law.

The most controversial encounters in the recent past are the Gangster Vikas Dubey encounter (July 2020), Hyderabad Encounter (December 2019), Bhopal Jail Encounter (October 2016), Batla House Encounter (September 2008), Sohrabuddin Encounter (November 2005), and Veerappan Encounter (October 2004). These encounters had made headlines in local as well as national newspapers and also raised debates over the power abuse by police, accountability of executive machinery, and the failure of the criminal justice system. This article highlights how the fake encounters undermine the core principles of rule of law, guidelines issued by NHRC, and judgments of the Supreme Court.

Actions Depicting Misuse of Power & Law

“The accused was running, we called to stop, he refused to surrender and in crossfire he died” This illogical, unreasonable, and arbitrary statement becomes the trend put forwarded by the police officers to counter the reasonable allegations by human rights activists and media personals in almost every encounter but truthiness behind such arguments is known by the almighty God.

Indian legal system does not provide any type of mechanism to any person (whether police or ordinary citizen) to take away the life of an alleged criminal without following the proper procedure established by the law. It is in the exercise of the right of private defense by police that provides exoneration in the penalty which otherwise would be culpable homicide or murder.

The right of private defense can be availed against both persons as well as property. Section 96 of IPC states that nothing is an offense that is done in the right of private defense[3]. Section 97[4] IPC whose first clause provides the right of private defense against offenses affecting the human body and the second clause provides private defense against offenses affecting property i.e. theft, robbery, mischief, and criminal trespass.

Section 99[5] IPC states that an excessive amount of force can’t be used to inflict more harm than required in self defence. Section 100[6] of IPC enumerates the following categories under which right to private defense is extended to even cause the death of the assailant

• Assault to kill
• Assault to cause grievous hurt.
• Assault to commit rape.
• Assault for the gratification of unnatural offence.
• Assault with intention of kidnapping and abduction.
• Assault to commit wrongful confinement.
• Throwing acid.

Section 46[7] of the CRPP whose first and second sub-clause provides the mechanism of arrest and in the third sub-clause, it provides that in case of resisting by the criminals, the police may use all means necessary for the arrest but in the same clause it is also stated that police cannot cause the death of a person who is not accused of punishment of death and life imprisonment.

The mandate of all these sections and also the judgment of the Supreme Court in OM Prakash & others v. State of Jharkhand[8] in which the court ruled that killings by police must be deprecated and such killings by police are not recognized by our criminal justice system and it amounts to state-sponsored terrorism, seems violated by paying attention to next day new paper headlines,[9] media reporting’s[10], post mortem report[11] which depicts contrary pictures as of police justification of such encounter.

The accusations, debates, and questions such as how the accused managed to escape, how the accused got pistols, how on the very onset of the day all accused flee were shot dead by police and the police in their usual defense answer, we shot in private defense, accused died in cross-firing, casts reasonable ground of doubts on the validity and accountability of such encounters. The effect of such doubtful and arbitrary statements by police would result in the decline of people’s faith towards the functioning of the police department and courts as well.

Blatant Violations of Supreme Court Guidelines

The reports published by the National Human Right Commission shows a huge spike in encounter cases from all the state of India especially, in Uttar Pradesh.[12] To tackle this serious issue Supreme Court and NHRC reprimanded the act of police officers and issued guidelines from time to time. A bench comprising of Markandeya Katju and C.K. Prasad in 2011 ruled that cops doing fake encounters were worthy of death sentence and should be hanged.[13]

From 1995 to 1997 the Mumbai police had done 90 encounters in which 135 alleged criminals were killed. On this issue PUCL, an NGO filed a writ petition in the Supreme Court. The court in PUCL v. State of Maharashtra[14] held that even the state has no authority to violate the fundamental right enshrined under Article 21. For further clearance the court also laid down 16 bullet point guidelines which would be followed by police authority at or after the death of criminals:

• Any intelligence and tip-off received must be written down in case diary or in electronic form.
• If death is the after-math of such a tip-off instant FIR must be registered and the same should be forwarded to the court.
• An independent investigation by an officer of higher rank, than of those committing encounters, must be conducted.
• Under section 176 of CRPC, a magisterial inquiry should be held in death cases.
• Without serious doubts in the investigation, the involvement of NHRC is not required.
• Medical aid should be provided to the victim.
• There should be no delay in sending of First Information Report, Diary Entry, Panchanama status to the concerned court.
• After investigation, the report must be sent to the concerned court for trial.
• Kin of the deceased/accused should be informed.
• Bi-annual statement on encounter must be submitted to NHRC by all DGPs of states.
• Disciplinary action against police officers found guilty of fake encounters must be initiated.
• Under 357-A of CRPC compensation should be granted.
• The weapons of police officers must be seized and would be sent for forensic and ballistic analysis.
• Legal aid should be provided to the accused.
• Promotion and award ceremonies must be discouraged.
• The victim’s family may complain to the session judge if proper procedure is not followed.

