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Continuing The Squabble Between Encounter And Target Killing

The controversy between encounter and target killing has been in news on and off for over a decade now. It is undisguised and has apparently amassed massive support of the public at large as a form of instant justice that in turn escapes the long and tedious process of judicial prosecution but is it an ideal manoeuvre and is it worthy of glorification as has been fancied and promoted by several motion pictures and their audience?

There certainly are several defects in our judicial system that leads to a rather long and humdrum process of securing justice, but rather than devising measures of correcting it, is the promotion of extra-judicial killings a fitting alternative?

Also, it is intriguing how just an advancement in a well-established controversy tends to scrape off public attention from other major issues, for example, our grumbling economy and aggravating COVID-19 conditions. But well, that won't be the concern of this article because these controversies too are quite likely to be forgotten long before you know, so it's rather important to discuss facts, raise questions and put forward arguments while this topic is still in news. After all, differentiating between an encounter and a target killing without proper discussion over facts and legalities would only be a matter of perception.

Vikas Dubey, a name that has amassed immense attention recently, a dreaded gangster-turned-politician, who was eventually arrested by Ujjain police in Madhya Pradesh was killed in an encounter by UP Police. He was said to have at least five dozen cases of brutal and violent offences against him, which he certainly balanced well with a strong political backing. He was even preparing to run for 2022 UP Assembly Elections. He indeed was a symbol of a convenient schmooze between the political and criminal world.

But these strong connections of a criminal with our political organisations raise a significant question mark over the actual functioning of our governing institutions and their morbid associations that are inherently fatal to a democratic society.

Timeline of the case
July 2- July 3
Vikas Dubey got key inputs, with significant help from his connections within the police department, about a party that was on its way to arrest him in a case of attempted murder.
He then arranged a blackout and with the help of his gang ruthlessly shot down 8 police personnel and fled the scene.
Four hours later, two suspects, Prem Prakash Pandey and Atul Dubey were shot dead by Kanpur Police.
July 3 - Demolition of Dubey's house in Bikri village.
July 4 - S.O. Vinay Tiwari and Inspector K.K. Sharma suspended as their call detail records confirmed their conversation with the gangster.
July 8 - Amar Dubey nabbed and killed by the STF and Prabhat Mishra arrested in Faridabad
Borders of the state were sealed and the STF and 50 state police teams raided all his hideouts and picked up Vikas's relatives.
He was spotted at Faridabad and yet again managed to flee their capture.
July 9 - Prabhat Mishra shot dead in an encounter
July 14 - In Ujjain, Vikas revealed his identity, and surrendered to MP Police. Handed over to UP STF later.
July 15 - Reached Kanpur in the morning, his SUV overturned, attempted to flee and was killed in an encounter by UP Police.
Also, there have been reports that the media personnel, who were following the escort of the gangster, were blocked from proceeding few minutes before the whole scene took place, this has raised questions over the encounter being a genuine one and its possibility of being a hoax.

Critical analysis of the UP Police encounter

First of all, the noxious and inherent corruption within the department is quite visible by two major facts, one, Vikas being tipped off about the police raid, and second, direct involvement of a Station Officer and Inspector in the offence, as evidenced by their call logs. Also, inefficiency and lack of co-ordination within the police department is noticeable.

Secondly, the measures taken to nab Vikas Dubey are quite confusing, rather than having a complete investigation and a thorough raid within his house in order to find more clues regarding his afflictions and illegal businesses, the Kanpur police got the whole house demolished just a day after the attack. It is a questionable measure and raises several serious questions on the intentions of the police.

Thirdly, the number of the coincidences of Vikas's confidants being nabbed and killed or maybe encountered is rather a lot, and this leads to a common assumption that police are rather killing all the suspects, and under the same pressure Vikas too seems to have surrendered, i.e., in order to save his life.

Fourthly, when state borders were sealed, how did Vikas manage to flee from Faridabad to Ujjain, Madhya Pradesh, and if he intended to surrender why did he not surrender to UP Police?
Lastly, why would a person who surrendered at his own will, try to flee the custody again, and where did he planned to go to when all his hiding places in UP were already raided by police, also when his lieutenants were already nabbed and killed?

Vikas could have been a ticket to unravel various mysteries of both, the political and criminal worlds. He could have helped in filtering the adulterated police department. Though there is also a common understanding that just his taking names wouldn't have helped in nabbing the culprits. After all, he's a gangster, how could one believe his claims, pieces of evidence would still be required.

