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[1]. 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![2].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[3] 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 [4] 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.
--
SOURCES:
[1] AP Govt. pays Rs 3 lakh to Mohd Shafi killed in fake encounter in
2003, 22 February 2009, by Mumtaz Alam Falahi.
[2] Andhra Pradesh Civil Liberties v. State Of A.P., 2007 (5) ALT 639.
[3] Id.
[4] (2014)10 SCC 635.
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