The NHRC in 1997 issued similar guidelines[15] and subsequent addition was also done in it by 2010. But the main debate arises, did these guidelines achieved their final goal to reduce barbaric encounters and provide legal trial, a legal right, as declared by the Supreme Court in Zahira Habibullah v. State of Gujarat[16].

By paying attention to the recent past cases the lacunae in implementation of these guidelines are:

• In most cases, the same police station, the same police officers involved in the encounter register FIR, do an investigation and frame the charge sheet.
• Social and political acceptance of encounters also laid impediments in way of proper investigation. The achievements of encounters are praised in Parliament and also in election rallies by many political leaders which ultimately give a boost to do further encounters.[17]
• Receiving a letter by District Magistrate further weakens the case as he is the sole authority responsible for holding an independent inquiry in every encounter. There is rarely any magisterial inquiry held where a police officer was found guilty. All The 8 accused cops of SIMI encounter who were questioned by human rights activists and even Chief Minister Shivraj Singh Chauhan raised concerns[18], were scot-free after an inquiry in June 2018. Furthermore, in Uttar Pradesh, all the police officers accused in 74 encounters got clean chit.[19]
• It is seen that, due to lack of evidence, Courts willingly accept the closure report filed by the police.

Suggestions and Recommendations

The heinous crimes such as rape, murder committed by alleged criminals need strict punishment but instant justice by ruining the proper procedure is a blot on the functioning of the criminal justice system. It is the court’s duty rather than the police, to award capital punishment to barbaric criminals in a nation governed by rule of law. The so-called instant justice by encountering the alleged criminals would lead to lawlessness. The recommendations prescribed are:

• There is a dire need for an independent investigation agency as these fake encounters disprove the proper function of rule of law and also declined people’s faith in the law of the country.
• A copy of the SC ruling of Nandini Sundar and Ors v. State of Chattisgarh[20]. in which the court said it is the foremost responsibility of every organ of state to function within the limit prescribed by the Constitution, must be distributed to police authorities. This would realize the police officers that misuse or excessive use of private defense would not absolve them completely.
• Police reforms in fields of education, proper training should be provided to make them aware of the true value of the right to life.
• The Criminal Justice system needs to be reformed for expeditious resolving of cases, especially of heinous crimes.
• The social and cultural acceptance of encounters, public appraisal of encounters both on social media as well as in Parliament, and statements like agar aparadh karenge, toh thok diye jayenge[21](a repercussion of crime would be encounter) from a dignified personality must be discouraged.
• India, being a signatory to UDHR, ICCPR, and ICESCR, is duty-bound to provide a just and fair trial to every accused. The deprivation of trial would erode India’s international image in the field of human rights violations.

Conclusion

It is unfortunate for a country like India, which is governed by rule of law that such incidents happen frequently. These incidents not only throw mud on India’s face on protecting human rights but also lower down the rank in the Universal Human Rights Index prepared by the United Nations. As the police are state subject, it is not only the judiciary’s responsibility but states are also duty-bound to check the power abuse by police and make them remind that law is supreme and they must perform their duty within the four walls of law.

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[1] Prakash Kadam v. Ram Prasad Vishwanath, (2011) 6 SCC 189.

[2] Firstpost, Available Here (last visited on Jun. 25, 2021).

[3] Indian Penal Code,1860, $ 96, No 45, Acts of Parliament, 1860 (India).

[4] Indian Penal Code,1860, $ 97, No 45, Acts of Parliament, 1860 (India).

[5] Indian Penal Code,1860, $ 99, No 45, Acts of Parliament, 1860 (India).

[6] Indian Penal Code,1860, $ 100, No 45, Acts of Parliament, 1860 (India).

[7] The Code of Criminal Procedure,1973, $ 46, No 2, Acts of the Parliament, 1973 (India).

[8] Om Prakash & Others v. State of Jharkhand, (2012) 12 SCC 72.

[9] Enewsroom, Available Here (last visited Jun.28, 2021)

[10] The Hindustan Times, Available Here (last visited on June 30, 2021).

[11] Livelaw, Available Here (visited on June 30, 2021).

[12] Times of India, Available Here (last visited on Jun 30, 2021).

[13] Times of India, Available Here, (last visited 25 Jun. 25, 2021).

[14] PUCL v state of Maharastra, CDJ 2014 SC 831.

[15] National Human Rights Commission, Available Here, (last visited Jun. 20, 2021).

[16] Zahira Habibullah v. State of Gujarat, (2006) 3 SCC 374.

[17] The Week, Available Here (last visited Jun. 28, 2021).

[18] The Economics Times, Available Here (last visited on Jan. 11, 2021).

[19] The Indian Express, Available Here (last visited Jun.30, 2021).

[20] Nandini Sundar and Ors v. State of Chattisgarh, (2011) 7 SCC 547

[21] The wire, Available Here (Last Visited Jan. 6, 2021).

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