Legal Analysis
If the encounter by and reason turned out to be a fake, it would smoulder the very fundamentals of a democratic society. The concern would then be, whether police personnel can be granted such power and if this way of providing judgement can be considered the same as the judgements delivered by honourable courts, the former being more speedy alternative as it is not depended upon arguments and pieces of evidence, has no duty to provide the other party with a chance to defend itself, it just is an INSTANT JUSTICE.

The welcome of such acts of extra-judicial killings by politicians, public figures and the public at large has made its legalities a mandatory discussion Honourable Supreme Court and National Human Rights Commission have laid down proper guidelines and procedures that should be followed in order to prevent any abuse of power by any law enforcing authority. Though it is worth mentioning that there are no provisions in Indian Law that authorize the encounters of criminals directly but certain provisions which can be interpreted in a way to provide police officers with certain power to deal with the criminals.

In March 1997, Justice M.N. Venkatesh (the then chairperson of the NHRC) underlined that the police have not been conferred with any right to take away a person's life, except under certain situations, i.e., if death is caused in the exercise of the right to private defence or while the application of Section 46 of CrPC. Section 46 of CrPC authorises police to use force, extending up to causing death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment of life. Later in 2010, NHRC extended its guidelines
In PUCL vs State of Maharashtra case, 2014, Supreme Court laid down the following 16 point guidelines that should be strictly followed in all cases of death and grievous injury during police encounters and rendered them the status of law under Article 141 of the Indian Constitution.
  1. Any intelligence or tip-off regarding a grave criminal offence must be recorded.
  2. An FIR initiating proper criminal investigation must be registered and forwarded to court.
  3. The investigation by an independent CID team that has to fulfil eight minimum investigation requirements must be done.
  4. A magisterial inquiry is mandatory.
  5. NHRC or SHRC must be informed with immediate effect.
  6. Medical Aid must be provided to the victim/criminal and a magistrate/ medical officer must record his statement.
  7. Ensure forwarding FIR, sketches, police diary entries, etc. to the concerned court without delay.
  8. Expeditious and proper trial.
  9. Victim/criminal's next kin must be informed at the earliest.
  10. Bi-annual reports must be sent to NHRC of all encounter killings.
  11. Disciplinary action, as per IPC, must be taken against a police officer found guilty of wrongful encounter.
  12. Compensation scheme as described under Section 357-A CrPC must be applied.
  13. Concerned police officers must surrender their weapons for forensic and ballistic analysis, as per the rights under Article 20 of Constitution.
  14. Legal Aid to the officer must be provided.
  15. No promotion or instant gallantry awards to be bestowed to the officers involved.
  16. Victim's family can complain to Sessions Judge if it feels that these guidelines have not been followed.
Also, Right to Life and Personal Liberty (Article 21) is a fundamental and intangible right available to every person and police, being the officers of state, are responsible to uphold Constitutional provisions and not derogate them.

The glorification of extrajudicial killings and its horrendous misuse

There is a public opinion that the rule of law fails to provide justice in cases concerning powerful offenders and is rather time-consuming. Various evident defects of Indian judiciary seem to support this view.

The pendency of cases can make anyone want to tear their hair off and the drastic difference between the no. of judges and pending cases as there are around 10.5-11 judges for over one million population. Such a large number of pending cases has indeed defeated the purpose of the judicial system. Lack of transparency, especially in the appointment of judges, is another problem faced by one of the world's largest judicial system.

Though there is no denying the fact that if the Indian judiciary effaces these issues it would make it the world's best and most credible judicial system. What is important right now is the restoration of faith of common folk in the judicial processes because the other option they seem to support in order to obtain instant justice might turn out to be the collapse of our fundament democratic principles.

Horrendous misuse of encounters in future may turn out to be catastrophic for the society in general. The outrage of people all through the country and demands for the instant killing leads to abandonment of the rule of law (Article 14). This for sure is not the first time when extra-judicial killing has been supported by the public at large. From the Ishrat Jahan case in 2004 to last year's Hyderabad encounter the question of abuse of power by law enforcing authorities have been raised again and again. The public sentiments though seem to support such encounters as seen in the Warrangle encounter case (2008), Hyderabad encounter case (2019) and the present-day Kanpur encounter case (2020).

No matter how ubberima fide the actions of government are or whether this encounter was genuine or premeditated, in world's largest democracy, it is a big question mark on the Judicial body, under the nose of which, all this is happening. Therefore, it may further be concluded by corroborating the very fact, that we are in dire need of time-bound and fair legal procedure. For this is not the first time when the genuineness of a police encounter has come under question and such reasons could continue to be used in future to justify some injustice rendered to an innocent.

Written By:
  1. Himashri Yadav &
  2. Huzaifa Shaikh

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