Encounter killings in India: Duty's call or adventurism !

Recent encounter of Vikas Dubey on 10.07.2020 preceded by killings of five of his aides in a shootout by Uttar Pradesh police has caught attention of people across the country. The, so-called retaliatory action resulting in the killing of several persons puts question mark on the modus operandi of the police. The legality of such killings has been debated for long in past and once again is talk of the town. We, through this article are delving into the history of fake encounters and brutalities by police across the country.

EMERGENCE AND EVOLUTION OF FAKE ENCOUNTERS:

Encounter killing is a term used to describe extrajudicial killings of an accused or suspect of a crime, by the police and can be traced back to late 20th century in India though, an act supposedly done in self-defence or to prevent elopement of the accused/ suspects. In 1990s and mid-2000s, it is believed that Mumbai Police used encounter killings as a weapon against the underworld to curb the rampant crime, and suit followed by other states over the passage of time.

Encounter killings have been taking place all over the country over the years, at times degenerating into what are called fake encounters. Between 2000 and 2007 there have been 712 cases of police encounters in the country with UP topping the list at 324, and Gujarat figuring almost at the bottom with 17.

An RTI response revealed that NHRC registered 1782 fake encounter cases between 2000-2017; UP alone accounted for 44.55%.

In the list following Uttar Pradesh, the five states including Andhra Pradesh, Jharkhand, Bihar, Manipur and Assam recorded the next highest number of fake encounter cases. However, each one of them registered less than six percent of all the facts registered since 2000 - Andhra Pradesh (94 cases; 5.27 percent), Bihar (74 cases: 4.5 percent),

Jharkhand (69 cases; 3.87 percent), Assam (69 cases; 3.87 percent) and Manipur (63 cases; 3.53 percent). While other states like Delhi, the National Capital accounted for 40 cases, Jammu and Kashmir accounted 22 cases during the same period. No data was revealed for Goa, Arunachal Pradesh, Mizoram, Nagaland, Sikkim and Lakshadweep, as per the RTI reply.

The data for over the last five years accounted for less than 60 cases registered in states per year, except for the year 2015, when the number hiked to 140 cases. In 2017, 19 fake encounter cases have been recorded, out of which only ten have been disposed of till now. As per 2016 stats, Union home ministry identified 106 districts in 10 states that lay affected by left-wing extremism (LWE) which included Andhra Pradesh, Telangana, Bihar, Chattisgarh, Jharkhand, Maharashtra, Odisha, Uttar Pradesh, West Bengal and Madhya Pradesh. While Uttar Pradesh topped the list with 51 out of 794 cases pending, Andhra Pradesh reported 54 pending cases from the 94 registered in the state. In a recent fake encounter case in Noida, two persons were shot at by Noida Police, taking suo moto cognisance of media reports, National Human Rights commission issued notices to the Uttar Pradesh government to seek investigation.

As per NHRC’s monthly salient statistics of cases registered show that during June, 2020, 11 complaints have been registered before NHRC alleging fake encounters.

Needless to state that the said figures are exclusive of unreported encounters. Vikas Dubey's death marks 119th encounter killing since March 2017.

POLICE POWERS TO ARREST AND IMPUNITY IN LAW: STATUTORY PROVISIONS

SECTION 46 OF CRPC (POWER TO ARREST):

The provision lays out the conditions when a police personnel can cause the death of a civilian and not be charged with homicide.

Section 46: Arrest how made.

1. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
2. 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.
3. Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

SECTION 76 OF IPC (MISTAKE OF FACT):

Section 76: Act done by a person bound, or by mistake of fact believing himself bound, by law. - Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

SECTION 96 TO 106 OF IPC (RIGHT TO PRIVATE DEFENSE):

Section 96: Things done in private defence.- Nothing is an offence which is done in the exercise of the right of private defence.

Section 97: Right of private defence of the body and of property.- Every person has a right, subject to the restrictions contained in section 99, to defend-

(First) - His own body, and the body of any other person, against any offence affecting the human body;

(Secondly) - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section 98: Right of private defence against the act of a person of unsound mind, etc.- When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Section 99: Acts against which there is no right of private defence.- There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Explanation 1.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 2.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 100: When the right of private defence of the body extends to causing death.- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-

(First) - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

(Secondly) - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

(Thirdly) - An assault with the intention of committing rape; (Fourthly) - An assault with the intention of gratifying unnatural lust; (Fifthly) - An assault with the intention of kidnapping or abducting;

(Sixthly) - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Section 101: When such right extends to causing any harm other than death.- If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.

