Fake Encounter Killings : An Anathema To Rule Of Law

The Constitution of India has guaranteed certain rights and safeguards which the State should uphold for every citizen of sovereign India. Article 21 is the most notable provisions in the Constitution and is a part of the fundamental rights. Article 21 states that:

"No person shall be deprived of his life or personal liberty except according to procedures established by law."

The 'procedure established by law' mentioned in the Article must be fair, just and reasonable. It emphasizes that no person shall be deprived of his life and personal liberty except according to the procedure established by law. So, there is an implied guarantee against torture or assault by the State or its law enforcement agencies.  The punishment of a person, involving either deprivation of life or personal liberty, can be done only through a procedure established law. This means that trial as per the criminal law procedure, judgment based on evidence and reasons, opportunity of being heard for the accused, appeal provisions for checking errors of trial court's verdict etc, are necessary before punishing a person. When police play the role of judge and executioner by eliminating accused persons through staged encounters, there is no following of procedure established by law. This leads to a direct violation of Article 21 of the Constitution. 

In Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr, a division bench of the Supreme Court comprising Justice Markandey Katju and Justice Gyan Sudha Misra, went to the extent of stating that death penalty must be awarded to police men found guilty of committing murders in the guise of encounters.

It was said:

"that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of the rare cases. Fake 'encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

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 Nuremberg 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 the gallows await them."

In the Manual on Human Rights for Police Officers, issued by National Human RIghts Commission (NHRC), it is mentioned that,

"the law says that no one including the police has an unqualified right to take the life of another person. Causing death of a person by a police officer may amount to murder or culpable homicide not amounting to murder, unless it is established that the causing of death is for justifiable reasons. If a police officer kills someone in an encounter, he/she must prove that the death was caused either in the legitimate exercise of the right of private defence or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment. This can only be ascertained by a proper investigation and not otherwise".

The NHRC explained that the only two circumstances in which such killing would not constitute an offence were (i) "if death is caused in the exercise of the right of private defence", and (ii) under Section 46 of the CrPC, which "authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life".

The Delhi High Court has held that fake encounters have no place in a legal system governed by the rule of law.  In 2018, a Delhi High court bench of Justice Dr. S Muralidhar and Justice I.S. Mehta, in Jaspal Singh Gosain v. CBI, upheld the conviction of seven policemen of UP Police for killing a young man in a 'fake' encounter in 2009. The court while observing that the 'fake encounter' presented a grim scenario, said that,

"This was a tragic case of the killing of a 20 year old by the Uttarakhand police in a fake encounter. A fake encounter is a form of extra judicial killing which has no place in a legal system governed by the rule of law. It is a manifestation of the impunity with which armed forces, including the police, are prone to act in utter disregard of the rule of law. It also is symbolic of the cynicism with which the police themselves view the efficacy of the criminal justice system. The police, in this perception, are not just the accusers, but the prosecutor, the judge and the executioner".

In PUCL v. State of Maharastra, the Supreme Court laid down 16 guidelines/procedures 'to be followed in the matters of investigating police encounters in the case of death as the standard procedure for thorough, effective and independent investigation' issued by the NHRC. A Magisterial inquiry must be invariably held under section 176 of the Criminal Procedure Code (CrPC), in all cases of death which took place in the course of police firing and a report thereof must be sent to the Judicial Magistrate having jurisdiction under section 190 of the CrPC. And also the information of the incident without any delay must be sent to NHRC or the SHRC, as the case may be. If at the end of the investigation, if there are any materials/evidence on record to show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be strictly initiated and he should be placed under suspension. The court also said that, the guidelines will also be applicable to grievous injury cases in police encounter, as far as possible.

In Extra Judicial Execution Victim Families Association v. Union of India, the petitioners compiled a list of 1528 alleged extra judicial killings at the hands of the police and security forces in Manipur alleging that no FIRs were registered. The killings included those of innocent people with no criminal records who were later labelled being militants. The Commission appointed by the Supreme Court enquired into six of the claims of the petitioners and found that those were not genuine encounters, and the victims did not have any criminal records .The two judge bench comprising Justices Madan B Lokur and Uday Umesh Lalit, held that even when dealing with an 'enemy,' the rule of law would apply. The Court held that those members of the Manipur Police or the Armed forces who have been committed excesses under the guise of performance of their duty would be liable to be proceeded against.

Earlier this week, chilling findings of a judicial probe into the 2012 Chhattisgarh killings came to light, indicating that 17 tribal villagers were eliminated by police in a staged encounter.

All the above stated cases show that one should be very guarded and skeptical in accepting the police version about encounter killings. Most often they have been proved to be fake and staged.

The police in our nation err most often. We have had instances like the 2017 Ryan International School murder case and the Arushi Talwar murder case, where innocent persons were framed by police initially. The public opinion, shaped by hysteric media reports, were heavily against the accused in these cases. One cannot imagine the horror which would have happened had the police adopted the 'encounter approach' in those cases too, in order to satisfy the outcry of fickle minded public.

In conclusion, the police should be always held accountable to law for their acts. Encounter killings cannot be condoned citing the heinousness of the crime. Getting obfuscated amidst the public jubilation over these killings are crucial lapses of police in this case, such as their failure to take prompt action on the complaint raised by the family of the Hyderabad doctor citing jurisdictional issues. 'Short-cut' justice may give a momentary sense of relief to the public who felt outraged by the crime; but it will deflect attention from major structural issues which allow the culture of impunity and lawlessness to prevail.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]