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Law Relating To Encounter Killings By The Police

Justice V. Ram Kumar
9 Jan 2020 12:31 PM GMT
Law Relating To Encounter Killings By The Police
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"Encounter killings" or "retaliatory killings" or "extra-judicial executions" by the Police are disconcertingly on the increase now-a-days. Such killings most of which are alleged to be "fake encounters", however, evoke rapturous joy and exhilaration among the general public and also in the print, electronic and social media. Paying rich encomiums to the trigger-happy Police personnel, opinions are even aired that rapists and hardcore marauders should be exterminated through lynching in public. The main reason for this rejoice over Police excesses is attributed to the snail pace and meandering judicial system which according to some is moribund. My endeavor in this article is to examine which of the two competing views merits approval on a forensic evaluation with reference to the statutory provisions and the case law governing the matter. This article is not meant for the gallery or the legally challenged but is for the legal fraternity and those who are genuinely interested in the forensic nuances pertaining to the topic.

THE JUSTIFICATION GIVEN IN FAVOR OF ENCOUNTER KILLINGS

The usual defense pressed into service by the Policemen to justify encounter killings is that the act of killing had to be resorted to in order to save themselves from the deadly attack made by the victims. Contrary to the popular misconception that "encounter killing" is a defense available only to the Police personnel, it is pertinent to bear in mind that encounter killing is a defense available to all persons including the Police. What is projected by the encounter killers is the "right of private defense" available to them when confronted with situations of grave danger to their life as would justify the exercise of this right of private defense. The law relating to the right of private defense is contained in Sections 96 to 106 of the Indian Penal Code, 1860 ("IPC" for short). It may be profitable to reproduce those Sections hereinbelow:-

SECTIONS 96 TO 106 OF IPC

"Section 96: Things done in private defence

Nothing is an offence which is done in the exercise of the right of private defence

Section 97: Right of private defence of the body and of property

Every person has a right, subject to the restrictions contained in Section 99, to defend -

First - His own body, and the body of any other person, against any offence affecting the human body;

Secondly - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.

Section 98: Right of private defence against the act of a person of unsound mind, etc.

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Illustrations

(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

(b) A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

Section 99: Act against which there is no right of private defence

There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised:--The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1: - A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2: - A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 100: When the right of private defence of the body extends to causing death

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :--

First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly-An assault with the intention of committing rape;

Fourthly-An assault with the intention of gratifying unnatural lust;

Fifthly-An assault with the intention of kidnapping or abducting;

Sixthly-An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

8[Seventhly.-- An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]

8. Inserted by Criminal Law (Amendment) Act, 2013 (w.e.f. 03/02/2013).

Section 101: When such right extends to causing any harm other than death

If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

Section 102: Commencement and continuance of the right of private defence of the body

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

Section 103: When the right of private defence of property extends to causing death

The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely; -

First-Robbery;

Secondly-House-breaking by night;

Thirdly-Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Section 104: When such right extends to causing any harm other than death

If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong - doer of any harm other than death.

Section 105: Commencement and continuance of the right of private defence of property

The Right of private defence of property commences when a reasonable apprehension of danger to the property commences.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Section 106: Right of private defence against deadly assault when there is risk of harm to innocent person

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right or private defence extends to the running of that risk.

Illustration

A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children."

THE SUBSTANCE OF THE RIGHT OF PRIVATE DEFENSE

As can be seen from the above provisions, the right of private defense is available both in respect of the "body" and in respect of "property". The first clause of Section 97 IPC provides for the right of private defense of the body against any offence affecting human body as contained in Chapter XVI of IPC. The second clause of Section 97 IPC provides for the right of private defense of property against acts such as theft, robbery, mischief or criminal trespass or attempts to commit any of those offences which are included in Chapter XVII of IPC. While Section 96 IPC declares that anything done in exercise of the right of private defense is not an offence, Section 99 IPC contains a caution that the right of private defense is not available for inflicting more harm than is necessary for the defense. Section 100 IPC enumerates the various situations under which a person will be justified in committing the extreme step of causing "death" in exercise of his right of private defense of the body. Similarly, Section 103 IPC enumerates the situations under which a person may do the extreme step of causing "death" in exercise of the right of private defense of property. In the absence of any of the situations contemplated by Section 100 IPC, the right of private defense of the body is not available to the extent of causing death as cautioned by Section 101 IPC. Similarly, Section 104 IPC cautions that in the absence of any of the situations envisaged by Section 103 IPC, the person does not have the authority to cause the "death" of the aggressor in exercise of his right of private defense of property. The mechanics of the above provisions read along with Exception 2 to Section 300 IPC will be as follows:-

