Rise In Encounter Killings: The Result As Well As Consequence Of Eroding Credibility

INTRODUCTION

Encounter Killings have been a point of discussion since the December 2019 encounter of the four accused by Telangana police in the Hyderabad rape and murder case which though gave a sense of satisfaction to all the citizens but also raised certain higher questions. This article will help in analyzing and understanding how the rise in encounter killings has emerged as a result as well as a consequence of the erosion of the credibility of the criminal justice system. Extensive delay in the delivery of justice has led to rising impatience and a sense of helplessness among the citizens of the nation and therefore this encounter killing sent a wave of happiness. The Nirbhaya gang-rape case and the Ajmal Kasab case serve as prominent examples of how the rigorous system that needs to be followed for finally convicting the accused persons and giving them capital punishment takes at least 7-8 years even in such high profile cases. Encounter killing is perceived as a source to serve instant justice by the people, but there are many other perspectives that need to be discussed in order to actually find out whether we want instant justice in the form of encounter killings or effective criminal justice system which serves justice to all the stakeholders involved rather than just acting on instincts. The rising trust deficit is forcing us to tread on very dangerous paths where the rule of law may not be able to survive and lawlessness may start ruling the system. In order to bridge this gap that has been created over the years, there is a need to revamp the entire criminal justice system so as to regain the trust of the people in the interest of justice and rule of law.

WHY IS IT DANGEROUS?

Even though the Hyderabad incident may have made us all happy and satisfied but the rising trend of encounter killings is very dangerous as it tends to substitute the entire criminal justice system with the so-called ‘jungle-raj’. We need to appreciate the fact that though the existing system takes time to deliver justice it still serves the advantage of carrying on an in-depth inquiry into the cases at hand so that no innocent person is convicted. In the criminal cases, every step has to be taken with caution especially in those cases in which the punishment to be awarded is capital punishment so that both the sides are heard in entirety to analyze and go through every aspect of the case so that the legitimate expectations of all the stakeholders and the society at large is served. The essential question that arises after encounter killings is that what if those killed are actually innocent and had been arrested by mistake or due to some other reason. Encounter killings also give rise to the suspicion that the accused might have been killed by the police in order to reduce the pressure that they might face while investigating certain cases. Encounter killing is justified in cases where it has been executed in the right of private defense or if it is necessary to arrest the person accused of an offense punishable with death or imprisonment for life under Section 46 of the CrPC which authorizes the police to use force extending up to the causing of death, as the case may be. However, in all the other cases encounter killings cannot be used as an escape route.

In the case of Om Prakash v. the State of Jharkhand,[1] the Apex Court held that “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.” It was also held in this case that encounter killings are not recognized as legal by our criminal justice administration system and they amount to State-sponsored terrorism. But it was also recognized by the Court that in certain circumstances the police may be forced to take drastic actions to protect themselves from an attack.

EROSION OF CREDIBILITY

When a nation reaches the state where actions such as encounter killings are appreciated, it can be concluded that people have lost their faith in the criminal justice system and are looking forward to instant justice being served. However, when actions like encounter killings are appreciated, they tend to increase and might even result in the killings of many innocent people as the police will assume the power of both the investigator as well as the judge and thus will put the entire system into jeopardy. Therefore, it becomes important that the ‘16-point guideline to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation’, as laid down in 2014 by the two-judge bench of the Supreme Court comprising of the then Chief Justice R.M. Lodha and Justice Rohinton F. Nariman[2], are strictly followed so that the rule of law prevails and the criminal justice system is not put in jeopardy. The guidelines include the need for recording either in writing or electronic form the tip-offs about criminal activities, a mandatory magisterial inquiry into all cases of encounter deaths, medical aid to injured victim/criminal and recording of their statement by the magistrate, etc. In case these guidelines are not followed, then it will not only further erode the credibility of the criminal justice system but will also result in the violation of the rights of the accused who needs to be presumed innocent until proven guilty.

THE WAY FORWARD

While going through the dangers of rising encounter killings we should not remain oblivious to the fact that police in India works under very difficult circumstances while dealing with hardcore criminals with minimal and sub-standard equipment available for their own protection. Therefore, the efficiency and effectiveness of police as an institution for ensuring the safety needs to be improved by equipping them with appropriate equipment and resources. Further, the entire criminal justice system needs to be revamped for the speedy disposal of cases and to quicken the delivery of justice by setting up of fast-track courts and by undertaking other similar steps. In order to fill the gap that has widened over the years in the form of trust deficit the guidelines as laid down by the Supreme Court must be followed with full responsibility so that the rule of law prevails in the nation and the faith of the people is restored in the police force.

[Pallav Arora is a third-year law student at Rajiv Gandhi National University of Law (RGNUL), Punjab.]

1. Om Prakash v. State of Jharkhand, (2012) 12 SCC 72
2. People's Union for Civil Liberties v. the State of Maharashtra, (2014) 10 SCC 635