Image courtesy: Fake Encounter / The Quint
Encounters or what should be more accurately termed “extra-judicial killings” are a fanciful practice indulged in by trigger happy cops who then wear the “encounter specialist” tag with pride. When you actually call it by the latter name, is when you realise the gravity of the term and its implication. Such killings are part and parcel of vigilante justice where the police treat the accused, who has not been proven guilty in court, as guilty and lawlessly punishes him, by taking his life.
In official data released by UP government in March, it proudly revealed how it had killed 178 persons accused of serious offences after having conducted 10, 713 encounters, reported Hindustan Times. Meerut had recorded that highest number of encounters (3,152) followed by Agra (1,844) and Bareilly (1,497). In each of these districts, 63, 14 and 7 persons had been eliminated, respectively.
This averages to about a total of five extra-judicial killings every over the last six years!
Proudly declaring the high number of these “encounter killings” to be a badge of honour, Additional Director-General (law and order) of the U.P. Police, Prashant Kumar, told Hindustan Times on April 16, 2023 that this collective police action is a “befitting reply to criminals”.
As of August 2021, at least 3,302 accused were injured in encounters in UP since March 2017 (that is when Yogi Adityanath first became the Chief Minister of the state) and these injuries are generally below the wait, on the legs, leaving many disabled.
It is rare that police personnel ever get punished ort reprimanded for taking the law into their own hands. Rare is it even that a criminal complaint, an FIR gets registered in such cases. In one such case, in February 2022, an FIR was filed against then Superintendent of Police, Additional Superintendent of Police, three circle officers and in-charges of 10 police stations. The incident occurred a staggering 19 years ago in October 2004 when the Jalalabad Police shot two persons accused of dacoity. What evidence for trial is likely to survive after close to two decades?
Official data accessed from the UP police in 2018 revealed that within 10 months of Yogi Adityanath coming to power in UP, 34 accused persons had died in 1,142 encounters leaving 265 injured.
Many of those killed in such encounters are allegedly “wanted criminals” with a bounty on their heads. For instance, gangster Vikas Dubey who was killed in July 2020 when the vehicle he was traveling in allegedly overturned and he tried to escape; he is reported to have a series of serious cases against him; ganster Tinku Kapala with a bounty of Rs 1 lakh was similarly killed in July 2020, Bangladeshi gangster Hamza was killed in October 2021, gangster Vinod Kumar Singh, with a bounty of Rs 1 lakh was killed in September 2022.
Most recently, April 13, Atiq Ahmed’ son Asad (wanted in the case of murder of Umesh Pal Singh) and Ghulam were killed in an encounter in Jhansi on Thursday.
Do encounters have a political connection?
The linkage between the increase in numbers of extra-judicial killings and the ruling party in the state become fairly apparent when the higher echelons bosses of the same outfit claim political credit, even using it as propaganda to demonstrate an improvement in law and order situation. Ajay Bisht aka Adityanath has self-proclaimed this phenomenon as his ‘zero-tolerance’ policy against anti-social elements. He has received high level endorsement with Prime Minister Narendra Modi and Union home minister Amit Shah both showering praise for the improved law and order situation given that the state is the chosen venue for the Global Investors Summit. The rhetoric being that this attracts more investment.
Many of these extra-judicial killings over the past years have been attributed to Adityanath’s “Operation Clean”.
Barely two months after assuming power in March 2017, Yogi had said in an interview, “agar aap apradh karenge, toh thok diye jayenge” (if you commit a crime, you will be smashed/killed), hardly befitting a chief minister who occupies a constitutional post. Another name given to the policy that encourages such killings is “Operation Langda” (Operation Disabled/Lame Leg) which implies that many accused were rendered disabled after being shot in their legs during these encounters. In 2021, just before Republic Day, the state’s chief secretary –again the senior post bureaucrat from the IAS cadre who swears an oath under the Constitution –had asked district magistrates to popularise the phrase “Ab Tak 3,000” (Three Thousand and Counting..) describing the number of “encounters” committed by the Adityanath government until then.
There is no centralised data on such killings. Information provided by the National Human Rights Commission (NHRC), “encounter deaths” were highest in number in Chhattisgarh (191) followed by UP (117) and Assam (50). The period for which this data has been made available is January 1, 2017 and January 31, 2022.
What exactly lies behind these killings?
A 2018 article in Newsclick wrote, “The testimonies of eyewitnesses and family members of those who were killed in the ‘encounters’ and a close examination of the FIRs and post-mortem reports clearly show that most of these killings are cold blooded murders – where no gun battle apparently took place.