  1. If the act of causing death is committed under any of the situations falling under either Section 100 or under Section 103 IPC, the act of causing death is not an offence in view of Section 96 IPC. The offender in such a case whether it be the Police or a private person is not guilty of any offence and is fully protected.
  2. In the absence of any of the situations enumerated under Section 100 or Section 103, if the offender, instead of obeying Sections 101 or 104 IPC, exceeds the power given to him and causes death with premeditation and not without any intention of doing more harm than is necessary for such defense, he will be guilty of
    "murder"
    falling under Section 300 and punishable under Section 302 IPC.
  3. In the absence of any of the situations enumerated under Section 100 or Section 103, if the offender, instead of obeying Sections 101 or 104 IPC, exceeds the power given to him and causes death but without premeditation and without any intention of doing more harm than is necessary for such defense, his case will fall under Exception 2 to Section 300 IPC and he would be guilty of
    "culpable homicide"
    not amounting to murder falling under Section 299 IPC and punishable under Section 304 IPC.
  4. When once the defense of encounter killing put forward by by the Police officer cannot be legally supported, it becomes a "fake encounter" which is nothing short of "murder" punishable under law.

Thus, from the stage of "no offence", his act of causing death may "escalate into murder" or may get reduced to "culpable homicide" depending on the presence or absence of the above ingredients. In encounter killings by the Police, the act of causing death would be justified only if the case falls either under Section 100 or under Section 103 IPC. Even in cases of justifiable killings, can the killer Police officer be allowed to justify his act and go scot free without a trial ? If yes, then it will be a case where the Police officer would be the "complainant", the "investigator", the "prosecutor", the "Judge" and the "executioner" all rolled into one. Those who garland the Police officers who indulge in encounter killings should realize that in those cases where the Courts eventually acquit private persons by holding that they were legitimately exercising their right of private defense, the fact remains that they were unnecessarily charge sheeted by the Police. This indicates that even in cases where the Police are convinced that the alleged act was committed in lawful exercise of the right of private defense, the Police are not inclined to give the benefit of the right of private defense to such persons and close the case but they leave it to the Courts to extend the benefit of private defense to those persons. The same is the position with regard to any other exonerating defense as well and the Police fail safe by dragging the unfortunate persons to the avoidable ordeal of a trial before Court. But when it comes to the so called "encounter killings" they want to avoid the Court and reap the credit of exterminating the "alleged culprit".

THE DEFENSE OF GRAVE AND SUDDEN PROVOCATION

Close to the heels of the above right of private defense is the defense of "grave and sudden provocation" falling under Exception 1 to Section 300 IPC. Unlike in the case of an act constituting "private defense" which is excused by Section 96 IPC, the defense of "grave and sudden provocation" does not exonerate the offender from criminal liability. The gravity of an act which otherwise would have amounted to murder under Section 300 IPC, is lessened in view of the conduct of the victim providing grave and sudden provocation of such a degree as to deprive the offender of his self control thereby reducing the offence of murder into culpable homicide by virtue of Exception 1 to Section 300 IPC. Even here, the offender should not be the provocateur and the provocation should not be one on account of the lawful exercise of his duties by a public servant or on account of the lawful exercise of the right of private defense by the victim.

The above defenses are available to the victim of aggression provided those extenuating circumstances take place in the course of the same occurrence. To put it differently, when once the offence has been committed and the offender has decamped, there is no question of any outsider exercising any of the aforesaid defenses. Offences like rape or premeditated murders are usually done in secrecy. There will not ordinarily be any eye witness to such occurrences. Hence, after the occurrence is over and the disappearance of the culprits, if a Police officer were to hunt after and apprehend the alleged culprits and were to shoot them dead, he is, by all definitions, an aggressor who cannot plead the right of private defense. Moreover, in a case where there are no eye-witnesses or any CCTV footage or any other useful detail enabling tower location, how does the Police officer identify the alleged culprits ? Has he got any sixth sense to identify a rapist ? Article 21 of the Constitution of India shoots down his conduct of killing the alleged culprits as an outrageous act opposed to the procedure established by law. He must be held to belong to that class of trigger-happy policemen who indulge in retributive justice even without being sure as to who the culprit is.