Section 102: Commencement and continuance of the right of private defence of the body.- The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

Section 103: When the right of private defence of property extends to causing death.- The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-

(First) - Robbery;

(Secondly) - House-breaking by night;

(Thirdly) - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

(Fourthly) - Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Section 104: When such right extends to causing any harm other than death.- If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.

Section 105: Commencement and continuance of the right of private defence of property.

- The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long

as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Section 106: Right of private defence against deadly assault when there is risk of harm to innocent person.- If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Illustration A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

NOTABLE ENCOUNTER CASES:

MAHARASHTRA

• On 11 January 1982, the gangster Manya Surve was shot dead by police officers Raja Tambat and Isaque Bagwan at the Wadala area. This is often referred to as the city's first recognised encounter killing. From that period until early 2003, the police killed 1,200 alleged criminals. A bollywood movie namely “Shootout at Wadala” released in 2013, is based on the said incident.

GUJARAT

• Between 2002 and 2006, 22 police encounter killings were reported in Gujarat. According to the NHRC figures, during 2002–2007, there were four alleged fake encounters in Gujarat (out of 440 fake encounters in all of India). These cases gained national media attention:
  • Sadiq Jamal (2003)
  • Ishrat Jahan case (2004)
  • Sohrabuddin Sheikh case (2005)
  • Tulsiram Prajapati case (2006)

UTTAR PRADESH

• When BJP led government came into power in the state in March 2017, a free hand was given to the Police authorities to take effective steps to eradicate crime which raised eyebrows. National human rights commission issued a notice to the state government and a bench of three judges from the supreme court of India warned and issued notice to the Uttar Pradesh government in this case.

OTHER NOTABLE CASES

• Veerappan, the notorious forest brigand, was reportedly killed by the Special Task Force (STF) in an encounter on 18 October 2004. Some human rights organisations claimed that the circumstantial evidence indicated that he was killed in a fake encounter after being tortured by the police.

• On 19 September 2008, Inspector Mohan Chand Sharma, a decorated officer Delhi-police was martyred, and two suspects were killed in the Batla House encounter case in New Delhi. The encounter led to the arrest of two suspected Indian Mujahideen (IM) terrorists, while a third managed to escape. The Shahi Imam of the Jama Masjid termed the encounter as “totally fake” and accused the government of harassing Muslims. Several political parties and activists demanded a probe into the allegations that the encounter was fake. After an investigation, the National Human Rights Commission cleared the Delhi Police personnel of any violations of human rights. While sections of the media still oppose the ruling and believe the police to be culprits, a video clip that surfaced in 2016 featured a confession from the terrorist who had escaped the encounter, about how he managed to do so and later join the ISIS, further confirming the credibility of the encounter. A bollywood movie namely “Batla House” released in 2019 is based on the said incident.
• An alleged 'encounter' in 1991, led to the 2016 sentencing of 47 policemen to life imprisonment for the slaying of 11 Sikh pilgrims in the Pilibhit district of Uttar Pradesh.
• In 2019, all four men accused in the 2019 Hyderabad gang rape were killed in a police encounter on 6 December 2019. Police alleged that one of four had gestured to the other three to flee after attacking the cops, that the four tried to run towards a deserted pathway, and that the cops opened fire in self-defense.

• On 10 July 2020, it was reported that Vikas Dubey, regarded as one of the most notorious criminals in the state, was shot dead by policemen in their own defense after the murder suspect got hands on a gun when the vehicle being used overturned.

FAKE ENCOUNTERS AND INFRINGEMENT OF ACCUSED PERSON'S RIGHTS:

✦ THE CONSTITUTION OF INDIA

PROTECTION OF LIFE AND PERSONAL LIBERTY:

Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21 of the constitution of india often referred to as “Heart and Soul of the constitution” guarantees protection of ones life and personal liberty. However, fake encounters in the garb of statutory provisions as laid down in IPC and CrPC are clear violation of right guaranteed by the constitution of India.

✦ UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out fundamental human rights to be universally protected.

RIGHT TO FAIR TRIAL:

Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

PRESUMPTION OF INNOCENCE:

Article 11: (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Therefore, in cases where the accused/suspect succumbs to the instant so called justice caused via encounters, the truth behind the allegations or suspicion also goes to the grave with the departed without there being any trial at all.

