POLICE ENCOUNTER– LEGITIMATELY ILLEGAL !BY: YUVRAJ P. NARVANKARBSL, LLM (Gold Medallist)Bombay High CourtIntroduction-With...
Right to private defence is natural and inherent right of every human being also recognized by lawas -Indian Penal Code(re...
accused of an offence punishable with death or with imprisonment for life .”It is evident from the language of the section...
that , it is the responsibility of the police concerned to take adequate and appropriate steps to bookthe gangsters under ...
that personal feuds are settled in the facade of maintenance of law and order.6Unless warranted forand necessited for self...
persons and personal feuds and enmities being settled and other motives being satisfied by recourseto the use of force und...
citizens may render him liable to punishment but it cannot justify theviolation of his human rights except in the manner p...
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Police Encounter

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An account of police encounters claiming lives of innocent citizens under the garb of law.

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Police Encounter

  1. 1. POLICE ENCOUNTER– LEGITIMATELY ILLEGAL !BY: YUVRAJ P. NARVANKARBSL, LLM (Gold Medallist)Bombay High CourtIntroduction-With the political and economic developments, social complexities also began to developresulting in growing crime rate and various unforeseen situations. State with the aid of policemachinery and administrative organs invented various techniques to deal with hardened criminals .Similarly various laws were enacted to bring the real culprit before the court and vindicate justice .However in view of modern developments in ammunition technology and Modus Operandi ofthe hardened criminals , it became Herculean task for the police to catch hold of criminals and bringthem before the court , resulting in scotting free the criminals and thereby diminishing the deterrentvalue of penal laws . To deal with such contingencies, police force began to resort retributivemeasures thereby giving rise to incidents like ‘Encounters’, wherein alleged criminals who resistedtheir arrest with means of firearms or who tried to evade prospective arrest by fleeing away, wereshot at by police resulting in death or serious injuries to the criminals . Primarily Encounters weremeans devised to deal with complex situations and were resorted to rarely. However frequent andrampant use of encounter by police created grave doubts regarding true intention and purposebehind encounter thereby challenging the very legality of encounters. Though police force was firmin its stand and supported encounters, various human rights activists, social welfare institutions andrelatives of deceased strongly opposed the encounters, alleging encounters as against fundamentalsof human rights and constitutional right to life of the person under article 21 . This paper seeks topresent , in brief, the judicial and legal approach towards burning issue of legality of encounter .I. Relevant legal provisions -It is pertinent to note that there is no provision in Indian law directly authorizing encounterof criminals , howsoever grievous crime he is charged with but there are certain enabling provisions, which may be construed to vest police with certain powers to deal with criminals .In almost all cases where encounter is done, it is done for the private defence of policeofficer ,trying to effect the arrest of the criminal where criminal opens fire or tries to evade thearrest .1
  2. 2. Right to private defence is natural and inherent right of every human being also recognized by lawas -Indian Penal Code(referred to as IPC) Section 96 provides that “nothing is an offence which isdone in the exercise of the right of private defence”Whereas IPC Section 100 enumerates the situations in which the right of private defence of thebody extends to causing death namely, first where an assault is such as may reasonably causeapprehension that death will otherwise be the consequence of such assault .Secondly such an assaultas may reasonably cause the apprehension that grievous hurt will otherwise be the consequence ofsuch assault. Hence in cases where there exists reasonable apprehension in mind of police officersthat there exists threat to life or limb, they are justified in exercising right of self defence which mayalso extend to causing death. Right to self defence commences as soon as reasonable apprehensionof danger to body arises from an attempt or threat to commit the offence though offence may nothave been committed.1Further it is well established that a person faced with eminent peril of life orlimb is not expected to weigh in golden scale the precise force required to repeal the danger and ifhe carries his defence further at the heat of moment law makes due allowance for it.2The burden ofproof in case of self defence is discharged by preponderance of probability and it need not beestablished beyond reasonable doubt.3Hence in almost all cases where life of police officer is atstake he is deemed to be vested with right of self defence.Similarly many times encounter is alleged to be amounting to murder, in such cases , exception 3of Section 300 of IPC enters the scene providing that culpable homicide is not murder if theoffender , being public servant or aiding a public servant acting for the advancement of publicjustice exceeds the power given to him by law and causes death by doing an act which he, in goodfaith , believes to be lawful and necessary for the discharge of his duty as such public servant andwithout ill-will towards the person whose death is caused . The section is also supported by section160 of the Bombay Police Act 1951, read with Bombay Police Manual, which provides that nopublic servant shall be liable to any penalty for giving effect in good faith to any order or directionissued with apparent authority by the state government. The sanction for encounter is partiallyexpressed also in other statutes as follows-Criminal Procedure Code Section “46(1)...(2)If such person forcibly resists the endeavour to arrest him , or attempts toevade the arrest such police officer or other person may use all means necessary to effect the arrest .(3)Nothing in this section gives a right to cause a death of a person who is not1 Rama Kamat v. State 1978 Cr.L.J. 1843; Dev Narayan .v. Sate of U.P. (1973)1 SCC 3472 Mohd. Ramzani v. Emperor AIR 1933 Lah 1673 Periaswami v. State of T.N. (1996)6 SCC 457; Savita Kumari v. UOI 1993 Cr.L.J. 15902
