Encounter: Justice or state sponsored terrorism?

Profile of the author: Sejal Tayal is a law student at MAIMS (School of Law) and has a keen interest in contemporary legal issues.

A STORY WITH TOO MANY CO-INCIDENCES

Vikas Dubey was one of the most wanted criminals in Kanpur. There were more than 60 cases of robbery, murder and kidnapping pending against him. And his exploits have been talked about for years. In 2001, BJP leader Santosh Shukla was murdered and at that that time he was the then Minister of State in the Government of Uttar Pradesh. Vikas dubey was the prime accused for the murder of Santosh Shukla.

It was alleged that this murder happened within the police station with 15 policemen as eye-witness but still Dubey managed to escape. Therefore, it is alleged that Vikas Dubey had connections within almost all the political parties in Uttar Pradesh. Vikas Dubey built his crimedom in close association with politicians. He ensured a large chunk of votes for them in return for protection from law and this is the reason why he managed to escape despite having committed this grave murder.

WAS IT A FAKE ENCOUNTER?

On 3rd July, 8 policemen were killed in Uttar Pradesh and it’s no new news that the prime suspect was again Vikas Dubey. After the incident of 3rd July, the members of Vikas Dubey’s gang were killed in an encounter with the police one after the other. On 9th July, Prabhat Mishra, member of the gang was killed in an encounter and the police said that he tried to escape while they were fixing a punctured car tyre. Ranbir Shukla another member of the gang was killed while police claim that he was trying to escape, having stolen a car. Amar Dubey was killed similarly in an encounter on 8th July. Prior to that, Prakash Pandey and Atul Gupta were killed in an encounter too.

On 10th July history repeats itself, Vikas Dubey the most wanted criminal was killed in an encounter too. While he was in the police custody the police claims that he snatched a gun and tried to run away and in the process he got shot and thus killed.

A lot of people have alleged that this encounter was faux while some people already predicted that the police would stage an encounter just like the encounter of the other gang members. A retired police officer alleged that it’s unlikely that Vikas Dubey will be caught; he and his associates will be most likely encountered, they know too many big secrets of too many big people. It was said that Vikas Dubey knew a lot of secrets that could expose many powerful people. Hence, the encounter would be the safest way to protect and save the important politicians and people in the system.

NEED FOR THE GUIDELINES AND STRICTER LAWS

There is a procedure prescribed by the law for criminal investigation which is embedded in the Constitution under Article 21 as the Right to Life and Personal Liberty. It is fundamental, non-abrogable and is available to every person. Even the State cannot violate that right. Hence, it is the responsibility of the police, being the officers of State, to follow the Constitutional principles and uphold the Right to Life of every individual whether an innocent or a criminal.

Similar extra-judicial killing took place in Andhra Pradesh in which three accused of throwing acid on the faces of two women were encountered by the police in December 2008. Parallels can be drawn between both cases- the manner in which the accused were taken to the crime spot for recreating the crime scene and later cops shooting them down in an alleged crossfire. Hence, to inhibit such repetitions, the guidelines became necessary.

Although, there is no provision in the Indian law that directly authorizes the encounters of criminals, however, there are certain enabling provisions which may be interpreted differently to vest police officers with certain powers to deal with criminals. In almost every case in which encounter have taken place, it is done for self-defense of the police officer.

Under Section-96 of the Indian Penal Code (IPC), every human being has the right to private defense which is a natural and an inherent right. Similarly, Section-100 of IPC, exception 3 of Section 300 of IPC, Section-46 of the Code of Criminal Procedure (CrPC), etc. lay down similar provisions with regard to investigations in extra-judicial killings and in cases of culpable homicide.

ROLE OF POLICE

The police force has the right to injure or kill the criminal, for the sole and only purpose of self-defense or where it is imminently necessary for the maintenance of peace and order. However, nothing must be done to settle personal feuds or with any ulterior malafide motive, which could be apparent from the facts of each case.

NHRC guidelines in 2010 highlight that if the use of force cannot be justified and the death falls outside the jurisdiction of the above mentioned reasons, it is a crime and the police officer will be guilty of culpable homicide under Section-299 of the Indian Penal Code. And, the compensation must be granted to the kin of the deceased, in case the police officers are prosecuted on the basis of investigation.

SUPREME COURT & NHRC GUIDELINES

In the backdrop of the growing outrage in the country over the faux encounter, questions have also been raised over the legality and appropriateness of the police action leading to the debate that ‘whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice to the victims’. On extrajudicial killings the National Human Rights Commission (NHRC) and the Supreme Court (SC) have laid down proper guidelines and procedures that must be followed in order to prevent any abuse of power by the law enforcement agencies.

In the PUCL v State of Maharashtra case (2014), the Supreme Court laid down the 16 point guidelines as the standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during police encounters. 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 law declared under Article 141 of the Indian Constitution.

In March 1997, Justice M. N. Venkatachaliah, in the backdrop of increased complaints from the general public and non-governmental organizations related to instances of fake encounters by the police underlined that the police have not been conferred with any right to take away someone's life without any valid and just reason. The NHRC asked all states and Union Territories to ensure that police follows a set of guidelines in cases of encounter killings. NHRC acknowledges that there is a lack of Standard Operating Procedure to immediately respond to panic situations by the police. Hence, the need of the hour is to lay down standard guidelines to better train the police personnel and equip them with all relevant skills so that they can effectively tackle every dreadful situation.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

FAQ-

Q. Why one should not support encounter?

A. People support the encounter on the basis that justice system is already anyway faulty, they believe that if the case would be taken to the court then it would remain pending for ages. No justice would be served. Yes, we know that justice in India is slow and takes a lot of time and hence justice delayed is justice denied. But the problem with encounter is that it might encourage police to do more encounters tomorrow and unhindered power can cause loss of lives of innocent people as well. In 2018, India Today conducted an investment in Uttar Pradesh and they found out that there is a scheme called ‘cash for encounter’. The undercover reporter asked the police to kill a innocent man in an encounter in order to trap his competitor and to everyone’s surprise they agreed to gun down the innocent civilian in an encounter for 8 lakh rupees. Innocent people would die if encounter continues in the name of private defense.