Encounter killings by the police

Introduction

Encounter killings by the Police are disconcertingly on the increase now-a-days. Such killings most of which are alleged to be “fake encounters”, however, evoke rapturous joy and exhilaration among the general public and also in the print, electronic and social media. Paying rich encomiums to the trigger-happy Police personnel, opinions are even aired that rapists and hard core marauders should be exterminated through lynching in public. The main reason for this rejoice over Police excesses is attributed to the snail pace and meandering judicial system which according to some is moribund. My endeavor in this article is to examine which of the two competing views merits approval on a forensic evaluation with reference to the statutory provisions and the case law governing the matter. This article is not meant for the gallery or the legally challenged but is for the legal fraternity and those who are genuinely interested in the forensic nuances pertaining to the topic.

The justification given in favor of encounter killings

The usual defense pressed into service by the Policemen to justify encounter killings is that the act of killing had to be resorted to in order to save themselves from the deadly attack made by the victims. Contrary to the popular misconception that “encounter killing” is a defense available only to the Police personnel, it is pertinent to bear in mind that encounter killing is a defense available to all persons including the Police. What is projected by the encounter killers is the “right of private defense” available to them when confronted with situations of grave danger to their life as would justify the exercise of this right of private defense. The law relating to the right of private defense is contained in Sections 96 to 106 of the Indian Penal Code, 1860 (“IPC” for short).

The substance of the right of private defense

As can be seen from the above provisions, the right of private defense is available both in respect of the “body” and in respect of “property”. The first clause of Section 97 IPC provides for the right of private defense of the body against any offence affecting human body as contained in Chapter XVI of IPC. The second clause of Section 97 IPC provides for the right of private defense of property against acts such as theft, robbery, mischief or criminal trespass or attempts to commit any of those offences which are included in Chapter XVII of IPC. While Section 96 IPC declares that anything done in exercise of the right of private defense is not an offence, Section 99 IPC contains a caution that the right of private defense is not available for inflicting more harm than is necessary for the defense. Section 100 IPC enumerates the various situations under which a person will be justified in committing the extreme step of causing “death” in exercise of his right of private defense of the body. Similarly, Section 103 IPC enumerates the situations under which a person may do the extreme step of causing “death” in exercise of the right of private defense of property. In the absence of any of the situations contemplated by Section 100 IPC, the right of private defense of the body is not available to the extent of causing death as cautioned by Section 101 IPC. Similarly, Section 104 IPC cautions that in the absence of any of the situations envisaged by Section 103 IPC, the person does not have the authority to cause the “death” of the aggressor in exercise of his right of private defense of property. The mechanics of the above provisions read along with Exception 2 to Section 300 IPC will be as follows:-

  1. If the act of causing death is committed under any of the situations falling under either Section 100 or under Section 103 IPC, the act of causing death is not an offence in view of Section 96 IPC. The offender in such a case whether it be the Police or a private person is not guilty of any offence and is fully protected.
  2. In the absence of any of the situations enumerated under Section 100 or Section 103, if the offender, instead of obeying Sections 101 or 104 IPC, exceeds the power given to him and causes death with premeditation and not without any intention of doing more harm than is necessary for such defense, he will be guilty of “murder” falling under Section 300 and punishable under Section 302 IPC.
  3. In the absence of any of the situations enumerated under Section 100 or Section 103, if the offender, instead of obeying Sections 101 or 104 IPC, exceeds the power given to him and causes death but without premeditation and without any intention of doing more harm than is necessary for such defense, his case will fall under  Exception 2 to Section 300 IPC and he would be guilty of “culpable homicide” not amounting to murder falling under Section 299 IPC and punishable under Section 304 IPC.
  4. When once the defense of encounter killing put forward by by the Police officer cannot be legally supported, it becomes a “fake encounter” which is nothing short of “murder” punishable under law.
Thus, from the stage of “no offence”, his act of causing death may “escalate into murder” or may get reduced to “culpable homicide” depending on the presence or absence of the above ingredients. In encounter killings by the Police, the act of causing death would be justified only if the case falls either under Section 100 or under Section 103 IPC. Even in cases of justifiable killings, can the killer Police officer be allowed to justify his act and go scot free without a trial ? If yes, then it will be a case where the Police officer would be the “complainant”, the “investigator”, the “prosecutor”, the “Judge” and the “executioner” all rolled into one. Those who garland the Police officers who indulge in encounter killings should realize that in those cases where the Courts eventually acquit private persons by holding that they were legitimately exercising their right of private defense, the fact remains that they were unnecessarily charge sheeted by the Police. This indicates that even in cases where the Police are convinced that the alleged act was committed in lawful exercise of the right of private defense, the Police are not inclined to give the benefit of the right of private defense to such persons and close the case but they leave it to the Courts to extend the benefit of private defense to those persons. The same is the position with regard to any other exonerating defense as well and the Police fail safe by dragging the unfortunate persons to the avoidable ordeal of a trial before Court. But when it comes to the so called “encounter killings” they want to avoid the Court and reap the credit of exterminating the “alleged culprit”.

