The term “Encounter Killing” is a word used in India since late 20Th century to describe alleged extra-judicial killings by police or armed forces, supposedly in self defence when they encounter suspected gangsters or terrorists. At that time, police used to attack the city’s underworld, and the practice spread to other large cities. Some cities like Mumbai, Chennai and Kolkata were at a very high frequency of encounter killings by police. Some of the killings have been controversial and people have alleged that Police created fake encounters as opportunities to kill suspects.
Police encounters generally means extra-judicial killing of person who are usually in custody of police by the policeman without following the rule of law. As such in Indian penal code and Criminal Procedure Code, the term police encounter is not defined specifically but there are other provision which states the meaning of police encounter.
Laws relating to encounter
So, in India not only police but every citizen of India has a right of private defence i.e., A man is justified in repelling force by force in defence of his person, habitation or property against one who manifestly intends and endeavours by violence or surprise to commit a felony upon either. The right is recognised in every system of law.
Section 96 & 100 of Indian Penal Code, provide with right to private defence. As per Section 96, no offence is made out if any act is done in self-defence. But it needs to pass the test of Section 99 of Indian Penal Code, which provides that the act should not extend to causing more harm than that is required for the purpose of self-defence. Section 100 provides when the right of self-defence extends to causing death. For an act to fall under this defence, certain conditions need to be satisfied:
- The accused should be innocent while committing that act;
- There should be absence of any safe/ reasonable mode of escaping by retreat;
- There must be apprehension of death/ severe bodily injury; and
- There should be the necessity of taking life.
Clause 3 of Section 300 of IPC, comes into light which provides that if any public servant/ any person authorized by public servant, exceeds their power to causing death while acting for advancement of justice and which they believe as lawful and mandatory for discharging his duty without any ill intention, then they will not be liable for murder. Section 46(2) of the Code of Criminal Procedure; provides a wider power to the person making arrest. It provides that if any person tries to escape arrest, the person making the arrest has power to use all necessary force required for making the arrest.
At the time of arrest, if a person accused of heinous crimes, where the punishment is life imprisonment or death penalty, in such cases, if that person tries to escape from the arrest, police may also kill that accused person if it has no other option of taking him into custody. But, say a person is accused of theft, where According to Section-379, the imprisonment may extend upto three years and not life imprisonment, so in such a case if he tries to escape from police custody, police cannot shoot a person or kill him.
Police encounters when legal and when not?
When the life of the police is in danger and the police have no other option of arrest, they may also kill an accused if he is alleged of heinous crimes and trying to escape from its custody, in such cases police encounter is legal.
Also, if during a police encounter, an innocent person in a mob dies, police is not liable for the same if it has taken all the sufficient precautions during that encounter. Sadly, even if it happens, it gives permission to not only police but every citizen of India that while practicing right to private defence, if a person shoots and if there is no other person besides saving his life, then even if the innocent person dies, law protects that situation.
But at the same time law also protects the right of alleged criminals and prohibits the police from encounter killings. Encounter killings are general exceptions that deal with general conditions of non-imputability or general grounds of exemption from criminal liability.
The legal functions of police authorities are to investigate the case and arrest the offenders of the crime in their legal capacity. In cases where there is extrajudicial killing of persons who are usually in custody, by the policeman without following the rule of law, are said to be police encounters that are not legal or fake encounters. It is staged in such a way, that it appears to be crossfire by the policemen. But law protects such persons from the act of police.
Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 14(2) of the ICCPR, provides everyone accused of a crime to be considered as innocent until otherwise.
The staged/ fake encounters (referred to as instant justice by masses) are against the key constitutional provisions Article 14 and 21 of the Indian Constitution. Article 14 provides us with Rule of Law which states that Law is supreme. Article 21 provides that every person has the right to life and personal liberty in accordance with the procedure established by law. Right to fair trial is the heart of criminal jurisprudence and the same flows from Article 21 of the Indian Constitution.
Consequences of Encounters
Police encounters are a blot on the judiciary system of our country. There are a lot of incidents in India where these killings are happening and are against the basic principle of human rights in India. The problem with encounters is that, say a criminal was “encountered” today, it was right; everyone applauded the police for doing so. The police might do even more encounters tomorrow, in a streak of more and more encounters, an innocent person will get killed one day. In fact, this has already happened in many cities.
The reporters of India Today went undercover as businessman to the police officers and said that they wanted to get a case of a bank robbery filed against their competitor, so they asked the police to nab an innocent man and “encounter” him in order to trap the competitor in a case and some police officers were ready to gun down an innocent civilian in an encounter for 8 lakh rupees.
It is extremely easy to conduct encounters of innocent people for money, promotion or publicity and this is already happening. Questions have been raised on so many encounters across the country. There are more than 800 cases where the police probably murdered an innocent person, talking about only one state.
This is the reason why the people who formed our constitution, put three pillars in place – Legislative, Executive and Judiciary. If only two pillars would carry out all the work, then they would not have made the third one. All the three pillars keep each other in check and could be called a system of checks and balances. The entire building would crumble even if just one pillar becomes more powerful.