ENCOUNTERS AND INTERMITTENTLY LAW DEVELOPMENT:

WHAT IS NHRC’S TAKE ON FAKE ENCOUNTER:

Justice M. N. Venkatachaliah (The then Chairperson of the NHRC) vide letter dated 29the March, 1997 5 addressed to the Chief Ministers of states observed that instances of fake encounters by the police are on the increase and that police kill persons instead of subjecting them to due process of law if offences are alleged against them. No investigation whatsoever is made as to who caused these unnatural deaths and as to whether the deceased had committed any offences. Further, the letter observed that in Indian laws the police have not been conferred any right to take away the life of another person. If, by his act, the policeman kills a person, he commits the offence of culpable homicide except two circumstances:

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

b.Section 46 of the Criminal Procedure Code authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.

To curb the above said illegal and arbitrary position, the commission laid the following procedure to be followed by all the states and union territories:

1. When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.
2. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to

investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom.

1. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the State CID.
2. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation." Information being published on NET.

The NHRC 2003 again revised the guidelines however, the NHRC noted audacious act of most of the states and union territories of not following the recommendations/guidelines in its true spirit. The Commission also expressed concern that all states were not sending information about deaths in encounters and asserted that availability of proper statistics was necessary for the effective protection of human rights and discharge of the NHRC’s duties. Responding to public concerns that in reported encounters, sufficient efforts are not made to ascertain the cause of death and whether the deceased have committed any offences, the National Human Rights Commission directed all states and Union Territories to ensure adherence to proper police procedure and conduct of impartial investigations. Consequently, Justice G. P. Mathur (then acting chairman of NHRC) vide letter dated 12th May, 2010 conveyed the revised guidelines to be followed by States/Union Territories in all cases of deaths in the course of police action. The guidelines are:

1. When the police officer in charge of a Police Station receives information about death in an encounter with the Police, he shall enter that information in the appropriate register.
2. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in death, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID.
3. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall be investigated by State CBCID or any other specialised investigation agency.
4. 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. The relatives of the deceased, eye witness, witnesses having information of the circumstances leading to encounter, police station records etc. must be examined while
5. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police investigation.
6. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/ recommended only when the gallantry of the concerned officer is established beyond doubt.

1. (a). All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/ Superintendent of Police of the District within 48 hours of such death in the following format:
   1. Date and place of occurrence
   2. Police station, district
   3. Circumstances leading to death:
      1. Self defence in encounter
      2. In course of dispersal of unlawful assembly
      3. In the course of effecting arrest (iv) Any other circumstances
   4. Brief facts of the incident
   5. Criminal case No.
   6. Investigating agency

1. A state by the Sr. Superintendent of Police / Superintendent of Police to the Commission within three months providing following information:
   1. Post mortem report
   2. Inquest report
   3. Findings of the magisterial enquiry/ enquiry by senior officers disclosing:-
      1. Names and designation of police official, if found responsible for the death;
      2. Whether use of force was justified and action taken was lawful;
      3. Result of the forensic examination of ‘handwash’ of the deceased to ascertain the presence of residue of gun powder to justify exercise of right of self defence; and
      4. Report of the Ballistic Expert on examination of the weapons alleged to have been used by the deceased and his companions.

ANDRA PRADESH HIGH COURT:

In 2009, a five-judge Bench of the Andhra Pradesh High Court recognised in the case of ‘Andhra Pradesh Civil Liberties Committee v. Government of Andhra Pradesh’ that illegal killings by policemen have been taking place with impunity. The High Court therefore, made it mandatory to charge policemen with culpable homicide in every case of encounter killing.

However, the verdict was immediately stayed by the Supreme Court when the AP government moved in appeal ‘Government of Andhra Pradesh Vs. Andhra Pradesh Civil Liberties Committee’, and was eventually upheld in 2019.

SUPREME COURT’S GUIDELINES:

The Supreme court in the PIL “People’s Union for Civil Liberties & Anr. vs State of Maharashtra and Ors”, which was decided in 2014 by then Chief Justice of India R. M. Lodha and Justice Rohinton Fali Nariman, mandated that every custodial death would be probed by a magistrate as per Section 170 of the CrPC.

The court also issued slew of guidelines on holding an independent investigation into the encounter. The court said that the investigation shall be conducted by the CID or police team of another police station under the supervision of a senior officer at least a level above the head of the police party engaged in the encounter. The guidelines passed are:

1. Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(2)If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and 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.

1. 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 (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek:
   1. To identify the victim; colour photographs of the victim should be taken;
   2. To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;
   3. To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police involved) concerning the death;
   4. To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/ video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;
   5. It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;
   6. Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In- charge/Head of the District Hospital. Post-mortem shall be video- graphed and preserved;
   7. Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.
   8. The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

1. 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.