The defense of grave and sudden provocation

Close to the heels of the above right of private defense is the defense of “grave and sudden provocation” falling under Exception 1 to Section 300 IPC. Unlike in the case of an act constituting “private defense” which is excused by Section 96 IPC, the defense of “grave and sudden provocation” does not exonerate the offender from criminal liability. The gravity of an act which otherwise would have amounted to murder under Section 300 IPC, is lessened in view of the conduct of the victim providing grave and sudden provocation of such a degree as to deprive the offender of his self control thereby reducing the offence of murder into culpable homicide by virtue of Exception 1 to Section 300 IPC. Even here, the offender should not be the provocateur and the provocation should not be one on account of the lawful exercise of his duties by a public servant or on account of the lawful exercise of the right of private defense by the victim. 

The above defenses are available to the victim of aggression provided those extenuating circumstances take place in the course of the same occurrence. To put it differently, when once the offence has been committed and the offender has decamped, there is no question of any outsider exercising any of the aforesaid defenses. Offences like rape or premeditated murders are usually done in secrecy. There will not ordinarily be any eye witness to such occurrences. Hence, after the occurrence is over and the disappearance of the culprits, if a Police officer were to hunt after and apprehend the alleged culprits and were to shoot them dead, he is, by all definitions, an aggressor who cannot plead the right of private defense. Moreover, in a case where there are no eye-witnesses or any CCTV footage or any other useful detail enabling tower location, how does the Police officer identify the alleged culprits ? Has he got any sixth sense to identify a rapist ? Article 21 of the Constitution of India shoots down his conduct of killing the alleged culprits as an outrageous act opposed to the procedure established by law. He must be held to belong to that class of trigger-happy policemen who indulge in retributive justice even without being sure as to who the culprit is.

Judicial perspective of a police officer

It may be useful in this context to take stock of certain observations made by the Apex Court regarding the position of a Police officer both at the entry stage and thereafter:

“The Police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the Police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes posses a threat to the discipline of the Police force”. (vide para 35 of Commissioner of Police v. Mehar Singh (2013) 7 SCC 685).

“It is not the duty of the Police Officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the Police have to arrest the accused and put them up for trial. The Supreme Court has
repeatedly admonished trigger – happy Police personnel who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State – sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the Police, who are performing their duty, are attacked and killed. In such circumstances, while the Police have to do their legal duty of arresting the criminals, they have also to protect themselves. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution”. (vide para 42 of Om Prakash v. State of Jharkhand (2012) 12 SCC 72).

“The Police has not come out of its colonial image. Despite 6 decades of independence the Police is largely considered as a tool of harassment, oppression and surely not considered a friend of the public”. (vide para 5 of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273).

“This Court has in recent times come across far too many instances where the Police have acted not to uphold the law and protect the citizens but in aid of a private cause and to oppress the citizen. It is a
trend that bodes ill for the country and it must be promptly checked.” (vide para 10 of Inder Singh v. State of Punjab (1995) 3 SCC 702).

No doubt, at the same time, we should not ignore the functional constraints confronted by the investigating Police officers and the phenomenal apathy of the members of the public to co-operate with the Police. The thin strength of Police personnel in the Police stations and the multifarious duties assigned to them and the lack of scientific gadgets and training make their task more difficult. All these aspects for and against the vigilante killers can be counterpoised only in the course of a fair trial.

