LEGAL IMPLICATIONS OF POLICE ENCOUNTERS
Kavya S. Suvarna, III year of B.A.,LL.B. from Sinhgad Law College, Pune
Self-defence is the right to prevent oneself and property from any kind of harm. Under the Indian Penal Code, every citizen has given the right to prevent himself/herself from physical harm in times of danger. The rights relating to private defence have been mentioned under Sections 96 to 100 of the Indian Penal Code (IPC). According to Section 96- Things done in private defence- Nothing is an offence which is done in the exercise of the right of private defence.
Police Encounter also known as extrajudicial killing is also an act of self-defence by the police when there is a possibility that they were under physical danger from the convict. Police Encounters is a very commonly used term in India and Pakistan whereby police and armed forces, in need for self-defence, encounter criminals and terrorists. However, from the 1900s to 2003, there was a great increase in the number of police encounters in Mumbai, whereby in the name of self-defence more than 1200 criminals and underworld gangsters were killed. Though this led to easy and rapid justice for many, the way self-defence was used as an excuse to justify these killings led to the questioning of the implementation of the right to self-defence and the ambit to which the justification of these killings was made. These kinds of encounters are known to be fake encounters or staged encounters. In these kinds of encounters, the convicts are shot when they are unarmed or under custody and while justifying, self-defence is used in the false pretence of the encounter by the police officials.
On 10th July 2020, Vikas Dubey gangster from Uttar Pradesh, who was accused of killing 8 policemen was shot dead in an encounter when he tried to shoot the police and also tried to escape from the hands of the police officials after the vehicle in which they were in, toppled. Also, five of his associates were killed in the encounter.
In December 2019, 4 men accused of gang rape and of burning a doctor to death were shot in an encounter, when they were taken to the spot of the incident to recreate the entire incident. These men tried to throw stones at the police and tried to escape when the police opened fire at them leading to their death.
In October 2016, eight people who were associated with the Student’s Islamic Movement of India (SIMI) escaped from Bhopal Central Jail and when the police found them, they started firing at the police when the police asked them to surrender. As a result of which, the police shot them dead. Although the reports claimed that the firing by the police was in self-defence, however, many videos regarding this encounter surfaced which suggested that the encounter was staged.
In all of these cases, the police reported that it was a case of self-defence and that they opened fire to protect themselves from the danger which was brought upon them by the convicts, and this ultimately led to the killings of the accused.
Although these encounters are appreciated by the society, as it seems to be a way of early justice for the victims and the family members of this wrongdoings and which ultimately removes the evil from the society making the country a safer place to live in, if the encounters are made under a false pretence using self-defence as a cover story by the police official, it leads to the questioning of the fundamental rights of the person encountered. Under Article 21- Right to life and personal liberty and Article 14- Right to equality of the Constitution of India, every person is entitled to fair trial and investigation.
Under the law, every convict is given a chance to prove his/her innocence. Even if the convict is guilty with the charges, there is a possibility of them improving with the punishments decided by the court. They have an opportunity to lead a better life, along with their family. And fake encounters like these, take the opportunities away from the convicts and also their family members. And hence to prevent these fake encounters or for the victims of the fake encounters to get justice for their losses and also for the police officials behind these fake encounters get punished, the Honourable Supreme Court in the case of People’s Union for Civil Liberties & An V. State of Maharashtra issued a set of 16 guidelines which made it mandatory for the magistrate to investigate the encounter deaths to ensure that no wrong was done during these encounters.
Under these guidelines, every case of encounter needs to be reported and a proper investigation of all the encounters needs to be done by the CID or the police team of another police station under the supervision of the senior officers. A magisterial inquiry needs to take place in case of deaths, which occurs due to police firings. In case of doubt in the investigation, all the information needs to be sent to the National Human Rights Commission of India (NHRC). Six monthly statements of all the cases need to be sent to the National Human Rights Commission of India (NHRC), where all the details regarding all the encounters, along with the justification of the use of force by the police officials need to be mentioned. Also, during this investigation, the police officer is supposed to surrender the pistol that has been used for the encounter. In case of misuse of the self-defence right, such that the police are using arms on the convict who is unarmed or under custody, it is considered to be an offence under Indian Penal Code (IPC) whereby disciplinary actions have to be taken against the police officials responsible for the encounter.
In 2006, Ram Narayan Gupta aide of gangster Chhota Rajan was shot dead in Versova in a staged encounter by the Mumbai Police. After this encounter, the sessions court in 2013 sentenced 21 people, including 13 policemen, to life imprisonment. They were also found guilty for conspiracy and kidnapping. This kind of punishment is what every official conspiring a staged encounter needs to be given. The cases of fake or staged encounters are examples of cold-blooded, brutal murders by those armed officials who are supposed to be the guardians of the law. And the way they misuse the rights contrary to their responsibilities; demands for much harsher punishments. The Supreme Court of India stated, "If a policeman is given an illegal order by any superior to do a fake 'encounter', he must refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death."