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Powers Of The Police With Regards To Encounters

Injustice anywhere is a threat to justice everywhere.-Martin Luther King, Jr.

Any society needs peace of mind and conducive circumstances to progress. Disturbed and anarchic societies tend to exhaust all their potential in unworthy things. On the other hand, if they have a sense of safety, security and order they can develop and prosper. This is where the role of police becomes important in society. At all times, in some form or the other, this system existed with varied responsibilities and duties.

The term police have been derived from the Latin word 'politia' which means the condition of a State. The term means, a system of regulation for the preservation of order and regulation of law. It broadly refers to the purposeful maintenance of public order and protection of persons and property from the commission of unlawful acts towards them.

It also refers to the civil functionaries charged with the duty of maintaining public order safety and enforcing the law including the prevention and detection of crime. This task becomes all the more onerous in a multicultural, multi-ethnic, and vast country like India with a big population.

Policing is the science of maintaining peace and order in an ever-changing society. Therefore, policing philosophy, policing methods, and attitudes of those responsible for policing cannot remain the same.

Encounter killing is a term used in India and Pakistan since the late 20th century to describe extrajudicial killings by the police or the armed forces, supposedly in self-defense, when they encounter suspected gangsters or terrorists. However, Critics are skeptical of the police motivation behind many of these reported incidents, and further complain that the wide acceptance of the heinous practice has led to incidents of the police staging fake encounters to cover-up the killing of suspects when they are either in custody or are unarmed.

According to the National Human Rights Commission (NHRC), false encounters are, at times, 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, says the NHRC's 2011 manual for human rights for police officers.

The second reason cited by the NHRC is that the police dilemma is exacerbated by the slow-moving criminal justice system in the country. Trials drag on almost endlessly for years and the outcome remains uncertain, particularly in respect of the criminals enjoying money, political and muscle power. Hence the pressure on the police for short cut, and extra-legal methods. Very often, there is conspiracy of the political bosses and support for the public too.

In the backdrop of the growing outrage and uncertainty in the country over the rising incidents of encounters, the encounter of gangster Vikas Dubey and his associates has been welcomed by political leaders, public figures and the masses. However, at the same time, questions have also been raised over the legality and appropriateness of the police action leading to the debate that 'whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice to the victims.

Encounters are recognized as being one of the most important and trending issues that plagues our country. It is responsible for a large number of extra judicial deaths, a sad reality in a democratic country like India. In this paper, Encounters are presented, described, analyzed, investigated and discussed in order to analyze and to broaden current knowledge of the state of encounters in India.

Relevant Laws
Indian laws do indeed empower police personnel and civilians to kill another person, provided the right to legitimate self-defense is involved.

However, Article 21 of the Constitution says:
Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.

Although, there is no provision in the Indian law that directly authorizes the encounters of criminals, however, there are certain enabling provisions which may be interpreted differently to bestow on police officers with certain powers to deal with criminals.

In almost all cases where an encounter has taken place, it is done for "self-defense" of the police officer.

Section 96 in The Indian Penal Code
Things done in private defence.-Nothing is an offence which is done in the exercise of the right of private defence.

Section 100 of the Indian Penal Code (IPC) says:
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:
  1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
  2. Such an assault as may reasonably cause the apprehen�sion that grievous hurt will otherwise be the consequence of such assault;
  3. An assault with the intention of committing rape;
  4. An assault with the intention of gratifying unnatural lust;
  5. An assault with the intention of kidnapping or abducting;
  6. 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 97 IPC says:
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:
  1. His own body, and the body of any other person, against any offence affecting the human body;
  2. 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, rob�bery, mischief or criminal trespass.

This extends to:
Section 102 in The Indian Penal Code
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 of�fence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

With regards to the police

Section 46 in The Code of Criminal Procedure, 1973
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 endeavor 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 300 in The Indian Penal Code- Murder
Exception 3.:
Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

On the off chance that none of these laws can be invoked, the police officer who causes the death of the accused would be guilty of the offence of culpable homicide and will be charged under Section-299 of the Indian Penal Code. Whether the causing of death in the encounter is justified will, therefore, depend upon the facts established and accepted after a proper investigation. And, the compensation must be granted to the kin of the deceased, in case the police officers are prosecuted on the basis of investigation.

