Fake encounter is defined as the extrajudicial killing or extrajudicial execution of those people in custody by the police or armed forces usually justified in terms of self –defense which is generally occurred during shoot outs. Fake encounter or Encounter Killing is not a new term and has been used in countries like India, Pakistan, and SriLanka since late 20th century. The Police are responsible for performing different functions that includes conduct of investigation of crimes, the prevention of crime, maintenance of law and order etc. There are a large number of Supreme Court and High Court rulings relating to the various aspects of Police functioning which has great importance for the legal professionals, rank and file of the Police Force.
According to the National Human Rights Commission (NHRC) of India, there were 440 cases of alleged fake encounters during the period between 2002–2008. The NHRC annual report 2017-2018 stated that there were about 164 deaths following from police encounters and that they had disposed 176 cases. Assam leads with 57 of the disposed cases, while Uttar Pradesh came second with 18 cases. Among the 755 pending cases, Assam topped the list with 202 cases and Chhattisgarh following with 175 cases. The NHRC claimed that there have been 712 instances of police encounters in the India between 2000 and 2007, with Uttar Pradesh topping the list at 324, and Gujarat figuring nearly at the bottom with 17 which was published in 2011 manual for human rights for police officers .
HISTORY OF ALLEGEDLY FAKE ENCOUNTERS AND EXTRA-JUDICIAL KILLINGS
Sadiq Jamal, 2003
In the year 2003, Sadiq Jamal who was claimed to have information that he was planning an attack on Narendra Modi and other top BJP leaders shot dead by the Gujarat Police. According to the investigation done by the CBI, Jamal was not only killed by the police in a fake encounter but the Intelligence Bureau also played a role in it. According to the CBI, Jamal failed to match the profile of reports of a plan to kill Modi and the other BJP leaders, his past criminal record only included an argument in 1996 and an arrest for gambling in the year 2002. IB officials and many other police inspectors were questioned and later accused for the case of his 'encounter' In the year 2017, Jamal’s father had filed a petition at the Gujarat High Court seeking a compensation of Rs 50 lakh from the state government.
Sohrabuddin Sheikh and Tulsiram Prajapti, 2006
According to the CBI, Sohrabuddin Sheikh was a wanted criminal for extorting money from the marble traders in Rajasthan and Gujarat. The Gujarat police however claimed that he was a lashkar-e-taiba operative. During November 2006, Sohrabuddin and his wife kausar bi were travelling from Hyderabad to Maharashtra when the Gujarat police Anti terror squad caught and took them to a farmhouse that was located in the outskirts of Ahmedabad. It was reported that three days later, the ATS chief at that time D.G Vanzara had taken sheikh away and killed him, the chief claimed that he was a terrorist who planned on attacking NarendraModi. Tulsiram Prajapati, a known associate of Sohrabuddin sheikh was allegedly killed in a fake encounter. According to the CBI, Prajapati was with sheikh and his wife when the Gujarat police caught them. Prajapati was said to be arrested in Rajasthan and was later killed. The Supreme Court held that the CBI needed to take up the case and they concluded that Amit shah who was the Gujarat home minister at that time was the prime accused for the death of Prajapati. According to the given charge sheet, former DGP P.C. Pande and additional DGP Geetha Johri who were the eyewitnesses for the killing of sheikh and his wife misused their power and position to eliminate Prajapati.
Bhopal jail encounter, 2016
During October 2016, eight people that were associated with the student's Islamic Movement of India (SIMI) allegedly escaped from the Bhopal Central Jail and were later shot dead by the state police. The report stated that the deceased were to surrender, but instead began firing at the police and the public. Thereby, the police had to open fire even after that the deceased showed no intention to surrender, and had sustained injuries which led to death on the spot. At the time, many videos surfaced indicating that the encounter was staged. Many questions had remained unanswered- such as how the escapees had access to weapons, how they were able to escape prison, who provided them basic necessities like food and clothes when they escaped. In June 2018, a one-man judicial commission headed by S.K. Pandey, the retired Madhya Pradesh High Court judge, gave the police a clean chit.
Alleged rapist/ murderers in Hyderabad, 2019
In December 2019, The Telengana police shot and killed four men who were accused for gang raping and burning a veterinarian doctor in Hyderabad to death. Calling the police action an "encounter", the police said that they had to open fire in self defence as the four men tried to escape and began attacking them with stones. The police had taken the accused to an underpass located on the Hyderabad - Bengaluru highway next to Chatanpally village to reconstruct the crime when the accused tried to escape, the police claimed.