Leading encounter cases in India
The recent case of Vikas Dubey’s Encounter, 2020 made questioned the veracity of the encounter again like many other cases. The incident took place in the early morning of July 10, 2020, where a hardcore criminal accused in recent murder of eight policemen in Kanpur on July 2, 2020 was being taken away to Kanpur from Ujjain by Uttar Pradesh Special Task Force. On the way to Kanpur, a vehicle carrying the accused is said to have been met with an accident wherein the accused tried to flee away after snatching the pistol of the policemen. It is further said that the policemen surrounded him from all the sides and requested him to surrender but he fired. In counterattack, the policemen also fired in which the accused got injured. After being taken to the hospital, he was declared dead. Apart from Dubey, five of his associates have also been killed by the police in reported encounters over the last week.
This encounter under mysterious circumstances have raised many questions on the authenticity of the Uttar Pradesh police’s claims, a lot of people on social media have also alleged that this encounter was faux. But we cannot pass any judgement till the investigation is not completed.
Some of the cases of Real Encounters
1. Bhopal jail encounter,2018
In October 2016, eight people associated with the Students’ Islamic Movement of India (SIMI) allegedly escaped from the Bhopal Central Jail and were subsequently shot dead by the state police.
The probe report stated that the deceased persons were asked to surrender, but, instead, began firing at the police and public. Therefore, the police had to open fire and even after that they showed no intention to surrender, sustained injuries and died on the spot.
At the time, many videos surfaced suggest the encounter was staged.
In June 2018, a one-man judicial commission headed by S.K. Pandey, retired judge of the Madhya Pradesh High Court, gave the police a clean chit.
2. Batla House case, 2008
The Batla House encounter took place in Delhi in 2008.On 19 September 2008, a Delhi Police special team carried out an encounter in Batla House in Jamia Nagar, where two suspected Indian Mujahedeen terrorists were killed along with inspector Mohan Chand Sharma.
The operation led by Sharma, an encounter specialist, was supposed to only gather information from residents of the area after the 2008 September blasts in Delhi. However, it escalated into a 20-minute shootout.
Many questioned the veracity of the encounter, and claimed it was staged. The National Human Rights Commission also conducted an investigation into the encounter, on a plea filed by People’s Union for Democratic Rights, and eventually gave a clean chit to the Delhi Police.
3. Veerappan Case, 2004
In October 2004, the notorious Veerappan, infamous for kidnapping, elephant poaching and sandalwood smuggling, was shot dead in an encounter by the Tamil Nadu Special Task Force. He had been on the run for a decade was tricked into getting into an ambulance as he needed to visit a hospital in Salem for his eye.
The STF fired 338 bullets at the ambulance, out of which three hit Veerappan. However, it was questioned at the time whether his encounter was staged and actually a cover-up job. But nothing was found out.
Some of the cases of Fake Encounters
1. Manipur extrajudicial killings, 2010
In February 2020, four Manipur policemen, including an inspector, surrendered before the Imphal West chief judicial magistrate in connection with the alleged fake encounter of Irengbam Ratankumar on 1 September 2010.
The case was among more than 1,500 extrajudicial killing by the Manipur Police and security forces. The Special Investigation Team (SIT) of the CBI, which was investigating the case, submitted a charge sheet against the police personnel in May 2019.
2. Ram Narayan Gupta, 2006
Ram Narayan Gupta alias ‘Lakhan Bhaiya’, who was apparently an aide to gangster Chhota Rajan, was shot dead in 2006 by the Mumbai Police when he was picked up from Vashi and killed in an allegedly staged encounter in Versova.
Following the encounter, a Mumbai sessions court in 2013 sentenced 21 people, including 13 policemen, to life imprisonment for killing Gupta. It also held them guilty of conspiring and kidnapping him. However, the prime accused, encounter specialist Pradeep Sharma, was acquitted.
3. Sadiq Jamal, 2003
In 2003, the Gujarat Police shot dead Sadiq Jamal, claiming to have information that he was planning an attack on Narendra Modi and other top BJP leaders. According to an investigation by the CBI, not only was Jamal shot dead by the police in a fake encounter, but also that the Intelligence Bureau played a role in it.
According to the CBI, Jamal did not match the profile of reports of a plan to kill Modi and others, and his past criminal record only included an altercation in 1996 and arrest for gambling in 2002. Many police inspectors and top IB officials were questioned and later accused in the case of his ‘encounter’.
In 2017, Jamal’s father filed a petition in the Gujarat High Court seeking compensation of Rs 50 lakhs from the state government.
Exercise of power needs to be within the rule of law. Fake encounters are nothing more than mockery of rule of law. It affects administration of the criminal justice system and credibility of the rule of law. In a civilized society, staged encounters can never be an alternative to the process of conviction through trial. Three different branches: legislature, executive and judiciary have been made for different purposes. The existing police officers are extremely overworked, “ The Police in India Report,2019” released by the CSDS, tells us that on an average, a police officer in our country works for fourteen hours a day and 50% of them do not even get a day off the entire week. There should be 2.8 million police officers in our country, but there are merely 1.9 million of them, which means 30% of the posts are still vacant. Speedy trial for a person convicted of serious offences is the need of the hour. People are losing their utmost faith in the judiciary due to several reasons like: years and years taken in conviction of an accused. . Our criminal justice system and police need to go through major changes.
- The Indian Kanoon
- 2. The Indian Penal Code book by Prof. S.N.Misra
- The Constitution of India book by Dr. Narinder Kumar
- The Code of Criminal Procedure book by Prof. S.N.Misra
- The Policing in India report,2019 by the Centre for the study of developing societies (CSDS)