The Guidelines To Be Followed For Police Encounter Investigations According To The Supreme Court

In People's Union for Civil Liberties v. State of Maharashtra (2014) 10 SCC 635 = 2015 Cri.L.J. 610, the Apex Court issued the following guidelines:
  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 Page 26 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 (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 personnel 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 Page 27 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.
  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. Page 28 (5) 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.
  6. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.
  7. It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
  8. 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.
  9. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
  10. 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 15 th day of January and July, respectively. The statements may be sent in the Page 29 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: (a) Self defence in encounter. (b) In the course of dispersal of unlawful assembly. (c) In the course of affecting arrest.
    4. Brief facts of the incident.
    5. Criminal Case No.
    6. Investigating Agency.
    7. Findings of the Magisterial Inquiry/Inquiry by Senior Officers:
      1. Disclosing, in particular, names anddesignation of police officials, if found responsible for the death; and (b) whether use of force was justified and action taken was lawful.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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. such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

The Guidelines To Be Followed For Police Encounter Investigations According To The NHRC

In March 1997, Justice M. N. Venkatachaliah (the then chairperson of the NHRC), in the backdrop of increased complaints from the general public and non-governmental organisations related to instances of fake encounters by the police underlined that the police have not been conferred with any right to take away someone's life, except under two circumstances:
  • If the death is caused in the exercise of the right to private defence,
  • Section-46 of the CrPC that authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.

In the light of this notion, the NHRC asked all states and Union Territories to ensure that police follows the following set of guidelines in cases of encounter killings:
  • Register:
    When the in-charge of a Police Station receives information about the deaths in an encounter, he shall record that information in the appropriate register.
  • Investigation:
    Received information shall be regarded as sufficient to suspect and immediate steps must be undertaken to investigate the relevant facts and circumstances leading to the death so as to ascertain, if any, offence was committed and by whom.
  • Compensation:
    It can be granted to the dependents of the deceased when the police officers are prosecuted on the basis of the results of the investigation.
  • Independent Agency:
    Whenever the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases for investigation are referred to some other independent investigation agency, such as State CID.

In 2010, NHRC Extended These Guidelines By Including:
  • Registering FIR:
    When a complaint is made against police alleging committing of a criminal act recognized as cognizable case of culpable homicide, an FIR must be registered under appropriate sections of the IPC.
  • Magisterial Probe:
    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).
  • Reporting to Commission:
    All cases of deaths in police action in the states shall be preliminary reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death.
  • A second report must be sent in all cases to the Commission within three months providing information like post mortem report, findings of the magisterial enquiry/enquiry by senior officers, etc.
The SC guidelines observed that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not impartial.

In my personal opinion as a law student, Encounter killings must be investigated independently as they affect the credibility of Rule of Law. There is a need to ensure that there exists a rule of law in the society that needs to be adhered to by every State authority and the masses. There is a dire need for complete overhauling of the criminal justice system and bringing out much required police reforms. We need to ensure proper physical custody of the accused in order to prevent any attack by them on the police personnel in an act of personal vendetta.

The NHRC acknowledges that there is a lack of Standard Operating Procedure to immediately respond to panic situations by the police. Hence, the need of the hour is to lay down standard guidelines to better train the police personnel and equip them with all relevant skills so that they can effectively tackle every dreadful and stressful situation. The Commission has insisted the law enforcement agencies to keep the human rights angle in their mind while dealing with arrested individuals/persons.

For several affected families, death is the only answer to brutal and cold-blooded crimes. But public responses that equate snail paced judicial outcomes and justice to immediate and quick retribution are neither moral nor justified.

Although the ever-increasing number of crimes have created an atmosphere of fear and anguish, the loss of human life even of an accused might give a wrong message to the society. Hence, it is the solemn obligation of the State to encourage police force to deter antisocial elements, and at the same time restrict the blatant abuse of power. I have full belief that the Indian society can move forward from such unlawful and barbaric attitudes and put their full trust in the rule of law.

  1. matter
Written By: Mohammed Arafat Mujib Khan

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