JUDICIAL PERSPECTIVE OF A POLICE OFFICER

It may be useful in this context to take stock of certain observations made by the Apex Court regarding the position of a Police officer both at the entry stage and thereafter:

"The Police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the Police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes posses a threat to the discipline of the Police force". (vide para 35 of Commissioner of Police v. Mehar Singh (2013) 7 SCC 685).

"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. The Supreme Court has repeatedly admonished trigger – happy Police personnel who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State – sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the Police, who are performing their duty, are attacked and killed. In such circumstances, while the Police have to do their legal duty of arresting the criminals, they have also to protect themselves. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution". (vide para 42 of Om Prakash v. State of Jharkhand (2012) 12 SCC 72).

"The Police has not come out of its colonial image. Despite 6 decades of independence the Police is largely considered as a tool of harassment, oppression and surely not considered a friend of the public". (vide para 5 of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273).

"This Court has in recent times come across far too many instances where the Police have acted not to uphold the law and protect the citizens but in aid of a private cause and to oppress the citizen. It is a trend that bodes ill for the country and it must be promptly checked." (vide para 10 of Inder Singh v. State of Punjab (1995) 3 SCC 702).

No doubt, at the same time, we should not ignore the functional constraints confronted by the investigating Police officers and the phenomenal apathy of the members of the public to co-operate with the Police. The thin strength of Police personnel in the Police stations and the multifarious duties assigned to them and the lack of scientific gadgets and training make their task more difficult. All these aspects for and against the vigilante killers can be counterpoised only in the course of a fair trial.

TIMELY OBSERVATION BY THE C J I

Mr. Justice S. A. Bobade, the present Chief Justice of India was making a very pertinent statement when he said that doing justice by holding trial is not taking instinctual revenge on the wrongdoer and that the process of trial takes time. Justice, after a trial, may be slow but is fortified by the procedure established by law. I recall here the response from a former Judge of the High Court of Kerala expressing his disagreement with the above statement of the Chief Justice of India. All that I can say is that we have long forsaken the "eye for an eye and tooth for a tooth justice". Retribution is not the policy of a civilized society death penalty may undoubtedly be a condign punishment for gang rape and murder. But, how many cases qualify for the "rarest of the rare" ? There is no dearth of gang rape and murder cases in our country. What is lacking in most of the cases is the fool-proof identity of the culprits. Experience shows that false implication is not a rare occurrence in our country. Even among the so-called eye witnesses, how many of them are really truthful ? There are carpetbaggers and scalawags among witnesses who turn out to be cunning performers in the witness box easily swayed by partisan, political, communal or plutocratic stimuli. With what moral fortitude can a Judge send a person to the gallows on the strength of evidence which may be open to doubt ? Of course, unmerited acquittals lead to cynicism of the legal process. But then, who is to be blamed for that ? We have to curse ourselves. How many among us are prepared to single out, ostracize and ensure punishment of the erring members in our midst ? Far from doing that, we salvage them with a trade union zeal. This is the bane of our system. Justice H.R. Khanna was not uttering any non sense when he expressed the impact of wrongful punishment in the following words:-

"Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief, for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and he undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuing as far as possible, that there should be no wrongful convictions of an innocent person".

IS PUBLIC LYNCHING OF THE RAPIST A JUSTIFIABLE ACT ?

Those who are the protagonists of public lynching as a punishment for the offence of gang rape, are guided by some sort of transient emotive refluxes based on the retrograde retributive justice. Offenders are not to be punished on the strength of the reflexes of the onlookers. Fortunately or unfortunately we have a well defined penal system in India prescribing the maximum punishment for almost each and every offences. With those penal laws on the statute book, we cannot indulge in the archaic form of savage justice. The question as to whether the offender in a given case should be awarded the extreme penalty prescribed by law is again left to the discretion of the Judge. Experience shows that judicial discretion is very often not exercised judiciously. This may be the reason why in many later statutes a mandatory minimum sentence is prescribed. What does it indicate ? The legislature does not trust the Judges exercising the so called judicial discretion. But that is no reason why the judicial power should be mortgaged to an executive functionary who may not have the requisite exposure to the legal principles or the necessary training in law.

