The Indian Criminal Law provides the police with various powers and duties in the investigation of the crime. The powers were there but along with the duty to not misuse them but with power, the responsibility comes, and to arrest a person or catch an accused person, the police officers use their power. But sometimes the situation occurs where the accused is in such a dominant position that he cannot be arrested easily and, in that case, the police can use force to arrest him. It has been observed on some occasions that the accused were so powerful that even the police officers must be careful and if the situation arises the police can use force to save his life.
WHAT IS ENCOUNTER
Encounter is not defined in the Criminal Law rather it is used by the Law Commission which means to counter the police officer when it is such that death will be the result if he does not encounter it. So, the encounter will be carried out in fear of death, and to save his life encounter will be done. The encounter is the counter by the police officer to save his life and for the protection of his life, he used to defend himself and, in that case, the death of the accused was caused. The word encounter defined by Wikipedia as Encounter killing is a term used in India, Pakistan, Bangladesh and Sri Lanka since the late 20th century to describe extrajudicial killings by the police or the armed forces, supposedly in self-defence, when they encounter suspected gangsters or terrorists in a shootout situation. Sometimes policemen are also killed by criminals in encounters. According to the Times of India “As many as 655 cases relating to death in police encounter were registered across the country between 1st January 2017 and 31st January 2022 of which Chhattisgarh account for the highest followed by Uttar Pradesh.” To make it clear let’s analyse the provisions that allow police encounters.
PROVISIONS RELATING TO THE ENCOUNTER
The Criminal Law does not allow blanket order of encounter but in certain circumstances, it is allowed like for self-defence or for saving life etc. Under Sec. 96 of IPC Things done in private defence: – Nothing is an offence which is done in the exercise of the right of private defence. This section makes it clear that the things done in private defence do not constitute offence and encounters are such that are always done in fear of death which is private defence. The offence is there but since it is because of private defence then it would not amount to offence.
Under Sec. 46 CrPC Arrest how made is provided as follows:
- In making an arrest the police officer or other person making the same shall touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.
Provided that where a woman is to be arrested unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
- If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or another person may use all means necessary to effect the arrest.
- 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.
- Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Sec. 46(2) has given the police power to use force in case the accused resist & Sec. 46 (3) provides that if the offence is punishable with death or life imprisonment then death can be caused but it does not mean that death will be caused in every case rather it can only be caused in private defence. Apart from criminal law the Constitution also provides for the right to private defence. Also, the sections of the Indian Penal Code provided some more sections but whatever the section it is providing the act of encounter must be done in private defence. So, the encounter that is allowed under Indian Laws is not such that the police officer can use it as a matter of routine but in exceptional cases when the police officer himself has in such condition that the accused will kill him then he can use reasonable force to defend himself and therefore it is a sought of private defence that is allowed.
CASE LAWS RELATING TO ENCOUNTERS
It was held that the extrajudicial killings are not legal under our criminal justice administration system and equated it to state-sponsored terrorism. The accused person must be put on trial for which it puts a duty on the police not to kill the person but to arrest him. However, it attracts the question of fleeing suspects for which the non-vital parts of the body should be the main target when there has been no injury to any policemen.
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).
Supreme Court of India observed that in the facts and circumstances presented before it there was an imperative need of ensuring that the guardians of law and order do observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens.
THE NATIONAL HUMAN RIGHTS COMMISSION AND THEIR GUIDELINES
The National Human Rights Commission have from time to time issued various guidelines for the procedures adopted for the investigation of encounters. NHRC laid down the guidelines in 1997 that FIR shall be registered in case of encounter and the court laid down a 16-point procedure to be followed in the investigation of encounter deaths to prevent any abuse of power by the law enforcement agencies. However, in 2010, this guideline was extended by including Magisterial Inquiry under section 176 Cr. P.C in case of death within 3 months and mandatory reporting of all encounter deaths to the commission within 48 hours of happening. A second report within 3 months must also be sent to the commission under section 190 Cr. P.C which includes a post-mortem report, findings of magisterial inquiry etc.
India is being heavily criticized for not ratifying the United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) of 1987 despite being the World’s largest democracy. The main concern 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 state 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. To curb these growing trends, these killings need to be independently investigated free from police or political interference to fix culpability on the police officers and end the prevalent culture of impunity. Police reforms are also needed to sensitize them to function within four corners of the constitutional responsibility and the rule of law prevails above all. The Indian criminal system increasingly reflects the idea of-‘power’ rather than justice. Furthermore, the NHRC’s guidelines must be strictly adhered to and followed up by judicial authorities. In a broader perspective, there is a need for a complete overhaul of the criminal justice system to rebuild its lost credibility and fast-track procedure. And lastly, the media should avoid labelling extrajudicial killings as heroic acts as it shakes the faith of people in our criminal system.
The cases of encounters indicate that the crimes were not in control of state machinery and therefore to maintain the law and order the police authority need to use force to control them. It is not good for society and the country because taking any person’s life is not allowed in the Constitution but in certain circumstances, it is allowed under those exceptional circumstances it is allowed for safe defence but encounters if happening as a matter of routine is alarming for the state and society. In India, there were some circumstances where the encounters are much necessary as the case is of self-defence as well as to maintain law and order like in the Batla House Encounter Case where the operation resulted in the death of two terrorists but sometimes it is also used as a way for getting a promotion in ranks. Therefore, to ensure law and order the investigation into those encounters was mandatory and it is followed strictly in the country, therefore, judicial inquiry should be strictly allowed and there is a need for separate judicial authorities who can manage these cases.
Author(s) Name: Ayush Shukla (Pt. Ravishankar University Raipur (C.G))