Fake encounter and personal life and liberty.

Fake encounter and personal life and liberty.

        While going through daily newspapers, articles, and news. Unfortunately I saw that there are abundance of news related to encounters. Recently, like Vikas Dubey encounter therefore in this article I insist on what is the Law regarding it ?,  Guidelines related to it and procedure established by the law because everyone has right to life with dignified life last but not least what Action should be taken in order to curb it.

'Let a hundred guilty be acquitted, but one innocent should not be convicted.'

"item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)".

Introduction

      Nowadays, encounter has become common phenomena so much so that the rapid growth of it can be seen far and wide. The statics ( National Human Right Commission, NHRC)  reveals that more or less 411 cases have been registered as a fake encounter across the country between 2015 to 2019 in which 57 from Andhra Pradesh 39 in Uttar Pradesh and 22 in Odisha etc. 

        An encounter is a word used particularly in India to represent traditional encounter in which police or armed forces are involved. Basically, encounter were uncommon, they were used as a method concocted to manage complex circumstances and as a method for self defence.

Fake encounter

          A fake encounter happen when the police or military slaughter the suspects when they are unarmed or  in custody and the police reassured that they needed to shoot in self defence.

Recent encounters

• Batla encounter case- 

 Batla encounter case have been one of the most highlighted case. It is also known as operation batla house, took place 19th September 2008 against terrorists hiding in Batla House situated at Jamia Nagar Delhi. In this encounter two terrorist were killed, two were arrested and one escaped.

• Hyderabad encounter case

     In the Hyderabad encounter killing  four alleged rapist killed by the police. The question raised about the validity of the tool of extra judicial killing.

• Telangana Encounter Case

 Telangana police shot dead all four accused in the gang rape and murder of a veterinarian in Hyderabad. 

• Encounter of gangster Vikas Dubey case

      The Gangester Vikas Dubey killed in encounter by up police on 10th July 2020

On 2nd July UP police attempted to arrest him in his Kanpur village but 8 policemen died in shootout after that he disappeared. On 9th July he was arrested in Ujjain, Madhya Pradesh the next day the police was bringing back to him Kanpur, he was shot dead on the way. Police claimed that he attempted to escape after the accident. 

      The truth is that such ‘encounters’ are, in fact, not encounters at all but cold-blooded murders by the police. In this context, in the case of Prakash Kadam vs Ramprasad Vishwanath Gupta, the Supreme Court observed that fake ‘encounters’ by the police are nothing but cold-blooded murders, and those committing them must be given death sentences, placing them in the category of ‘rarest of rare cases’.

Law on encounter

        There is no specific law or provision in India on encounter so that the legitimacy of encounter may be proved but there are many Laws, Rules and principles in order to prevent any abuse of power by the law enforcement agencies. 

Right to life and liberty

       Article 21 of Indian Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

         In this reference, In the case of Maneka Gandhi VS union of India 7 judges bench unanimously held that right to life is not limited to only physical existence even it includes right to live with dignified life.

        In the same way, In the case of Gyan Kaur vs State of Punjab 5 judges constitutional bench point out that right to life does not include right to die. Hon'ble  J. S. Verma further held that any aspect of life which makes it graceful that is incorporated under article 21 .

Procedure established by law

         Law provided under article 21 which deprives of personal life and liberty of the any person that is why it must be procedure established by the law such laws ought to be just, fair and reasonable. In this context, in the case of Maneka Gandhi VS union of India (7 Judges bench) PN Bhagwati, J. held that procedure under article 21 must be just, fair and reasonable moreover requisition of article 14  and 19  should be fulfilled. Similarly, The Supreme Court in the case of  People’s Union for Civil Liberties and Anr. Vs. State of Maharashtra & Ors, observed that: “Article 21 of the Constitution of India guarantees ‘right to live with human dignity’. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.”

Right to hearing,

 (audi altrem partem), As this is the rule of the Principal of Natural Justice that means no one can be punished without hearing. In the case of Union of India vs. T. R. Verma  SC held that according to the Principal of Natural Justice, it is required that every Party  should get opportunity to produce all relevant evidence. The evidence of opposite party should be recorded in his presence. 

Indian Penal code, 1860

      Section 96 to 106 of Indian penal code 1860 provides right to private defence of each and individuals. Section 96 states that nothing is an offence which is done in the existence of the right of private defence and section 100  of this act provides  circumstances  wherein the right to private defence of the body may be extended to causing death.

CrPC

        Section 46 (2) of this act provides that 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. Thus, it is vivid that this section empower to utilise all methods important to impact arrest of the individual by any means except in case of minor offence is not punishable with death or life imprisonment. 

 Guidelines

   On extrajudicial killings the National Human Rights Commission (NHRC) and the Supreme Court (SC) have laid down proper guidelines and procedures that must be followed in order to prevent any abuse of power by the law enforcement agencies. 

      In March 1997 keeping in the mind, increased complaints Public and non governmental organisation related to instance of fake encounter by the police M.N. venkatachaliah, Justice ( The chairperson of NHRC) draw the principle that police have not any right to take away someone's life except..

1. If the death is caused in the exercise of right of private defence

2. Section 46  of the CrPC in power to police to use force, extending up to causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.