  • ARE THE INCREASINGLY HIGH ENCOUNTER KILLINGS DUE TO THE FAILURE OF THE JUDICIAL PROCESS ?

There seems to be a public clamor in favor of retributive justice on the ground that the judicial institutions are virtually moribund. A civilized society can ill afford to have in vogue such a barbarian system of revenge. Man should be guided by practical wisdom rather than instinctual reactions. No doubt, it cannot be gainsaid that the proverbial delay in Courts is a significant factor which impels the common man and the Police to take law into their hands. "Fake encounters" are a fall out of this alarming feature. I am prepared to admit that there are Judges who are lazy and lethargic in their commitments to the curial processes. But, are they the only persons to be blamed for the delayed dispensation of justice ? Of course not. The existence of a good number of conscientious Judges should not be forgotten. But they cannot liquidate the mounting arrears of cases pending before them by a magic wand. The Executive is more guilty in this regard. The roster before every trial Judge is so lengthy and seemingly unending that it is humanly impossible for him to complete the trial expeditiously. Even among the cases pending trial before him there are cases involving very grave offences like rape and murder. The safe yardstick which he can apply is "first come first served". This mode may not serve all situations especially in the case of grave offences. That explains the need for having "fast track Courts" for giving priority to specified category of cases. Rape and murder cases are not the only category of cases which call for expeditious disposal. There are narcotic offenders who through their nefarious activities are transforming the bulk of the adolescent youth into depersonalized freaks addicted to the killer drugs. Such cases also require early disposals. Even in the "fast track Courts" there is a long and serpentine queue of cases awaiting disposal. "The Hindu" daily dated 16-08-2014 carried a news item reporting the Independence Day speech of the former Chief Justice of India Mr. Justice R. M. Lodha observing that the time consuming criminal justice process itself was a punishment. The Chief Justice reportedly remarked as follows:-

"A Curious and tragic paradox is that our prisons house more under-trial prisoners than convicts. In almost all central prisons, more than 50 per cent are under-trial prisoners; in District prisons more than 72 per cent are under-trial prisoners. The process itself has become a punishment".

The job of the Sessions Judges is trial and disposal and nothing else. But, their talent and precious time are mainly wasted in attending to pre-trial steps. The time-consuming task of making the cases ripe for trial in Sessions Courts could be entrusted with the Magistrates or even retired Judicial officers. The ideal set up may be to expedite the pre-trial steps including service of summons/warrants to the accused and the witnesses as soon as the Police charge sheet is filed before Court. If a case charge sheeted by the Police is taken up for trial in minimal time, that may be an ideal situation in which it could be said that there is prompt and expeditious prosecution of the offender. This is possible only if there are sufficient number of Courts proportionate to the influx of cases and a fool-proof mechanism by which cases come up for trial in quick succession. Judges also undergo great pressure now-a-days. Unprecedented insinuations and partisan allegations are made against them rendering their job neither smooth nor easy. Trial by the media also adds to their pressure. When verdicts are rendered in favor of a particular group, Judges are glorified by such group as true harbingers of Justice. But, the very same group do not hesitate to make very cruel aspersions against the same Judges who pass verdicts not to their liking. Judges cannot satisfy all concerned since the very process of dispensation of justice involves success to one side and a failure to the other side. That is why it is said that "with every judgment, a Judge gets one sure enemy and a doubtful friend". The majesty of the judicial institution cannot be underestimated. The agony of a person falsely implicated and charge sheeted in a case is something which is to be personally undergone and endured than empathized with. When the judicial institution ultimately liberates him from the shackles of false implication, it is indeed a triumph of justice over injustice. One has to be an accused to experience the humiliation and trauma of having been called an accused. There are post-acquittal remedies by way of malicious prosecution, malicious arrest etc which can be resorted to by those who have been wronged.

