Fake Encounters

  • April 17, 2023
  • Posted by: OptimizeIAS Team
  • Category: DPN Topics
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Fake Encounters

Subject : Polity

Section: Constitution

Context:

  • The latest cases of fake encounters in Uttar Pradesh.

What is Extra Judicial Killing:

  • Extrajudicial killings are acts of violence carried out by law enforcement agencies without any judicial authorization.
  • This is usually done by the state to enforce what may be called ‘instant justice’ by circumventing the elaborate procedure established through the criminal justice system

What are the laws dealing with Extrajudicial Killings:

  • There are no provisions under the Indian law which directly authorize the police officer to encounter criminals. However, there is some enabling provision that can be construed to confer power on the police officer to use force against a criminal.
  • The Indian Penal Code, 1860
    • The law relating to the right of private defense is contained in Section 96 to 106 of the Indian Penal Code (IPC), 1860.
    • Section 96 of the IPC declares that any act done in exercise of ‘right of private defense’ is not an offense. Section 97 states the defense is available both in respect of ‘body’ and ‘property’, however Section 99 cautions that the defense is not available for inflicting more harm than is necessary for defense.
    • Section 100 specifies the various circumstances (death, grievous hurt, kidnapping, rape, acid attack etc.) under which a person committing death in exercise of private defense, will be justified.
    • Also, it provides an exception if an encounter is done by the police officer. Exemption 3 of Section 300 states that –Culpable homicide is not murdered if it is done by the offender who is a public servant exercises his right of private defence in good faith and exceeds his power conferred to him by law and causes the death of such person.
  • The Code of Criminal Procedure, 1973 also permits a police officer to use all means to arrest the accused if he forcibly resists the endeavour to arrest him or evade such arrest.

How fake encounters are Gross violation of Indian Constitution and Principles:

  • Encounter killings violate the fundamental rights of criminals, including the right to life and liberty. The right to life and liberty can only be deprived through the procedure established by law, as guaranteed by Article 21 of the Indian Constitution.
  • This right extends to all individuals, regardless of their actions or criminal record, and ensures a fair investigation and trial process.
  • The right to a fair investigation and trial process safeguards the principle of equality before the law, as enshrined in Article 14.
  • An accused person has a fundamental right to have a lawyer of their choice for their defence, as guaranteed by Article 22 of the Indian Constitution and Section 303 of the Criminal Procedure Code.
  • In fake encounters, the police assume the role of the judiciary without providing a proper opportunity for the accused to be heard in an appropriate judicial forum. This violates the principle of Audi alteram partem, which ensures that both parties have a fair and reasonable opportunity to be heard.
  • Encounter killings not only violate the fundamental rights of criminals but also threaten the principles of justice and the rule of law in India.

What are the Supreme Court Guidelines in fake encounters?

  • In 2014, PUCL vs State of Maharashtra case  the Supreme Court of India issued a set of guidelines for the investigation of encounter killings, also known as “fake encounters.” 
  • The Supreme Court then laid down the following 16 point guidelines as the standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during police encounters:
    • Record Tip-off: Whenever the police receives any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence, it must be recorded either in writing or electronic form. Such recordings need not reveal details of the suspect or the location to which the party is headed.
    • Register FIR: If in pursuance to a tip-off, the police uses firearms and this results in the death of a person, then an FIR initiating proper criminal investigation must be registered and be forwarded to the Court without any delay.
    • Independent Probe: Investigation into such death must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. It has to fulfill eight minimum investigation requirements like, identify the victim, recover and preserve evidentiary material, identify scene witnesses, etc.
    • Magisterial Probe: Mandatory magisterial inquiry into all cases of encounter deaths must be held and a report thereof must be sent to the Judicial Magistrate.
    • Inform NHRC: The NHRC or State Human Rights Commission (as the case may be) must be immediately informed of the encounter death.
    • Medical Aid: It must be provided to the injured victim/criminal and a Magistrate or Medical Officer must record his statement along with the Certificate of Fitness.
    • No Delay: Ensure forwarding FIR, panchnamas, sketch, and police diary entries to the concerned Court without any delay.
    • Send Report to Court: After full investigation into the incident, a report must be sent to the competent Court ensuring expeditious trial.
    • Inform Kin: In the case of death of an accused criminal, their next of kin must be informed at the earliest.
    • Submit Report:Bi-annual statements of all encounter killings must be sent to the NHRC by the DGPs by a set date in set format.
    • Prompt Action: Amounting to an offense under the IPC, disciplinary action must be initiated against the police officer found guilty of wrongful encounter and for the time being that officer must be suspended.
    • Compensation: The compensation scheme as described under Section 357-A of the CrPC must be applied for granting compensation to the dependants of the victim.
    • Surrendering Weapons: The concerned police officer(s) must surrender their weapons for forensic and ballistic analysis, subject to the rights mentioned under Article 20 of the Constitution.
    • Legal Aid to Officer: An intimation about the incident must be sent to the accused police officer’s family, offering services of lawyer/counselor.
    • Promotion: No out-of-turn promotion or instant gallantry awards shall be bestowed on the officers involved in encounter killings soon after the occurrence of such events.
    • Grievance Redressal: If the family of the victim finds that the above procedure has not been followed, then it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. The concerned Sessions Judge must look into the merits of the complaint and address the grievances raised therein.

What are the Current International position:

  • It must be noted that India has not ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) of 1987.
  • The main concern of the convention is the violation of rights and lack of transparency as overstepping on the function of the judiciary is fatal.

Further, even Article-6 of The International Covenant on Civil and Political Rights, to which India is a party, states that “every human being has the inherent right to life and this right shall be protected by law. No one shall be arbitrarily deprived of his life.”

Fake Encounters Polity