Fake Encounters and the Rule of Law
Author: Prasoon Shekhar, The ICFAI University, Dehradun.
“Fake ‘encounters’ are nothing but cold-blooded, brutal murder by the persons who are supposed to uphold the law”.
Fake encounters can be defined as extrajudicial killing of persons who are usually in custody, by the policeman without following the rule of law. It is staged in such a way, that it appears to be as crossfire by the policemen. Encounters have not been new to India but in many cases, the act of police prima facie appears suspicious. As per an RTI request filed with NHRC, it came into light that between 2000 to 2017, 1782 cases of fake encounters were registered in India out of which State of Uttar Pradesh made 794 (44.55%). Since 2017, a new government took charge in the State of Uttar Pradesh and the number of encounters has seen a great surge.
An incident took place in the early morning of July 10, 2020, where a hardcore criminal accused in the recent murder of eight policemen in Kanpur on July 2, 2020, was being taken away to Kanpur from Ujjain by Uttar Pradesh Special Task Force. On the way to Kanpur, a vehicle carrying the accused is said to have been met with an accident wherein the accused tried to flee away after snatching the pistol of the policemen. It is further said that the policemen surrounded him from all the sides and requested him to surrender but he fired. In a counterattack, the policemen also fired in which the accused got injured. After being taken to the hospital, he was declared dead.
The vehicle of media houses who were following the vehicle, in which the accused was being carried, were stopped at a little distance away from the place where the said encounter took place by a large police force. A search was conducted of all the vehicles and as soon as one of the vehicles of a media house is allowed to go ahead, they found the vehicle carrying the accused to have met with an accident and encounter had taken place. A similar incident happened with the vehicle carrying with one of his aide on July 09, 2020. A vehicle carrying him got punctured and it is alleged the accused tried to run away after snatching pistol of one of the policemen and he was also killed in the crossfire.
Leading Encounter Cases in India
Sadiq Jamal Case, 2003
Gujrat Police shot dead Sadiq Jamal, claiming that they had received information that he was planning to kill Narendra Modi. His past criminal records only included altercation and gambling. Later, an inquiry was conducted by the CBI, wherein it was found that both the police and officials of the Intelligence Bureau played roles in a fake encounter.
On June 15, 2004, a 19-year-old lady Ishrat Jahan, was killed along with three males on the outskirts of Ahmedabad. It was claimed by the police that they were members of LeT (Lashkar-e-Taiba) and they were planning the murder of then Chief Minister of Gujrat Narendra Modi.
Upon enquiry, the SIT constituted by Gujrat High Court, found the encounter to be staged. Later, the case was handed to CBI after being transferred to the Supreme Court. CBI filed a charge sheet wherein it accused officers of a staged encounter.
Ram Narayan Gupta Case, 2006
An aide to Chota Rajan, Ram Narayan Gupta @ Lakhan Bhaiya was picked up from Vashi and was killed in an alleged staged encounter in Versova. Later in 2013, Mumbai sessions court sentence 21 people, including 13 policemen, for the killing of Ram Narayan Gupta.
Rohtash Kumar v. State of Haryana ((2013) 14 SCC 290)
In October 2008, the applicant’s son was killed in an alleged encounter. The applicant approached Punjab & Haryana High Court for registering of FIR against the ones involved, wherein the High Court refused to give any such direction. Later, the applicant approached the Supreme Court which said that it was unable to direct any fresh investigation.
However, the apex court noted that two essential guidelines of the National Human Rights Commission were completely ignored by the police. It further observed the act of police to be doubtful and the facts of the incident to be inconsistent with the theory of encounter.
Laws Relating to Encounter
Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides: “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, provides everyone accused of a crime to be considered innocent until otherwise.
The staged/ fake encounters (referred 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 states that Law is supreme. Article 21 provides that every person has the right to life and personal liberty in accordance with the procedure established by law. The right to a fair trial is the heart of criminal jurisprudence and the same flows from Article 21 of the Indian Constitution.
Section 96 & 100 of Indian Penal Code, provide with the right to private defence. As per Section 96, no offence is made out if any act is done in self-defence. But it needs to pass the test of Section 99 of Indian Penal Code, which provides that the Act should not extend to causing more harm than that is required for the purpose of self-defence. Section 100 provides when the right of self-defence extends to causing death. For an act to fall under this defence, certain conditions need to be satisfied:
- The accused should be innocent while committing that act;
- There should be an absence of any safe/ reasonable mode of escaping by retreat;
- There must be the apprehension of death/ severe bodily injury; and
- There should be a necessity for taking life.
Clause 3 of Section 300 of IPC, comes into the light which provides that if any public servant/ any person authorized by a public servant, exceeds their power to causing death while acting for the advancement of justice and which they believe as lawful and mandatory for discharging his duty without any ill intention, then they will not be liable for murder.
Section 46(2) of the Code of Criminal Procedure; provides a wider power to the person making an arrest. It provides that if any person tries the escape arrest, the person making the arrest has the power to use all necessary force required for making an arrest.
