Judicial Intervention In Encounters In India

Aiman J. Chishti

21 April 2023 5:15 AM GMT

  • Judicial Intervention In Encounters In India

    “It is necessary to know the truth so that the law is tempered with justice.” Extra Judicial Execution Victim Families Assoc.case Last Month, the Supreme Court had refused to entertain the plea of...

    “It is necessary to know the truth so that the law is tempered with justice.”

                                                                                                                                                                    Extra Judicial Execution Victim Families Assoc.case

    Last Month, the Supreme Court had refused to entertain the plea of former politician and Umesh Pal murder accused Atiq Ahmed for protection from fake encounter by UP Police.Later, his son was shot dead in an encounter and thereafter he, along with his brother, was gunned down while in police custody by three assailants.

    On 17 April a PIL was filed in the Supreme Court to seek the constitution of an independent expert committee under the chairmanship of a retired SC Judge to inquire into the killing of Atique Ahmed and his brother Ashraf.

    The issue of encounter killings in India has been a subject of intense debate and scrutiny in recent years. These extrajudicial killings, often carried out by law enforcement agencies, have raised questions about the rule of law, human rights, and accountability. In response to this, the judiciary, particularly the Supreme Court of India, has intervened and issued rulings over time to ensure that the fundamental rights of Indian citizens are protected. This article will delve into the topic of how the judiciary has intervened in encounter killings, examining some of the most important case laws and guidelines issued by the Courts.

    Need To Know The Truth

    Whenever extrajudicial killings take place, the person's fundamental right to defence and the cardinal principle of criminal law, presumption of innocence, are violated because he is deprived of the opportunity to prove his case. This can only be compromised if the killing has taken place through the use of reasonable force in self-defense. However, when an encounter takes place, one does not know whether it is fake or genuine. The question arises: do we even need to know? The same was answered by the Supreme Court in Extra Judicial Execution Victim Families Association& Anr v.Union of India & Anr,2016 wherein 1528 cases of extra judicial killing were alleged as fake encounters that had been carried out by the Manipur Police and the armed forces of the Union, including the Army.

    The Court observed whether the allegations are completely or partially true or are entirely rubbish and whether the encounter is genuine or not is yet to be determined, but in any case there is a need to know the truth.

    “It is necessary to know the truth so that the law is tempered with justice. The exercise for knowing the truth mandates ascertaining whether fake encounters or extra-judicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of kin be commensurate with and what further steps ought to be taken, if any,” it explained.

    Difference in Self Defence and Retaliation

    To distinguish the fake and genuine encounter, we need to understand the difference between self-defense and excessive retaliation.

    The Apex Court made a distinction between right to self defence and retaliation in the case ManjeetSingh v. State of H.P., (2014) the Court explained that a distinction must be drawn between the right of self-defence or private defence and use of excessive force or retaliation. Very simply put, the right of self-defence or private defence is a right that can be exercised to defend oneself but not to retaliate.

    In Rohtash Kumar v. State of Haryana,2013 the Supreme Court cautioned against the use of retaliatory force even against a dreaded criminal.

    The Court held that, “It also appears that he [the appellant] was declared absconder. But merely because a person is a dreaded criminal or a proclaimed offender, he cannot be killed in cold blood.”

    However in the case of Darshan Singh v. State of Punjab,2010 the Apex Court held that “When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also a settled position of law that a right of self-defence is only a right to defend oneself and not to retaliate. It is not a right to take revenge.”

    The Supreme Court in the Extra Judicial Execution Victim Families Association case made an important observation that the problem before the courts tends to become vexed when the victims are alleged to be militants, insurgents or terrorists. In such cases, how does anyone (including the court) assess the degree of force required in a given situation and whether it was excessive and retaliatory or not? Scrutiny by the courts in such cases leads to complaints by the State of its having to fight militants, insurgents and terrorists with one hand tied behind its back.

    This is not a valid criticism since, and this is important, in such cases, it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny, it added.

    The Court opined that,“there is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”

    In the same case the Apex Court referring to the constitution bench’s Naga People’s Movement of Human Rights case said that it is required that every death caused by the armed forces, including in the disturbed area of Manipur “should be thoroughly enquired into” if there is a complaint or allegation of abuse or misuse of power.

    The Court in Extra Judicial Execution Victim Families Association case concluded that use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible. As is evident from the Dos and Don’ts and the Ten Commandments of the Chief of Army Staff which mandates the use of minimum force, this principle would apply even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists.

    There is no reason why this principle should not apply to the other armed forces of the Union and the Manipur Police, the Court added.

    Is It justified for the police to kill the accused because he is a dreadful criminal?

    The question might arise :Is it justified for the police to kill the accused because he is a dreadful criminal?

    Merely because the accused is a dreaded criminal it is not the duty of the police officers to kill the accused, observed the Apex Court in Om Prakash and Ors. v. State of Jharkhand 2012. It added that undoubtedly, the police have to arrest the accused and put them up for trial.

