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Mainstream, VOL LVIII No 1 New Delhi December 21, 2019 | ANNUAL NUMBER

Pre-and Post-Legalities of Police Encounter: Perspective of Hyderabad Incident

Saturday 21 December 2019


by Ahmed Raza

The recent encounter by the Hyderabad cops during the investigation process of rape and murder of a vet doctor tempted no of question-marks on the legalities of the encounter. The inhuman, cruel and ruthless offence could not be imagined in the society; unfortunately India’s southern city Hyderabad witnessed such hideous and horrible offence allegedly by a group of four young adults resulting in distress, anguish and grief in the county. The villainous incident traumatised the nation widely leading to insist for death penalty immediately voicing in favour of speedy trial through a fast-track court.

A few activists associated with women and child rights demonstrated their anger by demanding extra-procedural punishment like open hanging etc. unacceptable to any democratic nation. In a democratic set-up, the due process of law is mandated by the abiding rule of law to all leaving emotions, sentiment and values aside from the course of action. The reaction and counter-reactions on the ongoing discourse for and against the death penalty were moving around in TVs, media and social media. The debate halted down before attaining any conclusion as soon as the news of the encounter by Hyderabad cops as self defence broke out.

The encounter was manoeuvered in accordance with the legal provision stipulated in CrPC 100 authorising an officer in self-defence as the four accused attempted to escape during investigation at the crime-site throwing high object weapons, sharp stone and guns as claimed. The unplanned operations against the four accused are drawing too much welcome and felicitations in favour of the cops by the majority of citizens and netizens acknowledging it as speedy delivery of justice.

The killings of four accused in just ten days waiting has placed India on celebration and festive mood as cities are enjoying with full of colors and fireworks. Of course, the unplanned encounter acted as a pain-killer medicine for public suffering from pain that hurt mentally, emotionally and psychologically. But, the side- effect of the scary encounter forced others to demand for screening out encounter through legal and judicial scanner as referred to by the Supreme Court of India’s guidelines. Therefore, it is mandated for everyone to be comprehended with all aspects of the legalities and procedural faces associated with the encounter.

The term ‘encounter’ in legal terminology is renewed extra-judicial killings as it lacks in the judicial process and due process of law. In Indian context, an encounter always happens to be under the radar of the National Human Right Commission, human rights activists, media, and others on account of a few of them being declared fake encounter after a judicial inquiry. But, portraying any encounter always diminishes the moral and motivation of the officers who sacrifice their life in restoring peace and harmony in society. The legalities and pre and post script of an encounter may be understood with the help of constitutional provisions of Article 21 and Article 141 along with the Supreme Court’s guidelines, IPC and CrPC, Though this piece of paper did not justify any encounter, past or present, only glimpses about the legal legitimacy is supposed to be mandated carefully while encountering as self-defence. There is no law directly authorising anyone to encounter criminals or a threat, whomsoever, it is widely used by the police lingo as a confrontation between criminals, anti-nationals, and security forces.

In an encounter, the criminals are killed during an operation or searching process by the cops or security. There have been long lists of strict guidelines if an encounter was operated during the course of action. However, in some cases, it is preplanned in an extraordinary situation wherein legal and procedural formalities remain a pre-requisite condition.

Article 21 of the Constitution states that no person will be deprived of his life or personal liberty except in accordance with the procedure established by law. Article 21 initially outlines a benchmark preventing an individual or state from any sort of killing of a human being. The broader interpretations of the Article clearly restricts encounter prior to the state are required to put the person on trial in accordance with the provisions of the Criminal Procedure Code also known as ‘CrPC’.

In the trial, the accused must be informed of the charges against him and then given an opportunity to defend himself (through his counsel) and only then, if found guilty, can he be convicted and executed.

This provision acts as fundamental of due process of law in India, consuming ample period of time and resources.

