State Sponsored Crime in India: Encounter Analysis

Extrajudicial executions and tortures aren’t new in India but first time they have publically applauded .This term has come into popular use in India since the late 20th​century because of very high frequency of encounter killings by police in such cities as Mumbai, Chennai and Kolkata. Some of the killings have been contravencial, and the critics have alleged that the police created fake encounters as opportunities to kill suspects.

Have you ever thought that encounters of detainees or prisoners are legal or not!!!!

Most of us might have heard “Tarek pe Tarek ” , so encountering without any judicial proceedings was a congenial way to project instant justice. Is it convivial to kill suspects in an encounter? Does it not contravene the fundamental rights of the people? Is Valorise of this killing flouting of law  ?

INTRODUCTION

Killing can be practised in two ways either by the proper legal proceedings or by the encounter . Article 21 of our Indian constitution says “every person has the right to personal life and liberty according to procedure established by law.” and encounter killing is not the procedure established by law so it violates our fundamental right. Fundamental rights are immutable and non nauseous. Killing by death penalty is justified but encounter killing is not justified.

The term “extrajudicial “connotes the act is not legally authorized, contrary to the rule of law. It conveys the act does not undergo legal or judicial proceedings. The term itself designates the act is not in accordance with judicial procedure. The deadly encounter killing includes death caused by strafing, assassination indiscriminate firing slaughter, and mass killing. 

Extrajudicial killing or extrajudicial execution is the killing of people by governmental authorities or individuals without the sanction of any judicial trial. Its a kind of vigilantism..!

RIGHTS OF THE POLICE

The police have the right to injure or kill the criminal for the sole and only purpose of self defence where it is imminently necessary for maintenance of law and order.

  • Every human being has the right to private defence which is natural and inherent right.[1]
  • Authorizes the police to use force , extending up the cause of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.[2]

 

CONSTITUTIONAL PROVISIONS

As per law, the constitution is the supreme power in the land and the executive and legislative derive their authority from the constitution.

There is some procedure prescribed by law for criminal investigation which is embedded  in the constitution under article 21 as the right to life and personal liberty , article 14 and article 22(also a statutory right under section 303 of the code of criminal  procedure ,1973). .it is fundamental ,non-derogable and is available to every person even the state cannot violate that right .The procedure should be reasonable , just and fair.

Every death at police hands must be independently investigated and no officer should be rewarded; their gallantry is established beyond doubt.[3]

Ordering a mandatory magisterial inquiry into encounter cases insisted the time had come to “bring to justice the perpetrators of the crime who took law in their own hands.” [4]

An independent investigation shall be conducted by the state CID or police team of another police station.[5]

Whenever the police receive intelligence tipoff regarding criminal movements, it shall be reduced to writing either in a case diary or electronic form.[6] Details of the suspect or the location to which the party is headed may not be noted.

A report on the killing must be sent to the judicial magistrate , supreme court said disposing a PIL by  NGO peoples union for civil liberties asking framing of guidelines in encounter cases.  

STATUTORY PROVISIONS THAT ACTS AS GRIP TO  BRUTAL ACTIONS AND UNCONSTITUTIONAL  MEASURES

Armed Forces Special Power Act, 1958:

Personnel could use excessive force to maintain law and order even to the point of causing death.

Unlawful Activities  Prevention Act(UAPA) 1967:

Allows an exercise of indefinite power against the member of terrorist group irrespective of his activity.

Army Act 1950:

It gives liberty to the army to decide if any offence committed by army personnel should be carried out by criminal court or court martial for cases that can be tried in both the courts.

Code of Criminal Procedure , 1973:

Justify the use of force for the dispersal of unlawful assembly and also the use of force to the point of causing death.

REASON FOR ENCOUNTER KILLING                                                                                        

Crimes are valued in the popular culture and by the media . Police with such serious allegations termed as a “encounter specialist. “Instead of prosecution and punishment they are awarded and, there appears institutional and popular support for the killing.

Public outrage as seen in murder of Disha case and Nirbhaya case etc. In the search for instant justice, due to long trials, people give a brace to these killings.

Some police often admitted the fact that As a result of frustration those criminals are after much effort simply walk away.

Media also play an important role in promoting and highlighting police encounters.

Sometimes there might be the involvement of higher authorities in planning fake encounters in order to hide their secret illegal acts. The order to plan a fake encounter so that the suspect could not be in condition of revealing their name.