For many of those killed or injured, it appears that the police posthumously inserted clauses of criminality in their record to justify the killings or injuries. The law is clear and each of these killings is a violation: even someone with criminal records cannot – under any circumstances – be gunned down in this way, the police if bound to follow due process. The staggering numbers of false and manipulated criminal complaints and FIRs, the absence of integrity and accountability in police investigation further strengthens arguments against this arbitrary practice.
Despite numerous judicial pronouncements, the abhorrent practice continues within law enforcement, police practice. Far from penalising these extra-judicial killings, since the CRPC protects the policeman from “acts done in good faith”, a pervasive trigger happy force enjoys wielding the gun and functioning with impunity.
Besides, Bollywood films and pop culture glorify the encounter shoot-out, the middle and privileged classes and castes root for “an eye for an eye” approach. The abysmal delay and decay in the administration of criminal justice becomes an excuse for the police taking law into their own hands.
Legal jurisprudence
When cases finally reach the higher judiciary, the Supreme Court, the jurisprudence has been unequivocal. Much damage is however already done by then and rare is it that guilty policeman are punished.
Speaking against extra-judicial killings, the Supreme Court in Om Prakash and others Vs State of Jharkhand [Criminal Appeal o. 1491 of 2012; decided on September 26, 2012] said,
“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. This 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.” (Para 38)
In Prakash Kadam vs Ramprasad Vishwanath Gupta [Criminal Appeal Nos.1174-1178 of 2011; decided on May 13, 2011], the Supreme Court prima facie held that some police officers and staff were engaged by some private persons to kill their opponent and that the police behaved like contract killers and did a fake encounter. The court, in its judgement, said,
“Fake `encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.” (Para 25)
“We warn policemen that they will not be excused for committing murder in the name of `encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The `encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of `encounter’ and get away with it should know that the gallows await them.” (Para 26)
In PUCL Vs State of Maharashtra [Criminal Appeal No. 1255 of 1999; order dated September 23, 2014] in 2014, PUCL had challenged 99 encounters by Mumbai Police between 1995 and 1997 and sought guidelines on procedure to following in investigating police encounters. The court issued the following guidelines which are not just applicable in case of death in encounters but also grievous u=injuries caused during such encounters (the guidelines are abridged):
(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.
(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 Section 157 of the Code without any delay.
(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 which will identify the victim, recover evidence, determine the cause of death, ensure fingerprints of victim are sent for analysis, ensure that post mortem is conducted by two doctors of district hospital and the same should be video graphed.
(4) A Magisterial inquiry under Section 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 Section 190 of the Code.
5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, information of the incident to be sent to NHRC or the State Commission.
(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 Section 173 of the Code. The trial, pursuant to the chargesheet 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.
(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 Section 357-A 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 Article 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.
Besides the NHRC has laid down specific guidelines in cases of deaths caused in Police action:
A. When the police officer in charge of a police station receives information about death in an encounter with the police, he shall enter that information in the appropriate/ register.
B. Where the police officers belonging to the same police station are members of the encounter party, whose action resulted in death, it is desirable that such cases are made over for investigation to some other independent investigation agency, such as State CBCID.
C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall be investigated by State CBCID or any other specialized investigation agency.
D. 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. The relatives of the deceased, eye witnesses having information of the circumstances leading to encounter, police station records etc. must be examined while conducting such enquiry.
E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/police investigation.
F. 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 officer is established beyond doubt.
G. (a) All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in the following format:
1. Date and place of occurrence
2. Police station, district
3. Circumstances leading to death:
(i) Self-defence in encounter
(ii) In course of dispersal of unlawful assembly
(iii) In the course of effecting arrest
(iv) Any other circumstances
4. Brief facts of the incident
5. Criminal case No.
6. Investigating agency
(b) A second report must be sent in all cases of death in police action in the state by the Sr. Superintendent of Police/Superintendent of Police to the commission within three months providing following information:
1. Post mortem report
2. Inquest report
3. Findings of the magisterial enquiry/enquiry by senior officers disclosing:
(i) Names and designation of police official, if found responsible for the death:
(ii) Whether use of force was justified and action taken was lawful:
(iii) Result of the forensic examination of ‘handwash’ of the deceased to ascertain the presence of residue of gun powder to justify exercise of right of self defence; and
(iv) Report of the Ballistic Expert on examination of the weapons alleged to have been used by the deceased and his companions.
Conclusion
Despite judicial strictures and some guidelines, such politically induced crimes by men and women in uniform, continue with societal sanction and approbation. The law, too is not clear and offers escape routes for trigger happy policemen. Such practices signify nothing less than a complete subversion of the rule of law.
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