There is always a limit for the judiciary to arrange matters best suited for the requirements of trial in the present day set up of escalating docket explosion. With the allotment of funds and resources there is very little which the High Courts can do unless there is Governmental intervention. The majority of those who blame the judiciary for the delay constitutes persons having only hearsay knowledge about the functioning of Courts and the pendency of cases there. But, they are very specific about the number of cases which are pending disposal before Courts. This is because there are accurate records regarding the filing and disposal of cases in our Courts. Takes for instance, the situation in any Government Secretariat or Collectorate or other public office. Do we get the total number of cases hanging fire in those establishments called "circumlocutory offices" ? No. If one were to make an honest count, he will not reach anywhere and the result would be mindboggling. Those who criticize the Courts do not have any idea about the brazen non-execution by the State and its Agencies of the decrees and sentences including death sentences passed by the Courts.

In the State of Kerala has any death sentence been executed after the year 1992 ?

Is it due to the lapse of the judiciary ?

What about the clemency petitions pending before the President of India and the Governors of the States ?

This is not to speak of the delays and deficiencies in the investigation and prosecution of offenders.

ON THE SELECTION OF COMPETENT JUDGES

Before the judiciary can boast of any supremacy over the other stakeholders in the administration of justice, it should be ensured that justice is rendered by knowledgeable persons of unquestionable integrity and rectitude. Whether it be the collegium or a selecting panel, those who compromise on merits in the selection process, are doing a great disservice to the system. I had occasion in the past to refer to the verdict of a Judge in one of the High Courts in India. He had quashed the cognizance taken by a Magistrate in respect of a non-cognizable offence. The Judge was evidently ignorant of the distinction between cognizable and non-cognizable offences on the one hand and the curial process of taking cognizance of an offence, on the other. In that case is the ignorance confined to the Judge alone ? Except in cases of suo motu judicial adventurism, it is usually a wrong and unsustainable argument by an advocate when accepted in ignorance of law which gives rise to a wrong verdict. If so, is it the Judge alone who is to be blamed ? There is at least the lawyer who, nocently or innocently advanced the untenable argument, to be blamed. If the lawyer appearing for the opposite party is equally ignorant, he also contributes to the wrong verdict. These are days when in the State of Kerala, for the inadvertent mistake committed by a lady Magistrate, some members of the lawyer community barged into her chamber and questioned her. The mistake committed by the Magistrate was the cancellation of the bail granted in a bailable offence on being satisfied from the testimony of the female complainant that the accused was indulging in intimidating her. First of all, the Advocates had no business to enter the chamber of the Magistrates and question her with regard to a judicial order passed by her. All grievances in respect of a judicial matter should be raised and redressal obtained only in open Court when the Court is in session. The Magistrate, when questioned, had confessed that she had no authority to cancel the bail in a bailable offence and requested the accused to take up the matter before the superior Court. To this, the Advocates are understood to have retorted in an intimidatory language to the Magistrate. They even wrongfully confined her by closing the door of her chamber (or Court ?) from outside. What followed was totally unwarranted happenings including a boycott of the Courts by the Advocates in many of the District centers unmindful of the fact that Advocates boycotting Courts had been deprecated by the Apex Court on more occasions than one. It appears that the Sessions Judge when moved, granted bail to the accused even without calling for the records to find out whether the accused had misused his liberty at the post-bail stage justifying cancellation of his bail. (Incidentally, this is an issue which exposes a legislative omission. While a Magistrate is given the power under Section 437 (5) Cr.P.C. to cancel the bail even in a non-bailable offence which is a graver offence, no such power is given to the Magistrate in the case of a bailable offence. The aggrieved has necessarily to approach the Sessions Judge or the High Court under Section 439 (2) Cr.P.C. for cancellation of bail in a bailable offence. I am of the view that this legislative omission should be overcome by the High Courts by initiating action for State amendments to the Cr.P.C. by incorporating an appropriate provision in Section 436 Cr.P.C.) It is heartening to note that, at the intervention of Mr. Justice S. Manikumar, the Hon'ble Chief Justice of Kerala, there has been a rapprochement resulting in restoration of peace and harmony in the Bench-Bar relationship. Experience at the Bar is definitely an added advantage before selection as a Judicial Officer. But, that does not mean that a Judge without any Bar experience is incompetent. We have had and continue to have many Judges without any Bar experience but who had been or are shining examples. In contrast, there are certain members of the Bar, who despite long years of experience at the Bar, make several unsuccessful attempts at the various competitive examinations. Hence, an attempt to generalize either way may not be proper or desirable. What I wish to emphasize is that the Bench and the Bar together can work in unison and evolve justice of such purity which no other system can satisfactorily provide.

