~ Anubhooti Shaw
States kill when they apply the death penalty, when they send their people to war, or when they carry out extra-judicial or summary executions. They can also kill by omission, when they fail to guarantee to their people access to the bare essentials for life.
~ Pope Francis
Death is related to deeds and destiny. A person cannot escape its own death which is a natural phenomenon to happen. But things get really horrifying when one's death is written on another person's hand. The scenario gets really rough when a government official who is supposed to help one out decides to take in charge of someone's death. Extra Judicial Killing is therefore, an execution of a person without any approval of legal proceeding or judicial process by any government official. Technically, there is no such legal definition to extrajudicial killings. Since the whole act is executed with any sanction therefore is this fully unlawful in nature. These extrajudicial killings are more popularly known as encounters.
An encounter infringes several rights reserved for a person. According to the Constitution, Article 20(1) and Article 21 is infringed when a person is subjected to extrajudicial killing.
No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
No person shall be deprived of his life or personal liberty except according to procedure established by law."
The new trend flowing through the veins of the country is 'fake encounters'. Fake encounter means that there will be a set up created by the officials so that they can carry out the act, blaming the whole situation under self-defence. The self defense is used to save themselves from the threat praying on their own life. This defense is available not only to the Police but also to everyone in the territory of India. This method is used either to clear threats from society or to relief personal intentions.
POLICE AND THE LAWS
The 'right to private defense' is enumerated from section 96 to 106 of the Indian Penal Code, 1850. The extent of private defence is stated under section 96 of IPC.
Section 96: 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.
Private defense of a person should be inflicted in that amount as necessary. Obviously, it is not absolute, but the power to 'kill' also has certain conditions which are declared under section 100 of the IPC.
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.
[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.]
Another provision where the police has scope to redeem themselves is under the exceptions to Section 300 (Murder).
Section 300: Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The power invested in police by the State is such that he is the saviour of the society. Thus, he also has the provision to attempt any necessary means to arrest a person under Section 46(2) of the Code of Criminal Procedure, 1973.
Section 46(2): If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
Cases leave a mark on the face of the Judiciary. And the judgments continue to be just a pile words which are neither interpreted properly nor guided in the way it should be in India.
In Commissioner of Police v. Mehar Singh , it was said, "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 possibility of his taking to the life of crimes possesses a threat to the discipline of the Police force".
Again, in Arnesh Kumar v. State of Bihar , it was observed,
"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".
Therefore, in People's Union for Civil Liberties v. State of Maharashtra, the Apex Court noticed that with repeated number of encounters taking place, there should a wide range of issued guidelines to be followed in matters of investigation of such Police encounters from thereafter.
"The following are the guidelines issued by the Apex Court: -
(1) Whenever the police are 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 in charge / Head of the District Hospital. Post - mortem shall be videographer 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, pachynemas, 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."
Encounter of UP gangster Vikas Dubey
The UP gangster had a platter of criminal accusations under his name. When an attempt of his arrest was made on 3rd July, he and his men killed 8 policemen including the DSP and 7 others were injured. Then he was apprehended on 9th July, 2020 from Ujjain, Madhya Pradesh. A petition was filed in the Supreme Court of India so that he is provided with a panic amount of security and investigation on his criminal acts. On 10th July, 2020 while transporting him to the court in Kanpur for his appearance, the vehicle met with an accident and toppled. During this session, Dubey took his chance and made an attempt to flee. Therefore, according to the police, Dubey grabbed a pistol from one of the policemen who was changing the flat tire and then was gunned down by one of the officials.
Encounter of Rapists/ Murderers of Hyderabad
The rapists/murderer of the veterinarian doctor burned to death were shot by the Telangana Police on 6th December, 2019. The four suspects were taken to the place to reorganize the whole act and then at that moment two of the four snatched the unlocked guns and ensured to attack the police. Then all of them tried to run towards the narrow-deserted way out of the location. Therefore, the police had to open fire on retailiation resulting in their instant deaths.
CONCLUSION Though the encounters are thoroughly praised by the public and the beneficiaries, but other side of the coin reflects the failure of the judicial process. It may deliver instant justice which when delayed is said to be denied but the due proceedings are meant to organise the land and not retributively act upon instincts. A man is enshrined with wisdom and knowledge which should be used rather than flowing through instinctual reactions. But that doesn't mean that the Police and the common men will take in charge of the justice. On the other hand, these encounters are activated because of the lethargic attitude of the system at every level. The urgent need of more active judges and fast track courts will not only serve the people but also bring in justice to our homes. The glory and chivalry of the police acting in fake encounters are really not necessary to mess up the system and get a green signal from the political tensions.
 Commissioner of Police v. Mehar Singh (2013) 7 SCC 685)
 Arnesh Kumar v. State of Bihar (2014) 8 SCC 273)
 People's Union for Civil Liberties v. State of Maharashtra (2014) 10 SCC 635 = 2015 Cri.L.J. 610,
● The Constitution of India
● Code of Criminal Procedure, 1973.
● Indian Penal Code, 1860.
● Extrajudicial killings: India’s long history of “fake encounters”
● Encounter Killings of Criminals A Blot on Society, This Evil System Must End
● Debriefed: The law on encounter killings and how the Supreme Court's guidelines are being flouted
● Rule of law, human rights and encounter killings of dreaded criminals
● The Celebration of Extra-Judicial Murders: Who’s Watching India?