  3. 3. accused of an offence punishable with death or with imprisonment for life .”It is evident from the language of the section that law permits to use all means necessary to effectarrest of the person however imposes an inherent limitations on this right , with respect to minoroffences not punishable with death or life imprisonment .If widely construed , the section is capableof giving police the powers which can be arbitrarily used or misused by the police . It is left to thediscretion of the police officer to decide as to which means are necessary to effect the arrest of theperson , which in case can include use of firearms.Bombay Police Manual Rule 189-“(1).....if therefore an arrest can not otherwise be effected the use of firearms toeffect the arrest is justifiable and the police officer is protected from the consequence and even fromthe liability for the death of a person fired on under such circumstances , in case if the person to bearrested is accused of an offence punishable with death or transportation of life.(2)....nothing deprives the police officer of his right of self defence if the resistanceto arrest is such as would justified him in causing death in defence of his own person under section100 of IPC .This right of self defence includes the use of firearms to overcome the resistance , ifnecessary , even with the fatal effect. They can not, if desist on mere shoe of resistance , they arebound to redouble the efforts , even at the risk of their lives , if opposed and the law protects fromany consequences which the resistance entails .(3)When the offence is punishable with death or transportation of life and there is noother means of effecting the arrest of the suspected person , the resort to firearms is justifiable inspite of any danger there may be of thereby wounding him and causing death .”Thus law not only justifies use of firearms in arresting the person guilty of an offence punishablewith death or life imprisonment but also cast it as a duty.Similarly section 28 of the Bombay Police Act 1951 , provides that a police officer will bealways deemed to be on duty . So police officer is always vested with all the powers conferred bylaw , even though duty period is over .Thus it can be seen from abovementioned discussion thatthough , not directly or specifically permitted , encounter can be supported under variousenactments.II. Pro-encounter judicial attitude-Though judicial opinion upon this issue differs , it would be interesting to refer some judgements ofdifferent high courts and supreme court, commenting upon legitimacy of encounters .In the case Vandana Vikas Waghmare v. State of Maharashtra 4Honble Bombay High Court held4 1998 Cr.L.J.42953
  4. 4. that , it is the responsibility of the police concerned to take adequate and appropriate steps to bookthe gangsters under the law. The duty of police organization has become onerous and accountableand one should refrain from demoralizing the police force and to dissuade them from doing theirduty would be against public interest.Similarly , in PUCL v. UOI5Honble Supreme Court categorically said that,“ under certain conditions, certain additional and unusual powers haveto be given to the police to deal with terrorism. It may be necessary tofight terrorism with a strong hand which may involve vesting of goodamount of discretion in the police officers or other paramilitary forcesengaged in fighting them. If the version of the police with respect to theincident in question were true there could have been no question of anyinterference by Court. Nobody can say that the police should wait tillthey are shot at. It is for the force on the spot to decide when to act, howto act and where to act. It is not for the Court to say how the criminalsshould be fought. One cannot be blind to the fact that even after fiftyyears of our Indian independence, our territorial integrity is not fullysecure. There are several types of separatist and terrorist activities inseveral parts of the country. They have to be subdued. Whether theyshould be fought politically or be death with by force is a matter ofpolicy for the government to determine. The Courts may not be theappropriate forum to determine those questions. All this is beyonddispute.”Thus it can fairly be seen that encounter is not only indirectly sanctioned by laws but alsoconsidered necessary by courts to check antisocial elements in the society.III. Some harsh realities -Though, as seen above , encounter as a weapon is necessary and can be resorted to in certainsituations , its rampant use that too with malafide intention raises serious doubts as to itslegitimacy. Many shocking instances , where encounters were done by police negligently causingdeath of innocent citizens or at the instance of rival criminals or for vindicating their personalgrievances or just to close investigation of any offence, were brought to the notice of court andthereby encounter specialists were declared as murderers. Supreme court has also accepted fact5 AIR 1997 SC 12034
  5. 5. that personal feuds are settled in the facade of maintenance of law and order.6Unless warranted forand necessited for self defence, use of encounter by police amounts to legal murder. In such casesplea of self defence will also not stand good. Because the plea of private defence will apply onlywhen the death caused is without premeditation7and without any intention of doing more harm thannecessary.8In the case where encounter is premeditated and intentional , it will squarely fall withinambits of section 300 of IPC.9IV. Violation of right to life -Article 21 of the constitution guarantees right to life and personal liberty10. Right to life isone of the basic human right and not even the state has the authority to violate this right.11Thestate is obliged to protect this life of every person12and can not shake off its hands on the groundthat it is a case of exception where a policeman under grave provocation acted violently causingdeath of the person.13Therefore state is obliged to protect the life of people against any sort ofaggression and force used by any person including the police officers themselves. As BombayPolice Manuel rule 188 provides that arrest should be effected without unnecessary violence andpublicity. In the case of PUCL v. UOI 14Honble Supreme Court held the conduct of police of takingaway life of two culprits and killing them, violative of article 21. Similarly it has been held byHonble High Court in Kamini Talukdar v. State of Assam 15that police must make bonafide attemptto apprehend or it will be cold blooded murder and it would amount to negligence in duties , furthercourt also noted that even though deceased is culprit he can not be eliminated by police personnel ashe has all rights to live under Article 21 including right to live with dignity. Further in PUCL v.Union of India. 