    The Apex Court further explained that it had repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated.

    They are not recognised as legal by our criminal justice administration system. They amount to “State-sponsored terrorism,” the court had remarked.

    The Court in the same case also recognized that there are instances where police officers, while performing their duty, are attacked and killed. Such incidents are increasing, and the court must take notice of this fact.

    It added that while discharging their legal duty of arresting the criminals, the police also need to ensure their safety. Sanction to prosecute offers protection to the police officers, who may be compelled to take extreme measures against the criminals.

    Killings in "Encounter" Cannot Be Excused on the Pretext of Superior Officer's Orders, as in Nuremberg Trial

    The Supreme Court in the case of Prakash Kadam v. Ramprasad Vishwanath Guptahad warned 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.

    The Court highlighted that in the Nuremburg 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 an illegal order, otherwise he will be charged for murder, and if found guilty, sentenced to death.

    The Court explained that "encounter" philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen think they can kill people in the name of "encounter" and get away with it should know that the gallows await them.

    Factors To Conclude That Encounter Is Fake

    In the case of Rohtash Kumar vs State Of Haryana &Ors, 2013, an appeal was filed before Supreme Court for the registration of an FIR under Sections 302 and 201 of the IPC against five policemen who were attached to Police Station Bawal, District Rewari (Haryana) at the relevant time. They were accused of committing the murder of Sunil, the appellant's son, in a fake encounter in 2008 at Rewari Road, Narnaul. The appeal also sought a direction to the CBI to investigate the said FIR.

    The Court considered the following factors to conclude that the encounter was fake (a) Police version that deceased was aggressive not consistent with evidence on record, (b) nature and location of bullet injuries (i.e. on chest, a vital part and on back as well, thus inconsistent with aggressiveness of deceased and that too being fired from a close range i.e. 3-8 ft as deduced from blackening and tattooing around the entry point of bullets), (c) no policemen getting injured in the encounter as alleged, (e) co-accused, also present at scene of crime as alleged acquitted, (f) identification of deceased by police team on the road and then killing him in encounter not believable, (g) Police not registering an FIR when it was prima facie a case of culpable homicide, thus violating mandate of S. 154 CrPC, and (h) instead of registration of an FIR and handing over investigation to an independent agency, Tahsildar conducting an enquiry and that too in an unsatisfactory manner.

    The Court remarked that it is disturbed by the fact that the police have refused to follow the guidelines issued by the National Human Rights Commission in 2003. The two crucial guidelines which have been completely ignored by the police are that the investigation into the encounter death must be done by an independent investigation agency and that whenever a complaint is made against the police making out a case of culpable homicide, an FIR must be registered. In the instant case, the police have refused to even register the FIR on the complaint made by the appellant alleging that his son Sunil was killed by the police.

    However the Court refused to order investigation because it was impractical to investigate the matter after years have gone by since the incident. While noting that custodial death is a clear violation of prisoner’s rights under Article 21 of the Constitution of India, it molded the relief by granting compensation of 20 lakhs to the appellant father.

    How to Check the Abuse of Police Power?

    But How do we check the abuse of police power? It was answered by the Supreme Court in D.K.Basu v. State of West Bengal (1997). The Court answered that transparency of action and accountability are perhaps two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop the work culture, training, and orientation of the police force consistent with basic human values. The Court had emphasized that the training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos, it added.

    The Apex Court opined in the case of PUCL v State of Maharashtra & Ors,2014 That it would be useful and effective to structure appropriate guidelines to restore faith of the people in the police force.

    The Court observed that In a society governed by rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done.The Court gave a set of guidelines to check fake encounter including the following:

    • 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.
    • 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.
    • 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.
    • 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.
    • The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with a certificate of fitness.
    • The Apex Court had directed to strictly follow the guidelines and treat them as law under Article 141 of the Constitution.

    Rule of Law Must Prevail

    Last year in the Hyderabad encounter case the Supreme Court-appointed inquiry commission refuted the claims of the Hyderabad police and concluded that the four accused were "deliberately fired upon by the police with an intent to cause their death" and with the knowledge that the firing would result in their death.

    The commission led by former Supreme Court judge, Justice VS Sirpurkar, investigated the alleged Hyderabad encounter killings of December 2019 and determined that the suspects died from injuries caused by bullets fired by the police party.

    It was found that the police men did not fire in self-defense or to re-arrest the suspects, as claimed by the State of Telangana. The commission found that the Supreme Court's directions in PUCL v. State of Maharashtra, pertaining to encounter killings, were not followed in accordance with the judgment and were only symbolically complied with at best. The commission also stated that the police cannot claim the exception of private defense.

    The Commission observed in the report that "Just as Mob Lynching is unacceptable, so is any idea of instant justice. At any point of time Rule of Law must prevail. Punishment for crime has to be only by the procedure established by law.”

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