Manipur extrajudicial killing 2010
In February 2020, four Manipal policemen, including an inspector had surrendered before the Imphal West chief judicial magistrate regarding the alleged fake encounter of irengbam ratankumar that occurred on September 1, 2010.The case is one of more than 1,500 extrajudicial executions carried out by the Manipur police and security forces. The Special Investigation Team (SIT) of the CBI, which was investigating the case, submitted a charge sheet against the police officers in May 2019. This action was made after former CBI director Alok Kumar Verma was condemned by the Supreme Court in 2018 for failing to arrest the alleged extrajudicial killings in Manipur.
THE JUSTIFICATION IN FAVOR OF ENCOUNTER KILLINGS
The police officers justify encounter killing as self dense (Chapter IV: general exceptions, section 96-106 of IPC) stating that the act of killing had to be resorted in order to save themselves from the attack that could possibly be caused by victims. The subsequent sections deals with Chapter IV: general exceptions regarding self defense:-
Section 96 of IPC states things done in private defense. Nothing is an offence which is done in the exercise of the right of private defence.
Section 97 of IPC states right of private defence of the body and of property. Every person has a right, subject to the restrictions contained in section 99, to defend -His own body, and the body of any other person, against any offence affecting the human body.
Section 98 of IPC states right of private defence against the act of a person of unsound mind, etc.—When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence
Section 99 of IPC states acts against which there is no right of private defense. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
Section 100 of IPC states when the right of private defence of the body extends to causing death. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; etc.
Section 101 of IPC states when such right extends to causing any harm other than death. If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
Section 102 of IPC states Commencement and continuance of the right of private defence of the body. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
Section 103 of IPC states when the right of private defence of property extends to causing death. The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-
House-breaking by night;
Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
Section 104 of IPC states when such right extends to causing any harm other than death.—If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Section 105 of IPC states commencement and continuance of the right of private defence of property. The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Section 106 of IPC states right of private defence against deadly assault when there is risk of harm to innocent person. If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
LEADING CASES ON TORTURE & CUSTODIAL DEATH
D.K. Basu Vs. State of West Bengal; (1997) 1 SCC 416
It was stated in this case that the right guaranteed under Article 21 cannot be denied to detenus, convicts, under trials and other prisoners in custody. . Any form of third –degree methods or torture used against accused during interrogation and investigation in order to extract information would be neither right nor fair and it shall be against Article 21. Therefore, in order to meet this challenge there is a need to develop scientific methods of investigation.
Prakash Singh and Ors. Vs. Union of India and Ors; (2006) 8 SCC 1
In this case the court held that there shall be Police Complaints Authority at the district level headed by a retired District Judge to inquire the complaints against police officers of and up to the rank of Deputy Superintendent of Police (DSP) and at the State level headed by a retired Judge of the High Court/Supreme Court to look into complaints against officers of the rank of Superintendent of Police and above. The State-level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which include incidents involving grievous heart, death or rape in police custody. The district-level Complaints Authority apart from the above mentioned cases would also inquire into allegations of any incident involving serious abuse of authority, land/house grabbing and extortion.
The suggestions of the Complaints Authority shall be binding on the authority concerned both at the district as well as State-levels for any criminal or departmental action against a negligent police officer.
This direction was given in response to a huge number of complaints against the police, and the lack of accountability which has led to serious misconduct by members of the police force. However, six years after the Supreme Court’s directive only six states and four union territories have functioning PCAs.
Shakila Abdul Gafar Khan vs. Vasant Raaghunath Dhoble; (2003) 7 SCC 749
In this case the 113th Report by the law commission recommended amendments to the Indian Evidence Act, 1872 in order to provide that the Court may conclude that the injury was caused by the Police Officer having the custody of the person during the period if there was evidence that the injury was caused during that period when the person was in the police custody unless the Police Officer proves to the contrary .
It was also stated that the Courts are also required to have a change in their attitude, approach, outlook and appreciation specifically in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach.
State of Uttar Pradesh Vs. Ram Sagar Yadav & Ors.; (1985) 1SCC 552
The court held that the Government needs to amend the law appropriately so that policemen who commit enormity on persons who are in their custody are not allowed to escape by reason of absence of evidence. The court also mentioned that Law in such cases may be reexamined by the Legislature so that hand maids of law and order do not use their authority and opportunities for oppressing the innocent citizens who lookout to them for protection.
Fake Encounters affects administration of the criminal justice system and credibility of the rule of law .While Section 96 of IPC states that act done in exercise of the right of private defense is not an offence; Section 99 of IPC contains a caution that the right of private defense is not available for inflicting more harm than necessary. The police are accountable for their demonstrations and they should not be defended for their wrongdoing under law .
–Faheema Rimili.F, Vidya Vikas Institute of Legal Studies, Mysore