In the 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 further went on to say that they amount to state-sponsored terrorism.
In the case of R.S. Sodhi v. State of U.P, the court observed that it needs to be investigated closely whether any death occurs due to a fake encounter or a genuine one. In the instant case, the investigation was transferred to CBI to prevent the investigation from lacking any credibility.
In the case of Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189, the court had taken a stern 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 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 that the gallows await them.
The Supreme Court in the case of PUCL & Anr. v. State of Maharashtra & Ors. ((2014) 10 SCC 635), gave guidelines to be followed in the case when death was the result of police encounters. It provides for the following:
- Whenever police receive any intelligence/ tip-off regarding any grave offence to take place, the same should be converted into writing/ electronic form. It need not contain the details of the suspect and the place where the police party is headed.
- As a result of intelligence report/ tip-off, when an encounter takes place, FIR must be registered and it shall be forwarded to Court u/s 157 or CrPC following the procedure prescribed u/s 158 of CrPC.
- Independent inquiry needs to be conducted by the CID or police team of other police stations. The team shall collect evidentiary material, prepare a rough sketch of the crime scene. The post mortem needs to be video graphed.
- In cases of death during the encounter, Inquiry by Magistrate u/s 176 of CrPC should be done and reports should be sent to judicial magistrate u/s 190 of CrPC.
- Information about the incident must be sent to the National Human Rights Commission/ State Human Rights Commission without any delay.
- Medical aid should be provided to the injured accused/ victim and his statement should be recorded.
- FIR, panchanama, diary, etc. should be sent without delay.
- After a complete investigation, a report must be sent to competent court u/s 173 of CrPC.
- In case of death of the victim/ accused his close relative should be informed earliest.
- Statements for every six months must be sent to NHRC by DGPs in the specified format.
- If the investigation reveals the act of policeman as an offence under IPC, he should stand suspended and disciplinary action against him should quickly be initiated.
- Scheme u/s 357A of CrPc should be applied with respect to the family of the deceased.
- The concerned police officers should surrender the weapon/ any other thing required by the investigation team for forensic analysis.
- Information should be provided to concerned police officers’ family and if required, the service of lawyer/ counselor should be offered.
- No gallantry awards/ out-of-turn promotion unless his gallantry was proved beyond doubt.
- If the family of the victim is not satisfied with the investigation, he can approach District Judge of competent jurisdiction who shall look into the merits of the complaint and address the raised grievances.
Viewpoint of National Human Rights Commission
The NHRC has stated that policemen are not conferred with the right to take away the right of any person. In respect to private defence, the right to policemen is also available as available to any ordinary person. Further, the use of force during the arrest of a person so as to cause death may only be justifiable if the person was accused of an offence for which punishment would be life imprisonment or death. But if the act of police is not justified on the grounds of private defence/ Section 46 of CrPC, the policemen will be liable for culpable homicide.
In 1997, NHRC had initially framed four-step procedure to be followed in case of encounters which included registering of offence, investigation of the cases by independent agencies like CID, and granting of compensation to the relatives of deceased, if the investigation led to the conviction of policemen.
The guidelines were again revised in 2003 and then in 2010. The revised guidelines provide a much detailed procedure consisting of registering of encounter, an investigation by independent investigating agencies, magisterial inquiry to be conducted preferably within three months if police action resulted in death, quick action against the policemen found guilty, no gallantry awards/ out-of-turn promotion unless his gallantry was proved beyond doubt and sending a report to the commission by SP/ SSP in a specified format.
Recent Developments in Vikas Dubey Encounter Case
- Prior to the alleged encounter of Vikash Dubey, Advocate Ghanshyam Upadhyay had moved before Supreme Court seeking protection of gangster after his aides were killed in an alleged fake encounter. After the alleged encounter took place, the petitioner approached the registry of Apex court to amend his prayer seeking a CBI monitored investigation.
- Advocate Pawan Prakash Pathak and Law Student Abhijeet Kumar Pandey have submitted a letter petition before Chief Justice, Allahabad High Court, for a Central Bureau Investigation/ Special Investigation Team enquiry in the alleged extra-judicial killing.
- Advocates Devesh Saxena and Bhavya Sahai have also submitted a letter representation before the Chief Justice, Allahabad High Court, urging him to take cognizance and directing judicial probe in the alleged extra-judicial killing.
- People’s Union for Civil liberties approached the apex court through a petition filed by Advocate Aparna Bhat for the direction of Special Investigation Team (SIT) inquiry in the alleged Vikas Dybey Encounter.
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 criminal justice system and credibility of rule of law. In a civilized society, staged encounters can never be an alternative to process of conviction through trial. Three different branches: legislature, executive and judiciary have been made for different purposes. It the policemen start doing the work of judiciary, then there is no need of a separate judiciary.
Our criminal justice system and police needs to go through major changes. Speedy trial for person convicted of serious offences is the need of the hour. People are losing their utmost faith in judiciary due to several reason 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.
 Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189, ¶ 25.
 Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 1485.