1. The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.
2. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.
3. It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
4. After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously.
5. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
6. Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports:

1. Date and place of occurrence.
2. Police Station, District.
3. Circumstances leading to deaths:
   1. Self defence in encounter.
   2. In the course of dispersal of unlawful assembly.
   3. In the course of affecting arrest.

1. Brief facts of the incident.
2. Criminal Case No.
3. Investigating Agency.
4. Findings of the Magisterial Inquiry/Inquiry by Senior Officers:
   1. disclosing, in particular, names and designation of police officials, if found responsible for the death; and
   2. whether use of force was justified and action taken was lawful.

1. If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.
2. As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.
3. The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.
4. An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer / counselling, same must be offered.
5. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs

that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.

1. If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

REASONS OF RISE IN FAKE ENCOUNTERS:

POLITICAL PRESSURE

False encounters are, at times, seen to be staged by police officers because there is pressure by the political masters to show quick results by means, fair or foul. The public, particularly the educated middle class, also do not mind if the police take the law in their own hands and become executioners, particularly with regard to the dreaded criminals. Shortly after taking charge of India's most populous state with the worst crime statistics, Yogi Adityanath, CM of Uttar Pradesh infamously told India TV in a June 2017 interview, "Agar apradh karenge toh thok diye jayenge (if they commit crime, we'll take them out)."

Police brutalities and transgressions often are triggered at the behest of political leaders as they fear the disclosure of their connivances with criminals.

KILLING FOR OUT-OF-TURN PROMOTION OR BOUNTY

Short cut, it is also believed to be a mean for early promotion or bounty, where a police officer adopts path of encounters for promotion just because they can get away with it. In one of such cases, Dahyaji Gobarji (DG) Vanzara who had retired from the IPS as Deputy Inspector General (DIG) on May 31, 2014, after eight years in jail for his alleged involvement in extrajudicial killings by Gujarat Police. However, in 2017 and 2019, the CBI courts had acquitted him of all charges in two fake encounter killing cases. The Gujarat government thereafter gave him a post-retirement promotion to former IPS officer DG Vanzara to the post of Inspector General (IG).

In February 2018, a 25-year-old man was shot in Noida allegedly by a sub-inspector of the Uttar Pradesh Police on the night of 3 February that year, and that the policeman was reportedly heard "telling his colleague that the encounter would earn him an out-of- turn promotion."

FEAR OF PERSONAL LIFE

It it quite apparent that encounter may be result of threat to one’s life and family safety. Being in confrontation with hardcore criminals, invariably strikes the intrinsic threat to family safety and privacy which often lead to false encounter.

SNAIL PACE JUSTICE DELIVERY SYSTEM

Police dilemma is compounded by the slow moving criminal justice system in the country. Trials drag on interminably for years and the outcome remains uncertain, particularly in respect of the criminals enjoying money and muscle power. Hence, the pressure on the police for short cut, and extra legal methods. Very often there is connivance of the political bosses and support of the public too.

LOW RATE OF CONVICTION

The national conviction rate in India for offences of the Indian Penal Code is around 46%, a statistic that varies state by state; the state with the highest conviction rate is Kerala having 84% conviction rate, while the one with the lowest rate is Bihar with 10% conviction rate.

Throughout 2016, the national conviction rate for Indian Penal Code crimes was 46.8%: 596,078 were convicted and 678,270 were acquitted/discharged; moreover, 1,060,724 were convicted of crimes and 226,546 were acquitted or discharged of them, making the conviction rate for crimes 82.4%, and giving an overall conviction rate, in India, of 64.7%, for 2016.

A comparative study suggest that China and Japan have 99.9% conviction rate whereas Israel, Canada, UK and US have 72%, 62%, 80% and 68% conviction rates respectively.

CONCLUSION:

Procedural lacunae and lack of implementation of the guidelines, help police officers get away with fake encounters. In Prakash Kadam & Etc. Vs. Ramprasad Vishwanath Gupta & Anr., 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’.

Further it was observed:

"Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them".

Audacious instances of police from time to time show the brutalities and lawlessness is rampant. Moreover, impunity is not the end rather it has been a mean for police for carrying out fake encounters and such misuse of law is a threat to law itself.

Fake encounters deprives an accused of his universal and constitutional rights and such misuse of provisions of law is a curse and threat to the law itself.

- BY RISHI KUMAR & KSHITIZ AGGARWAL, ADVOCATES