On the morning of 6th December 2019, four rape accused in the Hyderabad rape-murder case were killed in a police encounter when they allegedly attacked the police and tried to flee. This has led to a dividing public opinion between the ones who hail the killings as ‘divine justice’ and those questioning the legality of such encounter killings. The National Human Rights Commission (NHRC) has taken suo moto cognizance the matter and has launched a probe into the same and the Telangana High Court has also intervened in the matter.

Laws Dealing with Encounters

It is pertinent to note at the outset that there is no provision in the Indian law which directly authorizes an official to encounter a criminal irrespective of the grievousness of the crime committed by him/her. However, there are some enabling provisions that may be construed so as to vest officials with the power to deal with criminals including the power to use force against a criminal.

Section 100 of the Indian Penal Code, 1860 authorizes any person to exercise his right of private defense which may extend to causing death if there is reasonable apprehension in the mind of the person that there exists a threat to life or limb. However, the Supreme Court held in Extra Judicial Execution Victim Families Association v. Union of India (MANU/SC/0807/2017) that a distinction has to be drawn between the right of self-defense or private defense and use of excessive force or retaliation and that the right can be exercised only to defend oneself but not to retaliate.

Section 46 of the Criminal Procedure Code, 1973 permits a police officer to use all means necessary to effect the arrest of the person. Sub-section 2 reads as –

“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.”

Similarly, when an encounter is alleged to be amounting to murder, Exception 3 to Section 300 of the Indian Penal Code comes into play which provides that culpable homicide is not murder if the offender, being a public servant acting for the advancement of public justice exceeds the power 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 discharge of his duty and without ill-will towards the person whose death is caused.

Furthermore, Rule 189 of the Bombay Police Manual states that if without the use of firearms, it was not possible to arrest the person, the use of firearms is justifiable and the police officer is protected from the consequence and even from the liability for the death of a person fired under such circumstances.

The Supreme Court in People’s Union for Civil Liberties v. Union of India (MANU/SC/0274/1997) while commenting on the legitimacy of encounters, observed as follows –

“if the version of the police with respect to the incident in question were true there could have been no question of any interference by Court. Nobody can say that the police should wait till they are shot at. It is for the force on the spot to decide when to act, how to act and where to act. It is not for the Court to say how the criminals should be fought.”

Thus, it is evident that encounters are not only indirectly sanctioned by legislation but also considered necessary by the Supreme Court to keep a check on the harmful elements in society.

View of the Supreme Court

The Apex Court has held in Om Prakash v. State of Jharkhand (MANU/SC/0789/2012) that “it is not the duty of the police to kill the accused merely because he is a criminal.” It was further stated that ‘encounters’ amounted to “state sponsored terrorism.”

In Sathyavani Ponrai v. Samuel Rai (MANU/TN/4428/2010), the Supreme Court has held that a fair investigation is mandatory under Articles 14, 21 and 39 of the Constitution of India and that it is not only a constitutional right but a natural right as well. Further in Nirmal Singh Kahlon v. State of Punjab (MANU/SC/8189/2008), the Court observed that the right to investigation and fair trial is applicable to both, the accused and the victim under Article 21 of the Constitution of India.

Article 21clearly states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This means that a fair criminal trial, judgment based on evidence, an opportunity to the accused be heard, appeal provisions to rectify the trial court’s verdict, etc. are necessary before a person is punished. Fake or staged encounters empower the police to play the role of a judge and executioner and leads to a direct violation of Article 21 as the procedure established by law is not followed in such a case.

Further, in Prakash Kadam v. Ramprasad Vishwanath Gupta (MANU/SC/0616/2011), the Supreme Court has held that a fake encounter by a police official falls under the category of ‘rarest of rare case’ as laid down in Bachan Singh v. State of Punjab (MANU/SC/0111/1980) and therefore, the death penalty would be attracted to the concerned police official.

Recently, the Supreme Court in People’s Union for Civil Liberties v. Union of India (MANU/SC/0274/1997), while discussing extra-judicial killings has held that not even State can violate the right to life and obligation to follow the procedure established by law under Article 21 of the Indian Constitution. The Court opined that encounter killings by the police must be investigated independently as it “affects the credibility of the rule of law and the administration of the criminal justice system.” It has further issued 16 guidelines for the independent investigation of encounter killings which has to be followed by each and every concerned official. These guidelines include compulsory registration of FIRs in cases of encounters, an inquiry by the magistrate, an investigation either by the CIB or any other independent agency and ensuring that no out-of-turn promotion or gallantry reward is bestowed to the concerned officer until the genuineness of the encounter is determined.

View of the National Human Rights Commission (NHRC)

The view of the NHRC is in accordance with the framework laid down by the Supreme Court. In the Manual on Human Rights for Police Offences and in its Annual Report 1996-97, the NHRC has stated that under the laws of India, the police officials have no right to take away the life of another person. If by his act, the police official kills a person, he will be booked for culpable homicide unless it is proved to the contrary that such an act did not constitute an offence.

Further, in 2010, the NHRC has laid down guidelines/procedures to be followed in cases of deaths caused in police action. These include compulsory registration of FIR whenever a specific complaint is made against the police alleging commission of a criminal act, an expeditious magisterial inquiry in all cases of death occurring in the course of police action, all such deaths to be reported to SSP or SP of the District within 48 hours and submission of a second report to the Commission including all the material reports and documents.

Conclusion

Thus, the police should always be held accountable under the law for their acts and in no way can the heinousness of the crime committed by the accused can provide a defense to them. The Supreme Court in Nandini Sundar v. State of Chhattisgarh (MANU/SC/0724/2011)(Salwa Judum Case) while commenting on the ultimate Rule of Law, has observed that it is the primary responsibility of every organ of the State to function within the four corners of constitutional responsibility.

The spontaneous jubilations all across the country over the encounter of rapists are in celebration of five, and not just four deaths. The fifth death is that of the country’s faith in its criminal justice system and the need of the hour is to rebuild the lost trust in the justice delivery mechanism in the country and expedite the process.

The article has been written by Shivaang Maheshwari

This article was first published in the Blog namely The Criminal Law Blog