~ 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
INTRODUCTION
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.
"Article 20(1):
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."
"Article 21:
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 [1], 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 [2], 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;