The relevancy and stages for deciding sanction to Prosecute police officers indulging in encounter Killings

The Apex Court had occasion to consider whether Police officers committing encounter killings enjoy the initial insulation by way of prosecution sanction and the stage at which the question of sanction is
to be considered. In Devinder Singh v. State of Punjab through CBI (2016) 12 SCC 87 = AIR 2016 SC 2090, after an exhaustive analysis of the case law on the point the Apex Court concluded as follows:-
.
The principles emerging from the aforesaid decisions are summarized hereunder:

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent S.197 CrPC has to be construed narrowly and in a restricted manner.

Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under S.197 CrPC. There cannot be a universal rule to
determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

III. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under S.197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of S.197 CrPC would apply.

IV. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The Court is not to be a sanctioning authority.

V. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before Appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.

VI. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

VII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.

IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.” 

What are the guidelines to be followed for police Encounter investigations ?

In People’s Union for Civil Liberties v. State of Maharashtra (2014) 10 SCC 635 = 2015 Cri.L.J. 610, the Apex Court noticing that notwithstanding the repeated admonitions by the Court there had been 99 Police encounters resulting in the death of 135 persons between the years 1995 and 1997 in Mumbai alone, issued guidelines to be followed in matters of investigation of such Police encounters.

The following are the guidelines issued by the Apex Court:-

(1) Whenever the police is in receipt of any intelligence or tip - off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal
details of the suspect or the location to which the party is headed. If such intelligence or tip - off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(2) If pursuant to the tip - off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the Court under S.157 of the Code without any delay. While
forwarding the report under S.157 of the Code, the procedure prescribed under S.158 of the Code shall be followed.

(3) 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). The team conducting inquiry investigation shall, at a minimum, seek:
  • To identify the victim; colour photographs of the victim should be taken;
  • To recover and preserve evidentiary material, including blood - stained earth, hair, fibers and threads, etc., related to the death; 
  • To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;
  • To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo / video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;
  • It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;
  • Post - mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be Incharge / Head of the District Hospital. Post - mortem shall be videographed and preserved;
  • Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.
  • The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

(4) A Magisterial inquiry under S.176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under S.190 of the Code.

(5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.

(6) The injured criminal / victim should be provided medical aid and his / her statement recorded by the Magistrate or Medical Officer with certificate of fitness.

(7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.

(8) After full investigation into the incident, the report should be sent to the competent Court under S.173 of the Code. The trial, pursuant to the charge - sheet submitted by the Investigating Officer, must be concluded expeditiously.

(9) In the event of death, the next of kin of the alleged criminal / victim must be informed at the earliest.

(10) Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports: 

(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths:
(a) Self defence in encounter.
(b) In the course of dispersal of unlawful assembly.
(c) In the course of affecting arrest.
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial Inquiry / Inquiry by Senior Officers:
  • disclosing, in particular, names and designation of police
  • officials, if found responsible for the death; and
  • whether use of force was justified and action taken was lawful.

(11) If on the conclusion of investigation the materials / evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.

(12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under S.357A of the Code must be applied.

(13) The Police Officer(s) concerned must surrender his / her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Art.20 of the Constitution.

(14) An intimation about the incident must also be sent to the Police Officer's family and should the family need services of a lawyer / counselling, same must be offered.

(15) No out - of - turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given recommended only when the gallantry of the concerned officers is established beyond doubt.

(16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

Conclusion

For an orderly and civilized society, a State-sponsored terrorism or mayhem in the form of “fake encounter” by the Police or other forces, certainly do not constitute a welcome desideratum and can never be a substitute for the eventual punishment through the curial process of fair trial after following the procedure established by law. Just as a hangman (executioner) who suo motu executes a death sentence (passed by a competent Court), without the requisite death warrant will be guilty of murder, a trigger-happy policeman who shoots to death a marauder or a rapist, without the sanction of law, will have to necessarily face an indictment for murder. His misadventure of speedy justice will certainly be short-lived since he, like any other citizen, is accountable to the rule of law which pervades any democratic polity. 



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