Lucknow, UP, India, 226028

ENCOUNTER OR CUSTODIAL DEATH- A TALE OF RAGE

Aadyasha

Encounter, the term we have heard in the past and has been famous since 1982, which was recorded to be the first ever official encounter in our country. On 11 January 1982, a gangster named Manya Surve was shot dead by two police officers namely Raja Tambat and Isaque Bagwan at the Wadala area of Mumbai, Maharashtra. Following the history, in a stretch of 20 years i.e. in the year 2002-2003 there were reportedly 1200 encounters in the nation. According to the then published newspaper articles, there were 18 police officials present at the spot to nab Surve, after locating those officers, Surve took out his revolver and before he could shoot or fire, the police officers had already shot 5 shots of bullet on his chest and shoulder. This instance somehow depicts, the defence of self-defence taken by the police officials in the encounters they have committed since then, a ground to protect themselves from investigations.

Our Judiciary believes in Right to Justice under Article 39 A. This suggests that every accused and victim has a right to justice. Principle followed by the Indian Judiciary is “Innocent until proven Guilty”; this principle is known as ‘the Presumption of Innocence principle’. This means every offender has the right to go to trial, every victim has the right to approach the court to seek justice, this refers to fair treatment to under trial prisoners, no brutality to be inflicted against accused under custody, right against self -incrimination to name a few. What surprises is the behaviour of the citizens of this nation, their behaviour towards custodial killings, under trial Prisoners, Gangsters, Dons and Offenders vary with their perception and gravity of the offence. This phenomenon of negativity against the offenders is so deeply clung to the sub conscious minds of the people that they honour the murderers for the extra judicial killings they conduct.

The public itself criticised the custodial death of the father and son duo Mr P Jayaraj and Mr J Bennicks in the State of Tamil Nadu. The two were taken into custody as they had kept their mobile shop open during the lockdown hours. One of the lady police officials who were present in the police station, gave her statement to the magistrate stating she witnessed blood on the lathis and table, and the torture the two men faced in the custody. This brutality shows that even the safety providers can turn into killers. Murders committed by the Khaki, may it be in the form of custodial killings or encounters are nothing but a stunt of violence. Torture against prisoners in the custody is something very commonly known to the people of our nation, but is this torture necessary? Is this torture allowed under the provisions of the Indian legal system? Is this the ideology of punishment in India now?

One of the most celebrated encounters arose due to the unfortunate rape case of the city of Hyderabad. This encounter was somehow praised by the public in large, the 4th pillar of the constitution, i.e. the media also praised such extra judicial killings, the media in its reports after the extra judicial execution was conducted made the Hyderabad police a symbol of heroism and the people accepted such act of execution as justice for the veterinary doctor who was raped and murdered and burnt. The four accused namely- Mohammad Arif, Jollu Shiva, Jollu Naveen Kumar and Chintakunta Chenna Keshavulu were taken to the spot to recreate the crime scene where two of the accused snatched guns from the police officer and attempted to flee, for which, in order of self-defence the police shot down the accused. While some leaders after the encounter made their standings transparent, like MP Jaya Bachchan, who supports lynching of rapists said the encounter of the 4 accused were long due while there were other leaders like Annie Raja (General Secretary of National Federation of Indian Women) who stated that this encounter was an attempt to divert attention from the issue. A high level inquiry in the extra judicial execution matter was needed, there were leaders like Rekha Sharma, the chief of National Commission for Women, who said she was happy that the perpetrators were dead but, she believed that justice should have been done through proper legal channels.

Why public accepted such extra judicial killings was the aftermath of delayed justice in the 2012 Nirbhaya rape case. The brutal rape case in Delhi in the year 2012, on December 16 took the nation with shock and there was a sense of attachment that every person could relate to Nirbhaya, every person wanted justice for Nirbhaya every person wanted it as soon as judicially possible. The 4 rapists were hanged after 7 years of commission of this inhuman offence. So, when the Hyderabad rape case took place, the public wanted justice as soon as possible, protests to hang the rapists were soon seen on the roads, the protesters were seen violent, everyone was hoping for speedy justice but the accused were extra judicially killed or executed by the officers who were allegedly acting in self-defence, according to the people of this nation, justice was served but the accused never went to court for trial. This encounter created a question in the minds of many; one of the questions that arose was the existence of separation of powers, if the police officials could deliver justice through mere confession and without the involvement of judicial minds or evaluation of evidence, are the police and judicial system governed under same set of principles and rules. The answer to this is No, Police investigates into a matter, accommodates facts and witnesses and provides a detailed report to the court basing on its investigation known as a Charge Sheet, whereas the court inquires, analyses, keeping the benefit of public in large, the benefit of victim, the condition of the accused and most importantly giving law, the utmost importance while giving a judgement or reaching to a conclusion.

In the case of Brajendra Kumar Gupta vs. State of UP, 2016, the CBI after its investigation into the matter of such encounter submitted the Charge Sheet before the designated court. According to the enquiry report of CBI, Lucknow dated 24.12.2012, there was no sign of firing from the side of victim and the report stated the encounter to be a case of fake encounter.

In the case of Nareshbhai Vs State, 2008, there was a report submitted by the Investigating Agency of Gujarat which stated that the death of Sohrabuddin and subsequent death of Kasurbi, wife of Sohrabuddin was a result of fake encounter carried by the then Officers of the ATS, State of Gujarat and Senior IPS Officers of State of Gujarat and State of Rajasthan.

Section 97 of The Indian Penal Code enables use of force in self-defence only to protect one’s body and that of others from the actions of assaulting criminals or offenders, whose actions reasonably cause the apprehension of death or grievous hurt. In such circumstances, the action taken by the police is fully protected. Section 46 of The Code of Criminal Procedure enables police to use force resulting in the killing of an accused at the time of arrest, if the offence allegedly committed by the accused is punishable with death or life sentence.

These provisions have been misused by the police officials in past and continues to act as a shield. The 2014 Supreme Court guidelines suggested that an enquiry must be conducted into the matters of encounter by an outside agency to maintain free and fair investigation into these matters. The encounter of Vikas Dubey has been in highlight because of the circumstances, where in the media persons were stopped at Kanpur Sachendi few hours before the encounter took place; their vehicles were stopped to pass through, without providing them with any reason. There were a huge number of police officers present in each check post through which the vehicle which was used for transporting Vikas crossed. After his arrest took place there were channels and leaders stating that Vikas will reveal the dirty faces behind politics. The encounter of Vikas was done by the officials to protect them, while Vikas snatched a gun and was trying to escape after the car toppled. Now the question is whether this was an act of self-defence or should this be honoured as a celebrated murder of a Gangster? The involvement of authorities should be revealed so that justice is served judicially.

Author(s) Name: Adyasha Mishra (Soa National Institute of Law)

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