Glorification , especially on the silver screen, plays an important role in making them believe that encounter killing is a heroic act and not a violation of fundamental rights of people.[7] the government provides promotion and cash incentives to the teams involved in the encounter.

One of the objectives is to eliminate people without due process or accountability just to avoid trouble of getting in a court. Also to avoid the victim getting to present defence in a court. They just want to enable the victim to hire a lawyer and get a bail. In heinous crime the criminals are not getting but try to extend the trial to avoid death sentence.

As we can see in Hyderabad encounter killing, millions of Indians have been applauding the killing of four men alleged to have raped, and murdered a Hyderabad woman. The police claim in a story that does barely aspires to narrative credibility, while attempting to escape. This shows the public support.

Even there are many leaders project encounter as their achievement in maintaining law and order .Hence they have public as well as political support too .leaders have joined in congress, jyoti raddy scindia, the bhartiya Janata party’s rajyavardhan rathore, bahujan samaj party’s mayawati have all been cheering the same .

Though the judiciary has full power to take up such cases suo-moto, however, this has now become a very rare practice. Not only Hyderabad but also in vikas dubey encounter killing , police had faced public applaud 

Let’s take a look at some more facts of vikas dubey encounter killing!!!

As far as enquiring into dubey killing is concerned, a special investigation team had already been set up by the government to inquire into the events that started with the shootout that left eight policemen dead. The one of the three members, a senior police officer, was himself charge-sheeted in 2014 by the central bureau of investigation in a 2007 extrajudicial killing in Bareilly, with successive governments yet to sanction his prosecution.

The commission will be given the task of investigating the killing Dubey and his five associates, as well as issues such as enlargement of Dubey on bail in the past.

GUIDELINES FOR INVESTIGATING POLICE  ENCOUNTER-SUPREME COURT

In PUCL V. State of Maharashtra case (2014) , the supreme court was dealing with the writ petitions questioning the genuineness of 99 encounter killings by the police in which 135 alleged criminals were shot dead between 1995 and 1997.

16 requirements that it must be met in the matters of investigating encounter killing.[8] It was important to set the standard procedure for an independent investigation into the deaths caused in police encounters.

These guidelines are:

  1. Report to court
  2. FIR registering
  3. CID to start an independent investigation probe.
  4. magisterial probe
  5. NHRC informMedical aid to victim
  6. No delay in FIR
  7. Send report to court
  8. Inform victims family
  9. Submit half-yearly report
  10. Prompt against guilty cops
  11. Compensation to victims family
  12. Cops must surrender their weapons
  13. Inform cops family and legal aid
  14. No immediate  award for the cops involved
  15. The victim’s family can approach the court against bias in the probe.

If these guidelines are not followed then the law is flouted.

 Even if there is a most heinous criminal, the legal system cannot be hijacked either by the police or anyone else.

CONDEMNATION! 

In 2011 the Supreme Court expressed that when an execution is proved against policemen in a trial, they must be given the death sentence. Treated as rare of rarest cases court was of the opinion that such cases must be fake encounter are nothing but cold blooded murder by officers who are supposed to uphold the law. According to court, much harsher punishment for policemen was warranted because such acts were completely contrary to their duties. 

Next year Supreme Court equated encounter killing with state terrorism and held that they are not recognize as legal by Indian criminal justice system. 

CONCLUSION

In democracy like India, the approach is to establish the primacy of human life and dignity over everything else. The state or the government is the sole authority to promote and protect the rights of its citizens.  State authority mainly including police department, army department, judiciary and civic administration. 

Basically justice is not at the stake in started incidents of encounter killing but the fundamental principles of a Democratic, secular and liberal state. It shows lack of commitment to democratic principles of the Constitution. No other practice is more audacious than extrajudicial killing. 

Encounter killing sends a message that it is all right to disregard the Constitution that is fine to act outside the law. It diminishes the nation’s founding values and it delegitimizes the authority. Merely because the suspect was a dreaded criminal it was not the duty of the police to kill the person but to arrest him so he could be on trial. 

The approach of the police towards the criminal has no place in society governed by the rule of law and is Prima facie contrary to the repeated caution voiced by the Supreme Court. 

Encounter killing leads to infinite darkness and not Justice therefore it highly requires a proper independent investigation. 


[1] Under section-96 of IPC

[2] Under section-46 of CrPC  

[3] by supreme court of India

[4] bench headed by chief justice R.M. Lodha

[5] bench headed by chief justice R.M Lodha

[6] bench headed by chief justice R.M Lodha

[7] by justice Deepak Gupta

[8] by supreme court of India

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