  👉Therefore the NHRC asked all states and union territories to ensure that police should follow the following guidelines in the case of encounter killing..

1. Register: When the in-charge of a Police Station receives information about the deaths in an encounter, he shall record that information in the appropriate register.

2. Investigation: Received information shall be regarded as sufficient to suspect and immediate steps must be undertaken to investigate the relevant facts and circumstances leading to the death so as to ascertain, if any, offence was committed and by whom.

3. Compensation: It can be granted to the dependents of the deceased when the police officers are prosecuted on the basis of the results of the investigation.

4. Independent Agency: Whenever the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases for investigation are referred to some other independent investigation agency, such as State CID.

      In this reference in the year of 2010 NHRC extended these guidelines by including..

1. Registering FIR: When a complaint is made against police alleging committing of a criminal act recognized as cognizable case of culpable homicide, an FIR must be registered under appropriate sections of the IPC.

2. Magisterial Probe: A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible (preferably within three months).

3. Reporting to Commission: All cases of deaths in police action in the states shall be preliminary reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death.

4. A second report must be sent in all cases to the Commission within three months providing information like post mortem report, findings of the magisterial enquiry/enquiry by senior officers, etc.

      In this context, in the case of PUCL vs. State of Maharashtra (2014)  The Supreme court laid down the following 16 point guidelines as the standard procedure to be followed for thorough, effective and independent investigation in the case of death during police encounter and court directed that these norms must be observe strictly in all cases of death and grievous injury in police encounters by treating them as law declared under article 141  of Indian Constitution.

1. Record Tip-off: Whenever the police receives any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence, it must be recorded either in writing or electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed.

2. Register FIR: If in pursuance to a tip-off, the police uses firearms and this results in the death of a person, then an FIR initiating proper criminal investigation must be registered and be forwarded to the Court without any delay.

3. Independent Probe: Investigation into such death must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. It has to fulfil eight minimum investigation requirements like, identify the victim, recover and preserve evidentiary material, identify scene witnesses, etc.

4. Magisterial Probe: Mandatory magisterial inquiry into all cases of encounter deaths must be held and a report thereof must be sent to the Judicial Magistrate.

5. Inform NHRC: The NHRC or State Human Rights Commission (as the case may be) must be immediately informed of the encounter death.

6. Medical Aid: It must be provided to the injured victim/criminal and a Magistrate or Medical Officer must record his statement along with the Certificate of Fitness.

7. No Delay: Ensure forwarding FIR, panchnamas, sketch, and police diary entries to the concerned Court without any delay.

8. Send Report to Court: After full investigation into the incident, a report must be sent to the competent Court ensuring expeditious trial.

9. Inform Kin: In the case of death of accused criminal, their next of kin must be informed at the earliest.

10. Submit Report: Bi-annual statements of all encounter killings must be sent to the NHRC by the DGPs by a set date in set format.

11. Prompt Action: Amounting to an offence under the IPC, disciplinary action must be initiated against the police officer found guilty of wrongful encounter and for the time being that officer must be suspended.

12. Compensation: The compensation scheme as described under Section 357-A  of the CrPC must be applied for granting compensation to the dependants of the victim.

13. Surrendering Weapons: The concerned police officer(s) must surrender their weapons for forensic and ballistic analysis, subject to the rights mentioned under Article 20  of the Constitution.

14. Legal Aid to Officer: An intimation about the incident must be sent to the accused police officer’s family, offering services of lawyer/counsellor.

15. Promotion: No out-of-turn promotion or instant gallantry awards shall be bestowed on the officers involved in encounter killings soon after the occurrence of such events.

16. Grievance Redressal: If the family of the victim finds that the above procedure has not been followed, then it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. The concerned Sessions Judge must look into the merits of the complaint and address the grievances raised therein.

Conclusion

     As, recently, many encounters have been done and validity of most of them have been challenged due to absence of Justice. There are lot of guidelines have been issued by the competent authorities irrespective of NHRC or Supreme court, moreover there is well known principal named The Principle of Natural Justice the rule of this Principal is audi altrem partem (right to hear). Similarly, 'Let a hundred guilty be acquitted, but one innocent should not be convicted' that means Even if hundred guilty acquit however one innocent should not be convicted. and "item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)"also part of The Principle of Natural Justice but ended in smoke because most of time encounter agencies do not follow such principles and tear apart such guidelines and rules etc. That is why, the validity of these cases have been challenged so much so that once CM of Uttar Pradesh Mr. Yogi Adityanath stated that If they commit crime, they will be hit ( “Agar apradh karenge, toh thok diye jayenge.”)  Indeed, this is the joke with justice because now, it seems that there is no need of judiciary or other competent authorities like Arbitration etc. If it is continuous, a day comes, everyone will be deprived of justice and criminalization will be prevailed everywhere. Thus, Now it is the need of hour that all existing guidelines, set principles and law should be followed strictly and competent authority also enact a specific act or rule regarding encounter so that arbitrariness may not be prevailed and Justice may be provided to all be time.

Suggestions

• Existing guidelines issued by the NHRC and supreme court should be followed strictly.

• Government should make a specific law on encounter.

• Awareness should be speeded.

• There should be specific punishment in the case of violation of such rules.

                                  ✍️_Vikas_Deep