THE RELEVANCY AND STAGES FOR DECIDING SANCTION TO PROSECUTE POLICE OFFICERS INDULGING IN ENCOUNTER KILLINGS

The Apex Court had occasion to consider whether Police officers committing encounter killings enjoy the initial insulation by way of prosecution sanction and the stage at which the question of sanction is to be considered. In Devinder Singh v. State of Punjab through CBI (2016) 12 SCC 87 = AIR 2016 SC 2090, after an exhaustive analysis of the case law on the point the Apex Court concluded as follows:-

"37. The principles emerging from the aforesaid decisions are summarized hereunder:

  1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent S.197 CrPC has to be construed narrowly and in a restricted manner.

  • .Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under S.197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

  • In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under S.197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of S.197 CrPC would apply.

  • .In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The Court is not to be a sanctioning authority.

  • Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before Appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.

  • Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

  • Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.

IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."

WHAT ARE THE GUIDELINES TO BE FOLLOWED FOR POLICE ENCOUNTER INVESTIGATIONS ?

In People's Union for Civil Liberties v. State of Maharashtra (2014) 10 SCC 635 = 2015 Cri.L.J. 610, the Apex Court noticing that notwithstanding the repeated admonitions by the Court there had been 99 Police encounters resulting in the death of 135 persons between the years 1995 and 1997 in Mumbai alone, issued guidelines to be followed in matters of investigation of such Police encounters. The following are the guidelines issued by the Apex 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. Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip - off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(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 S.157 of the Code without any delay. While forwarding the report under S.157 of the Code, the procedure prescribed under S.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). The team conducting inquiry / investigation shall, at a minimum, seek:

(a) To identify the victim; colour photographs of the victim should be taken;

(b) To recover and preserve evidentiary material, including blood - stained earth, hair, fibers and threads, etc., related to the death;

(c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;

(d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo / video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;

(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;

(f) Post - mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be Incharge / Head of the District Hospital. Post - mortem shall be videographed and preserved;

(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.

(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

(4) A Magisterial inquiry under S.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 S.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, panchnamas, sketch, etc., to the concerned Court.

(8) After full investigation into the incident, the report should be sent to the competent Court under S.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:

(i) Date and place of occurrence.

(ii) Police Station, District.

(iii) Circumstances leading to deaths:

(a) Self defence in encounter.

(b) In the course of dispersal of unlawful assembly.

(c) In the course of affecting arrest.

(iv) Brief facts of the incident.

(v) Criminal Case No.

(vi) Investigating Agency.

(vii) Findings of the Magisterial Inquiry / Inquiry by Senior Officers:

(a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and

(b) whether use of force was justified and action taken was lawful.

(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 S.357A 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 Art.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 services of a lawyer / counselling, same must be offered.

(15) No out - of - turn promotion or instant gallantry rewards 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 incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

MAINTAINABILITY OF WRIT PETITION ALLEGING HUMAN RIGHTS VIOLATION

The right of the next of kin of deceased victims to receive monitory compensation in addition to vindication of human rights violations arising out of fake encounters by the Police and armed forces of the Union, through writ petitions, has been expatiated in Extra Judicial Execution Victim Families Association ("EEVFAM") v. Union of India (2016) 14 SCC 578 = AIR 2016 SC 3400 = 2016 KHC 6468 (SC). The 2 Judge verdict in the above case has, inter alia relied on the Constitution Bench decision of the Apex Court in Naga People's Movement of Human Rights v. Union of India (1998) 2 SCC 109 = AIR 1998 SC 431 with regard to encounter killings resorted to by members of the armed forces.

C O N C L U S I O N

For an orderly and civilized society, State-sponsored terrorism or mayhem in the form of "fake encounter" by the Police is certainly not a welcome desideratum and can never be a substitute for the eventual punishment through the curial process of fair trial following the procedure established by law.

Justice V Ramkumar is a former Judge at High Court of Kerala.

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