Authored by: Pujita Makani
“‘We've got facts’, they say. But facts aren't everything; at least half the battle consists in how one makes use of them!”
― Fyodor Dostoyevsky, Crime and Punishment
― Fyodor Dostoyevsky, Crime and Punishment
The prevalence of encounter killings, (an extra judicial killing of an alleged criminal) has plagued the Indian justice system for many years now. What exactly are the justifications to these instances and how are these provisions manipulated by the Police? How has the law evolved to tackle this grave issue?
The police not only seem to have immense powers granted by Section. 41 of the CrPC- which lays down a wide range of instances in which the Police are authorised to arrest immediately- but also enjoy various immunities while exercising these very same powers. Encounter killings is the reason that shields the Police from being held responsible for the death of suspects or accused persons.
There are many justifications to these killings; I will however limit this discussion to two fairly frequented justifications made by Police: (1) Self Defence (2) Necessity under Section. 46 CrPC- when the person is accused of offences punishable for life imprisonment or death, attempts to escape.
Private Defence under Section. 100 of the IPC is the defence that is usually claimed by the Police when they are charged with Murder in order to reduce the charge to Culpable Homicide. It is interesting to note that most of the time, the Police never report such offences and instead of filing an FIR against the Police Officer, instead they register an FIR against the person who was killed under Section. 307 for Attempt to Murder!.Naturally the investigation fails and the report is closed as there are usually no eye witnesses and, most importantly, the person accused is dead. This is one of the many lacunae in the justice system.
Section 46 (3) of CrPC mandates that nothing in the 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. This section seems to shed light on the object of the offence instead of the perpetrator. The mere fact that the accused person is alleged to be guilty of offences that are punishable with death or life imprisonment provides a legal justification to his death even before establishing his guilt. What ever happened to ‘you are innocent until proven guilty’? If the legitimacy of an encounter killing is dependant on the guilt of the encountered, there is an immediate shift in the burden of proof. The police are required to only have an allegation regarding the crime to justify the encounter while the dead person has to prove innocence. Immediately eye brows are raised, as everyone knows, dead people don’t talk. The police bask in ultimate nirvana as an encounter killing eternally silences the victim and in essence causes any chance of a trial for this ‘alleged guilt’ to become redundant.
THE LEGAL POSITION
In order to tackle these issues the judicial courts have pronounced various judgements in order to draw out guidelines that must be followed in such situations.
In Andhra Pradesh Civil Liberties v. State Of A.P it was held that no crime can be registered under Section 307 of I.P.C., against a person killed in an encounter. And if there is no complaint filed against the Police the Magistrate must take cognizance of the death and initiate investigations under the powers vested in them under Section. 176 of the CrPC. Even if the report is closed the Magistrate has the authority to reopen investigation.
The apex court in People's Union for Civil Liberties vs State Of Maharashtra & Ors  laid out 16 procedural guidelines which closely direct investigations in matters of police encounter killings. They include a mandate on registering an FIR against the Police Officer, an independent investigation that is carried out by another police station or the CID, a mandate on Magisterial Inquiry under Section 176 of CrPC, inter alia.
It is quite clear that stringent and substantial reforms need to be made which limit the actions of the executive from acting independently. The repeated defences resulting from encounter killings need to be curbed and surely effective measures must be implemented in order to discourage the enforcers of the law from breaking the law.
 AP Govt. pays Rs 3 lakh to Mohd Shafi killed in fake encounter in 2003, 22 February 2009, by Mumtaz Alam Falahi.
 Andhra Pradesh Civil Liberties v. State Of A.P., 2007 (5) ALT 639.
 (2014)10 SCC 635.