16Where there was the allegation of cold blooded killing of 2 persons by stagingfake encounter by police. The District and Sessions Judge was directed to record evidence ofrelevant witnesses and submit a report to Supreme Court within six months in order to decide thequestion of compensation. Supreme Court has also recognized fact that alone in the year 1981among the persons killed by the police during such encounters there were as many as 299 innocent6 Chaitanya v. State of U.P. AIR 1989 SC 14527 Baljit Singh v. State of U.P. (1976)4 SC 14528 Keshoram Bora v. State of Assam (1978)2 SCC 4079 IPC section 300 defines murder as “Except in cases hereinafter excepted , culpable homicide is murder , if the act bywhich death is caused is done with the intention of causing death; or.........”10 Constitution Article 21 - “No person shall be deprived of his life and persoal liberty except according to procedureestablished by law”11 State of A.P. v. Challa Ramkrishna Reddy AIR 2000 SC 208312 Nilabati Behara v. State of Orissa AIR 1993 SC 196013 Jagat Dhar Sharma v. State of Assam AIR 2003 Gau 10114 AIR 1997 SC 120315 1997 Cri.L.J. 213816 1995 Supp (2) SCC 5725
  6. 6. persons and personal feuds and enmities being settled and other motives being satisfied by recourseto the use of force under the guise of maintaining law and order.17Similarly in the case of PUCL v. UOI 18Court interestingly found that in all these cases where thepolice have alleged that the concerned persons have died in encounters, the alleged criminals werearmed with sophisticated weapons but no injury had been caused to any of the police officers whohad participated in the operation. Invariably the injuries caused to the deceased are on the vital partsof the body and he is declared dead before admission to the hospital. In no case the firing was madeby the police officer with an intention to disable the concerned criminal. At least prima facie courtfound substance in the allegation of the petitioner that there is a general pattern in these FIRs.Courtalso remarked that ,“ We wish make it clear that this Court is not oblivious to the difficultiesfaced by the police in tackling with organised crime which has taken rootin the society. We are also conscious of the fact that the police have toperform a difficult and delicate task, particularly in view of thedeteriorating law and order situation and increasing number ofunderworld and armed gangs and criminals. It was argued that if theCourt lays too much emphasis on their fundamental rights and humanrights, such criminals may go scot-free without exposing any element ofcriminality and the crime would go unpunished. Attention of court wasdrawn to incidents of murders of some important and prominent personsin the city in recent times. But court said that all this cannot justifypolice resorting to extra judicial methods. The action of the State, mustbe "right, just and fair". Such a crime-suspect must be interrogatedindeed subjected to sustained and scientific interrogation - determined inaccordance with the provisions of law. He cannot, however, be eliminatedwith a view to derive knowledge about his accomplices, weapons etc.State terrorism is no answer to combat terrorism. State terrorism wouldonly provide legitimacy to "terrorism". That would be bad for the State,the community and above all for the rule of law. The State must,therefore, ensure that various agencies deployed by it for combatingterrorism act within the bounds of law and not become law untothemselves. That the terrorist has violated human rights of innocent17 Chaitnya Kalbhag v. State of U.P. AIR 1989 SC 108718 1998 Cri.L.J. 21386
  7. 7. citizens may render him liable to punishment but it cannot justify theviolation of his human rights except in the manner permitted by law.19National Human Rights Commission has laid down certain guidelines to be followed during andafter encounter whereby, inter alia, the police officer who carried out the encounter must submitreport of the encounter in prescribed form to the State Human Rights Commission and inquiry ,ifnecessary, can also be conducted . In these guidelines Justice A.S.Anand, the former Chief Justiceof India of India , rightly stated that “The police does not have a right to take away the life ofperson. If by his act , he takes away life of a person he commits the offence of culpable homicidenot amounting to murder, unless such killing is justified under law.”V. Conclusion -Thus, from above discussion it becomes clear that police force has right to injure or kill thecriminal , for the sole and only purpose of self defence or where it is imminently necessary for themaintenance of peace and order. However by no means police officer can be given a right to causeinjury or death of the person, to settle personal feuds or with any ulterior motive ,which could beapparent from facts of each case. It is the solemn obligation of the state to encourage police forceand deter antisocial elements but at the same time also to punish the murderers in the veil of police.Similarly there is imminent need to enact a specific legislation to deal with the issue of encounter,laying down directions to be followed during and after encounter, whereby instances of killinginnocent human beings in the veil of encounters can be avoided and faith in police force can bereinstated.Author of this can be reached at:Cell: 91-98227867631yuvraj.narvankar@yahoo.co.in19 Supra note187

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