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Encounter Law in India – An insight into the legality of encounter killings in India

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Introduction

 

On the Friday morning, India woke up to the news that the gangster Vikas Dubey encounter had been killed in an encounter carried out by Uttar Pradesh Police when he snatched gun from a policeman and tried to flee. He was accused of killing eight policemen when they went to arrest him on July 3rd, 2020. 

 

Encounter killings done by police or armed forces are also termed as ‘extra judicial killings’. It has been on rise in recent years. Over the past two years, UP police have alone carried out 59 extra judicial killings. 

 

Public is divided into two segments as some allegedly called it a ‘fake encounter’ and therefore violation of certain laws and basic rights and other ones believe that the justice has been served. In this article, I will talk about the encounter laws or extra- judicial killings in India.

 

Violation of Article 21 of Indian Constitution

 

Article 21 of the Indian constitution guarantees the Right to life and personal liberty to every person residing in India. Article 21 reads:-

“Protection of life and personal liberty. No       person shall be deprived of his life or personal liberty except according to procedure established by law”

Right to life is one of the basic human right available to everyone irrespective of their caste, creed, religion, gender among others. Even state can not take away any life except as the procedure established by law. The correctness of the encounter killings done by police has been questioned time and again which violate the article 21. In a revealation by NHRC, there were 1782 cases of fake encounters in India during the period of 2000-2017. For the same purpose, supreme court laid down 16 point guidelines making independent investigation mandatory in the matters of police encounters in the case of PUCL v. State of Maharashtra. A division bench of R M Lodha and R F Nariman held that Article 21 of the Constitution of India guarantees “right to live with human dignity”. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.

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Following are the 16 guidelines issued by the supreme court:

1. Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.

 

2. If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under section 157 of the code, the procedure prescribed under Section 158 of the code shall be followed.

 

3. An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). 

      

4. A Magisterial inquiry under Section 176 of  the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code

 

5. The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.

 

6. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.

 

7. It should be ensured that there is no delay in sending FIR, diary entries, panchanamas, sketch, etc.to the concerned court.

 

8. After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the charge sheet submitted by the Investigating Officer, must be concluded expeditiously.

 

9. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.

 

10. Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the Following format along with post mortem, inquest and, wherever available, the inquiry reports:

 

11. If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.

 

12. As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.

 

13. The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.

 

14. An intimation about the incident must also be sent to the police officer’s family and should the family need the services of a lawyer/counseling, same must be offered.

 

15. No out-of-turn promotion or instant gallantry awards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.

 

16. If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of indent. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

 

Encounter Laws in India

 

It is pertinent to note that there is no such law in India which directly authorises the encounters by police. According to the guidelines of National Human Rights Commission (NHRC) published in 1997, there are only two instances Where the extra judicial killing by police wouldn’t amount to any offence , ‘if it is done in the excercise of the right of private defence’ and ‘encounter done under the purview of section 46 of CrPc. 

 

● The usual defence taken by the police to justify the encounter is that they acted in their private defence to save themselves from the attack made by the victims. It is to be noted that the right to private defence is available to all the persons including policemen. The law relating to private defence has been described in section 96 to 106 in the Indian Penal Code. Section 100 authorises causing death while acting in private defence if there’s a reasonable apprehension that there exists a threat to his life. However, in the case of Extra Judicial Execution Victim Families Association v. Union of India, the supreme court had held that there must be a distinction between the right of private defence and use of excessive force or retaliation. This right can only be exercised to defend and not to retaliate.

 

● Another provision which provides protection to the police officers in case of encounters is section 46 of the CrPc which authorises the police personnel to use force, which may extend upto causing death, as may be necessary to arrest the person accused of an offence punishable with death or life imprisonment. 

 

Other Statutes which acts as a defence to the encounters done by police

Armed Forces Special Powers Act: AFSPA was enacted in 1958 and it gives wide powers to the army, central and state police forces in the areas declared as “disturbed”. They can use excessive force to maintain law and order even to the point of killing. In a landmark judgement on 8th July 2016 in Extra Judicial Execution Victim Families Association v. Union of India, the supreme court ended the immunity enjoyed by armed forces under AFSPA. It held that death caused by armed forces in a disturbed area should be thoroughly enquired into, so that any excessive use of force could be addressed. 

 

Bombay Police Manuel: Rule 189 of the Bombay Police Manuel also provides immunity to the police personnel. In the cases where the arrest isn’t possible, the use of firearms is allowed. Policemen is protected from the consequences of such use of fireams even if they lead to death. 

 

Conclusion

 

In a democracy like India, the purpose is to establish the rule of law as nobody is above law and it treats every person equally. However, the increasing incidents of extra judicial killings certainly raises a question over the credibility of rule of law. Every encounter killing which happens outside the purview of law is not only a state sponsored crime but also violates the fundamental rights of the victim. 

 

Encounter killings must be thoroughly investigated by a independent body to ensure that  there exists a rule of law which must be adhered to by every person irrespective of their position in the society.

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