INTERVENTIONS MADE BY THE JUDICIARY FOR FINDING THE TRUTH IN ENCOUNTER KILLINGS.

Encounter Killings violate the fundamental rights of criminals as every person has a right to life and liberty which can only be deprived following the procedure established by law under Article 21 of the Constitution. This right extends to all persons without exception, including a fair investigation and trial even if a person is accused of a heinous crime thereby safeguarding the equality before law under Article 14.

There is a procedure prescribed by the law for criminal investigation which is embedded in the Constitution under Article 21 as the Right to Life and Personal Liberty. It is fundamental, non-derogable, and available to every person. Even the State cannot violate that right. Hence, it is the responsibility of the police, being the officers of the State, to follow the Constitutional principles and uphold the Right to Life of every individual whether an innocent one or a criminal.  

In Gian Kaur vs The State Of Punjab held, the right to life does not include the right to die or the right to be killed.

What people may call poetic justice, it's important for us as a country to realize that justice administration simply cannot work uni-dimensionally. However gruesome the crime, the appropriate justice cannot be said to be delivered unless and until principles of Natural Justice have been followed, fair trial has been conducted and innocence should be disproved.

In Om Prakash & Ors vs State Of Jharkhand, the apex court held that it is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism.

Under Article 22 of the Constitution, the right of an accused person to be defended by an advocate of his choice is recognized as a fundamental right. This is also a statutory right under Section 303 of the Code of Criminal Procedure, 1973. Moreover, the accused person can avail of all legal defenses available to him and he enjoys the presumption of innocence until proven guilty. These are the basic principle of the criminal justice system in our country.

In D.K Basu v. State of West Bengal Court observed that “custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law and held that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. Also, the person arrested must be aware of his rights to have someone informed of his arrest or detention as soon as he is put under arrest or detained.

However, in fake encounters, the police assume the role of the judiciary without giving a proper chance to the accused to be heard at an appropriate judicial forum, hence violating the principle of Audi alteram partem. So, it is the responsibility of the police to follow the constitutional principles and uphold the Right to Life of every individual whether an innocent law-abiding citizen or a dreaded criminal.

The two crucial guidelines issued by the National Human Rights Commission in 2003 were that the investigation into the encounter death must be done by an independent investigation agency and that whenever a complaint is made against the police making out a case of culpable homicide, an FIR must be registered.

These parameters have been deeply rooted in our justice system for the purpose of the deliverance of proper justice and maintenance of the status quo.

Last Month, the Supreme Court refused to entertain the plea of former politician and Umesh Pal murder accused Atiq Ahmed for protection from a fake encounter by UP Police. Later, his son was shot dead in an encounter and thereafter he, along with his brother, was gunned down while in police custody by three assailants.

On 17 April a PIL was filed in the Supreme Court to seek the constitution of an independent expert committee under the chairmanship of a retired SC Judge to inquire into the killing of Atique Ahmed and his brother Ashraf.

when an encounter takes place, one does not know whether it is fake or genuine?

Whenever extrajudicial killings take place, the person's fundamental right to defense and the cardinal principle of criminal law, the presumption of innocence, are violated because he is deprived of the opportunity to prove his case. This can only be compromised if the killing has taken place through the use of reasonable force in self-defense. However, when an encounter takes place, one does not know whether it is fake or genuine. Hence there is a need to know the truth behind the encounter.

The Supreme Court in Extra Judicial Execution Victim Families Association v. Union of India, 2016 wherein 1528 cases of extra-judicial killing were alleged as fake encounters that had been carried out by the Manipur Police and the armed forces of the Union, including the Army observed whether the allegations are completely or partially true or are entirely rubbish and whether the encounter is genuine or not is yet to be determined, but in any case there is a need to know the truth.

“It is necessary to know the truth so that the law is tempered with justice. The exercise for knowing the truth mandates ascertaining whether fake encounters or extra-judicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of kin be commensurate with, and what further steps ought to be taken, if any,” it explained.

In the present case, we can see from the videos telecasted by the media that some people are coming close to the deceased persons who are in custody and shooting them almost point blank.  Prima facie there is a security breach or negligence and carelessness from the side of police officials. While discharging their legal duty of arresting the criminals, the police also need to ensure their safety; they were supposed to protect the accused under arrest. From the telecasting stories regarding the incident, there is a suspicion that in order to escape from the criticisms the police authorities encounter the accused, by giving opportunities to some other dummy people to do the task and the police arrested them on the spot.  At this juncture, we have to connect that the deceased persons approached the apex court prior to their encounter seeking protection from fake encounters by police and there are chances for their encounter by the police or some other people with the aid of the police.

In the same case the Apex Court referring to the constitution bench’s Naga People’s Movement of Human Rights case said that it is required that every death caused by the armed forces, including in the disturbed area of Manipur “should be thoroughly enquired into” if there is a complaint or allegation of abuse or misuse of power.

The Court observed that in a society governed by the rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done. The Court gave a set of guidelines to check fake encounters including the following:

1. Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of the grave criminal offense, it shall be reduced to writing in some form (preferably into a case diary) or in some electronic form.
2. If pursuant to the tip-off or receipt of any intelligence, as above, the encounter takes place and the 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 Section 157 of the Code without any delay. While forwarding the Report under Section 157 of the Code, the procedure prescribed under Section 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
4. A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.
5. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with a certificate of fitness.

The Apex Court had directed to strictly follow the guidelines and treat them as law under Article 141 of the Constitution.

Last year in the Hyderabad encounter case the Supreme Court-appointed inquiry commission refuted the claims of the Hyderabad police and concluded that the four accused were "deliberately fired upon by the police with an intent to cause their death" and with the knowledge that the firing would result in their death.

The commission led by former Supreme Court judge, Justice VS Sirpurkar, investigated the alleged Hyderabad encounter killings of December 2019 and determined that the suspects died from injuries caused by bullets fired by the police party.

It was found that the policemen did not fire in self-defense or to re-arrest the suspects, as claimed by the State of Telangana. The commission found that the Supreme Court's directions in PUCL v. State of Maharashtra, pertaining to encounter killings, were not followed in accordance with the judgment and were only symbolically complied with at best. The commission also stated that the police cannot claim the exception of private defense.

The Commission observed in the report that "Just as Mob Lynching is unacceptable, so is any idea of instant justice. At any point in time, the Rule of Law must prevail. Punishment for crime has to be only by the procedure established by law.”

Thereby following the guidelines of the apex court, the present encounter killing has to be investigated by an independent agency or by a Court-appointed inquiry commission.  The truth behind the encounter has to be found out irrespective of whether the deceased is a criminal or not.