Encounter Not A Procedure Established By Law; Condoning It A Disservice To Nation & Constitution : Justice Deepak Gupta

"The brazeness with which the law is being flouted does not protend good things for the country coming up," former Supreme Court Judge, Justice Deepak Gupta remarked recently during an interview with The Wire. The remarks were made while referring to the "blatant" violation of procedure in the Vikas Dubey encounter case. Justice Gupta pointed out that after Dubey was arrested by the Madhya Pradesh Police in Ujjain, he was not produced before a Magistrate. He clarified that even though Section 167 of the CrPC stipulates that an accused must be produced before a magistrate within 24 hrs of arrest, the words used in the provision are "forthwith". "24 hours is the upper limit of the time," he said while hinting that Dubey should have been produced before a Magistrate in MP itself.While saying that there cannot be a "final word" from him on the legality of the encounter as investigation on it is underway, he said "But there are indications that this was not an encounter, he did not run away. He was killed. That brings us to the question why he was killed".He made this statement after narrating some of the suspicious circumstances such as media being stopped from following the police convoy."An encounter is not a procedure established by law. Killing by police - it is a killing, I'm qualifying my word, that will have to come out later - but it's not a procedure established by law. So it becomes illegal by itself. When we condone such an action, when we turn a blind eye to it, we are doing a disservice to the nation, and a disservice to the Constitution"."If we are call ourselves a civilized nation, if we are to say that we are a country governed by rule of law, then there is no place for encounters", he said. He therefore recommended that an independent investigation must be carried on in the matter, as stipulated by the Supreme Court in the case of PUCL v. State of Maharashtra. In this case, the Top Court had laid down 16 guidelines to be followed during investigating encounter killings by the police. These guidelines include: An independent investigation into the incident/encounter be conducted by the CID or police team of another police station under the supervision of a senior officer;Magisterial inquiry under Section 176 of the CrPC in all cases of death which occur in the course of police firing;If on the conclusion of investigation the materials/evidence indicate 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;No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. Justice Gupta was also critical of the UP Police for demolishing Dubey's house in Kanpur, subsequent to martyrdom of eight policemen. "There's no procedure prescribed for destroying the house…you are destroying evidence," he remarked. Glorification of Encounters Justice Gupta expressed concerns over legitimacy given to police encounters and the unwarranted positive reaction that such incidents often reap. "The law has not been followed- that is worrisome. But what worries me even more is that a lot of people holding positions in power have not only not condemned the incident but have sort of supported the incident," he said. Stating that no one has the authority to take the law into their hands he remarked, "You have an investigation, prosecution and adjudication by the judges. But you can't have the investigator, prosecutor, adjudicator, jury, judge, everybody in one person. If you let be, that's very sad. It's not only the Vikas Dubey's case. It also happened in Hyderabad… Legal system cannot be hijacked by the police or anybody else." "Glorification on large screen especially of police officials who take the law into their own hands is sad. They become larger than life images," he added. Justice Gupta asserted that it is the Judiciary, which has a key role to play in order to change the mindset of the people. "I strongly believe that when a judge refuses to grant bail to any person who's committed any grave crime, then the Court is depriving them of liberty in accordance with law. But then don't we have the responsibility to see that his rights are not trammeled while he's in custody." Prolonged trials He recognized that one of the reasons why police encounters gained popular support was delay in delivering of justice. "There is no doubt that the long delays in the court, in the judicial system, in delivering Justice in cases like this does cause anguish in the minds of people…judiciary must try and decide these types of cases as fast as possible," Justice Gupta recommended. He however sought Government's support to ensure that the Justice Delivery system runs smoothly. "We need to improve the judicial system but that can ...

Encounter Not A Procedure Established By Law; Condoning It A Disservice To Nation & Constitution : Justice Deepak Gupta

Akshita Saxena

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