Fake Encounters: A Collapse to The Rule of Law by Shamshad Ahmad

The rule of law should be respected so that the basic structure of our democracy is maintained and further strengthened.  

                                                                                                - Lal Bahadur Shastri   

Introduction

Our constitution makers made three pillars legislative, executive and judiciary, if only two pillars were enough then there was no need of judiciary.  Police themselves takes decisions and kill criminals in the form of encounter. Independent judiciary is required to avoid this kind of activities in the name of fake encounters. This is called system of checks and balances the three pillars checks each other if any one of the pillars powers exceeds the building will fall down. 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 a 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 in between 2000 to 2017, 1782 cases of fake encounters were registered in India out of which the 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 flow. 

Any person may have committed the most heinous of crimes yet the due process of law is to be made available to even the worst human being on earth. Our believe in human rights constitution and legal system demands form us that no one shall be killed by the police in an encounter. The criminal justice system needs to be implemented with fare trail. You cannot simply take the law in hand. This is not the way in which a civilized legal system operates.

Recently in Vikas Dubey encounter case on 10 July 2020

By police looks fake. his arrest more look like a surrender there were people who moved to hon’ble supreme court anticipating that he is likely to be killed the way the car was changed the car was laying conveniently on a reasonably good road. The way the press people were not allowed to accompany him and stopped few kilometres before this incident raises questions of

Doubt about this. How only his car met with an accident. Why did the police did not place handcuffs on him that it was so easy for him to snatch the gun and run away why the proper safety measures have not taken,  this happens in  many of times in encounter that criminal uses to snatch the gun from police and started running  . How in an open field he was trying to run and while running the police shot bullets in chest instead of in leg or back all this facts raising questions about this encounter as fake it seems like a scripted story. And that’s way many human rights activist, former police officers are not convinced with this encounter. There will be some judicial enquire and the truth will be finally come out soon after the investigation

The court observed in Nirmal Singh kahnoon vs state of Punjab[1] the court observed that the right to investigation and fair trail is applicable to both, the accused and the victim under article 21 of the constitution of India. 

The court observed in Om Prakash  & ors vs state of Jharkhand and Anr[2] “such killings must be depreciated. They are not recognised as legal by our criminal justice administration system. They amount to state terrorism.”

National Human Rights Commission (NHRC) Viewpoint

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, use of force during 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 a 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 conviction of policemen.

The hon’ble Supreme Court in the case of PUCL & Anr. v. State of Maharashtra & Ors.[3] Gave guidelines to be followed in the case when death was the result of police encounter. It provides for the following:

(1) Whenever police receive any intelligence or 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.

(2) As a result of intelligence report/ tip off, when the encounter takes place, FIR must be registered and it shall be forwarded to Court u/s 157 of CrPC following the procedure prescribed u/s 158 of CrPC. 

(3) Independent enquiry needs to be conducted by the CID or police team of other police stations. The team shall collect evidentiary material; prepare rough sketches of the crime scene. The post mortem needs to be video graphed.

(4) In cases of death during encounter, Inquiry by Magistrate u/s 176 of CrPC should be done and report should be sent to judicial magistrate u/s 190 of CrPC. 

(5) Information of the incident must be sent to the National Human Rights Commission/ State Human Rights Commission without any delay.

(6) Medical aid should be provided to injured accused/ victim and his statement should be recorded.

(7) FIR, panchanamas, diary etc. should be sent without delay.

(8) After complete investigation, a report must be sent to the competent court u/s 173 of CrPC.

(9) In the case of the death of the victim/ accused his close relative should be informed earliest.

(10) Statements for each six months must be sent to NHRC by DGPs in the specified format.

      (11) If the investigation reveals the act of the policeman as an offence under IPC, he should    

              Stand suspended and disciplinary action against him should quickly be initiated.

      (12) Scheme u/s 357A of CrPc should be applied with respect to the family of the deceased.

(13) Concerned police officers should surrender the weapon/ any other thing required by the investigation team for forensic analysis.

(14) Information should be provided to concerned police officers’ families and if required, the service of a lawyer/ counselor should be offered.

(15) No gallantry awards/ out-of-turn promotion unless his gallantry was proved beyond doubt.

(16) If the family of the victim is not satisfied with the investigation, he can approach the District Judge of competent jurisdiction who shall look into the merits of the complaint and address the raised grievances. 

Conclusion

All those people who are supporting and making claps to the police and making the statement that justice delivered and celebrating the encounter even distributing sweets among them.  I agree that the criminal justice system in our country is slow and it takes a lot of time in justice and very often we see that justice delayed is justice denied. And there is reform needed in our judicial system like quick hearing of the case establishment of more fast track courts in our country more appointments of judges to reduce the Burdon of cases. Giving free legal education to the needy. But encounters are not the solution in future this number can increase even also killing of innocent person in an encounter.  it is completely against the principle of due process of law. Fake encounters are nothing but mockery to the rule of law. It affects the administration of criminal justice system. This is not the way in which a civilized legal system operates exercise of power needs to be within rule of law. 

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1. Civil appeal. Nos. 6200-62001 of 2018

2. (2012) 12 scc72

3. 2014 10 scc 635

About Authors

Mohd Shamshad Ahmad
BA.LL.B 2nd Year
Faculty of Law, Integral University, Lucknow, U.P

Amal Tripathi
BA.LL.B 2nd Year
Rajiv Gandhi National University of Law Patiyala, Punjab

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