However, on one side, it is an example of natural justice and on the other side, it is loaded over the mountain of criticisms of delayed process. In many circumstances, States like Punjab, Jammu & Kashmir (now Union Territory), Jharkhand, UP, Maharashtra etc. were compelled to act against terrorists, Naxalis, criminals as operation wherein a series of encounter took place. Though, they were highly justified of non compliance of an article due to security concern.

The Supreme Court of India, as custodian of the Constitution, strongly confines the exercise of encountering in the jurisdiction of the police by stipulating the detailed guidelines of 1993. A provision of Article 141 of the Indian Constitution binds other courts to abide any guidelines prescribed in the interest of the nation. In 1993-94, the then Chief Justice of India, Justice Venkatachaliah, emphasised that “under our laws the police have not been conferred any right to take away the life of another person”, and “If, by his act, the policeman kills a person, he or she commits the offense of culpable homicide, whether amounting to the offense of murder or not unless it is proved that such killing was not an offense under the law”. Further, the Hon’ble Justice clarified that only under two circumstances wherein encounter does not amount to be an offense (i) If killing is caused as self-defence and (ii) the police is authorised under section 46 of the Criminal Procedure Code, popularly known as CrPC, to use force against the persons as may be necessary to arrest the accused of an offense amounting to death imprisonment. Keeping these two restrictions in mind, the operation must be executed by the police as extra judicial killing always poses a terrible impression in the society.

The judiciary always acts as vigilant and observant on police encounter incidents as killing of a human being in custody or during confrontation did not obtain social acceptance leading to the designing of a controversy. The debate and discourse on police reform are being refuelled by academia and social activists justifying the court’s verdict on a few fake encounters as experienced in our system. Therefore, in 2014, the Supreme Court ordered sixteen requirements as mandatory procedural formalities on the part of the Police Department after any death caused in police encounters. The focal point of the sixteen requirements, as mandated by the Supreme Court is associated with procedural lapses partially prevalent in policing. In this context, the police are required to chasing the compliance of pre-and-post- legalities of the encounter. In, pre-legalities process, the police has to collect any tip-off pertaining to the commission of grave criminal offense in written form before prompting any operation. If such intelligence or tip-off is obtained by a higher concerned authority, the same may be noted down in some form without revealing details of the suspect or the location.

On the other hand, post legalities of encounter have extensive procedural accountabilities as per the Supreme Court, guidelines. This begins with immediate lodging of FIR in encounter deaths with all details of used firearms followed by forwarding to Court under section 157. An independent inquiry by the Criminal Investigation Department (CID) has to be initiated along with preservation of evidentiary material. A magisterial probe may also be part of the process under 176 of IPC. The National Human Rights Commission or concerned State Human Rights Commission may be informed without delay. Other than this, the Supreme Court also pointed out post-legalities after death caused by encounter such as medical aid to a victim, report submission to court, information to the victim’s next of kin, half-yearly report to the court etc.

As a statutory public body, the National Human Rights Commission always remains concerned for the protection of human rights in which unlawful killing, particularly custodial death, encounter and violation of prisons rights topping on priority. Prior to the existence of NHRC, there had been a large no of complaints with regard to unlawful killing including encounter by the police. Hence, the NHRC in 1997 and 2003 clearly underlined that “the police does not have a right to take away the life of a person”. Further, the NHRC extended detailed guidelines, making a provision of monitoring if the killing occurred in due course of time. In this circumstance, an FIR is mandated to be lodged if complaint of killing as the encounter was reported, and followed by a magisterial inquiry preferably within three months. The detailed reports must be forward to the Superintendent of Police or Commissioner.

The recent encounter Hyderabad amounts to an exercise of the police as self defense resulting in the death of four accused of gang rape and murder of a vet doctor. Though it got wide publicity caused by a high-profile case due to anger all over India, including finding ample space in the media and political system. As a democratic set-up, law has to be taken carefully in mind before judging any action positive or negative. It is the law which prevails and stands above all the sentiment, emotions and feelings.

Dr Ahmed Raza is an Assistant Professor, Department of Public Administration, Maulana Azad National Urdu University (a Central University), Hyderabad.

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