“Encounter” or “retaliatory killings” or “extra-judicial executions” by the Police are on the increase now-a-days. The present article will not examine the real-life incidents of encounter but only restrict itself to the bring to light the law relating to encounter by police officer.
Legal frameworks that are currently present in India
there is no provision in the Indian law that directly authorizes the encounters of criminals, however, there are certain enabling provisions which may be interpreted differently to vest police officers with certain powers to deal with criminals.
1) In almost all cases where an encounter have taken place, it is done for self-defense of the police officer.
2) Under Section-96 of the Indian Penal Code (IPC), every human being has the right to private defense which is a natural and an inherent right.
3) Section-46 of the Code of Criminal Procedure (CrPC) lays down that police can use reasonable force. The wording of section 46(2) & (3) is stated below:
i. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
ii. Nothing in this 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.
§ In March 1997, Justice M. N. Venkatachaliah (the then chairperson of the NHRC), in the backdrop of increased complaints from the general public and non-governmental organisations related to instances of fake encounters by the police underlined that the police have not been conferred with any right to take away someone’s life, except under two circumstances:
o If the death is caused in the exercise of the right to private defence,
o Section-46 of the CrPC that authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.
§ In the light of this notion, the NHRC asked all states and Union Territories to ensure that police follows the following set of guidelines in cases of encounter killings:
o Register: When the in-charge of a Police Station receives information about the deaths in an encounter, he shall record that information in the appropriate register.
o Investigation: Received information shall be regarded as sufficient to suspect and immediate steps must be undertaken to investigate the relevant facts and circumstances leading to the death so as to ascertain, if any, offence was committed and by whom.
o Compensation: It can be granted to the dependents of the deceased when the police officers are prosecuted on the basis of the results of the investigation.
o Independent Agency: Whenever the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases for investigation are referred to some other independent investigation agency, such as State CID.
§ In 2010, NHRC extended these guidelines by including:
o Registering FIR: When a complaint is made against police alleging committing of a criminal act recognized as cognizable case of culpable homicide, an FIR must be registered under appropriate sections of the IPC.
o Magisterial Probe: A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible (preferably within three months).
o Reporting to Commission: All cases of deaths in police action in the states shall be preliminary reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death.
o A second report must be sent in all cases to the Commission within three months providing information like post mortem report, findings of the magisterial enquiry/enquiry by senior officers, etc.
Supreme Court Guidelines
In the PUCL vs State of Maharashtra case (2014), the SC was dealing with writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997.
Following were the guidelines in the case:
- Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of a 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.
- 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 Section 157 of the Code without any delay. While forwarding the report under Section 157 of the CrPC, the procedure prescribed under Section 158 of the Code shall be followed.
- 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, fibres 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 In-charge/Head of the District Hospital. Post-mortem shall be video-graphed 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.
In light of the above discussion and in view of the recent events, it is a need of hour that the Parliament should enact legislation to tackle the menace of encounter by police