Image courtesy: Times of India
A Bareilly court found a retired sub-inspector guilty of killing a 21-year-old college student in a fake encounter case three decades ago and wrongly construing him for a robber. This was in 1992! On March 31, the court of additional district and sessions judge Pashupati Nath Mishra sentenced Yudhisthir Singh, now 64 and retired, to life imprisonment for the murder of Mukesh Jauhari on July 23, 1992. The Bareilly court also slapped a fine of Rs 20,000 on the convict. With this, a 31-year fight for justice was concluded, which was being fought by Mukesh Jauhari’s mother till the year 2001, and then by his brothers after her demise. This is only the first stage in the four rungs of justice delivery however and it is more than likely that the case will continue, in appeal.
31 years on, retired cop convicted for killing in fake encounter
The incident dates back to July 23, 1992, when Mukesh Jauhari, a student of Bareilly’s degree college who was 21 at that time, was shot dead by Singh. The accused cop had claimed that the deceased Mukesh was robbing a wine shop and he had to open fire at him in self-defence. It was later found that Singh had shot him inside the Quila thana. After the fake encounter, police tried to even colour Mukesh’s character, showing him to be a history-sheeter.
Three months after the encounter, Mukesh’s father, a government gazetted officer based in Bareilly, died too, reportedly due to the trauma of losing his youngest son so brutally and abruptly. It was Mukesh’s mother who then fought for justice for her dead son, and to clear his name, for nearly a decade and finally, a case was registered in the matter on the Supreme Court’s orders in October 1997. The probe was subsequently handed over to the CB-CID and a charge-sheet was framed against the SI in 2004. Notably, till the Supreme Court intervened four years after, the crime had not even been effectively registered.
In August 2001, the 67-year-old woman, Mukesh’s mother, died, post which the case was pursued further by her family. Anil Jauhari, one of Mukesh’s brothers, had told the Times of India that it was his mother’s last wish to ensure justice for Mukesh. He said ‘Our entire family was disturbed after this incident. Our eldest brother, Arvind Jauhari, who has also passed away, was an advocate, and he fought the case after our mother’s death. He had collected a lot of evidence against the SI despite all the obstacles.”
Rakesh Jauhari, another brother, said, “Mukesh had some altercation with the SI earlier and the cop wanted to get back at him. On the day of the incident, my brother was brought to the thana after he was shot at by the SI. Police didn’t even take him to the hospital for treatment. Later, we found that police had lodged a fake FIR against my brother alleging that he was robbing a wine shop.” Mukesh was the youngest of the seven brothers.
After the deliverance of the judgment, Additional district government counsel, Santosh Srivastava, also spoke to the TOI, and said that “The retired SI was found guilty under Indian Penal Code (IPC) section 302 (murder). Nineteen witnesses were produced in the case along with sufficient evidence against the accused cop which led to the conviction.” It was also provided by the counsel that the said fine amount will be provided to relatives of the victim.
Policing the police- the menace of fake encounters
The Indian Constitution guarantees certain rights and safeguards that the State must uphold for every citizen of sovereign India. Article 21 of the Constitution is one of the most notable provisions and is part of the fundamental rights. According to Article 21,
“No person shall be deprived of his life or personal liberty except according to procedures established by law.”
The ‘procedure established by law’ mentioned in the Article must be just, equitable, and reasonable. It emphasises that no one’s life or personal liberty shall be taken away except in accordance with the legal procedure. As a result, there is an implied guarantee against torture or assault by the state or its law enforcement agencies. Only through a legal procedure can a person be punished, whether by deprivation of life or personal liberty. This means that before punishing a person, a trial according to criminal law procedure, a judgment based on evidence and reasons, an opportunity for the accused to be heard, appeal provisions for checking errors in the trial court’s verdict, and so on are required. When police play the role of judge and executioner by eliminating accused persons through staged encounters, there is no following of procedure established by law. This leads to a direct violation of Article 21 of the Constitution.
In the Manual on Human Rights for Police Officers (2011), issued by National Human Rights Commission (NHRC), states that,
“The law says that no one including the police has an unqualified right to take the life of another person. Causing death of a person by a police officer may amount to murder or culpable homicide not amounting to murder, unless it is established that the causing of death is for justifiable reasons. If a police officer kills someone in an encounter, he/she must prove that the death was caused either in the legitimate exercise of the right of private defence or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment. This can only be ascertained by a proper investigation and not otherwise”.
In Om Prakash v. State of Jharkhand, 2012, the Supreme Court observed,
“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 recognised as legal by our criminal justice administration system. They amount to State sponsored terrorism”.
In Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr, 2011, a Supreme Court division bench comprised of Justice Markandey Katju and Justice Gyan Sudha Misra went so far as to say that police officers found guilty of murder in the guise of encounters must face the death penalty. The judgement stated:
“That in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of the rare cases. 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.”
Despite such judicial denouncements of extra-judicial killings by uniformed personnel, they continue to happen, such as in this case.
In PUCL v. State of Maharashtra, 2014, the Supreme Court laid down 16 guidelines/procedures ‘to be followed in the matters of investigating police encounters in the case of death as the standard procedure for thorough, effective and independent investigation’ issued by the NHRC. A Magisterial inquiry must be invariably held under section 176 of the Criminal Procedure Code (CrPC), in all cases of death which took place in the course of police firing and a report thereof must be sent to the Judicial Magistrate having jurisdiction under section 190 of the CrPC. And also the information of the incident without any delay must be sent to NHRC or the SHRC, as the case may be. If at the end of the investigation, if there are any materials/evidence on record to show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be strictly initiated and he should be placed under suspension. The court also said that, the guidelines will also be applicable to grievous injury cases in police encounter, as far as possible.
In Extra Judicial Execution Victim Families Association v. Union of India, 2017, the petitioners compiled a list of 1528 alleged extra judicial killings at the hands of the police and security forces in Manipur alleging that no FIRs were registered. Innocent people with no criminal records who were later labeled militants were among those killed. The Supreme Court-appointed Commission investigated six of the petitioners’ claims and determined that they were not genuine encounters and that the victims had no criminal records. The two-judge bench, comprised of Justices Madan B Lokur and Uday Umesh Lalit, ruled that the rule of law would apply even when dealing with a “enemy.” The Court ruled that members of the Manipur Police or Armed Forces who committed excesses while performing their duties would be prosecuted.
All of the preceding cases demonstrate the importance of being cautious and skeptical when accepting the police version of encounter killings. They have frequently been proven to be fake and staged. Police officers have power that they can abuse, but at the end of the day, even police officers are not above the law.
Justice Delayed is Justice Denied
The NHRC explained that the only two circumstances in which such killing would not constitute an offence were (i) “if death is caused in the exercise of the right of private defence”, and (ii) under Section 46 of the CrPC, which “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 India, during a trial, both the accused and the victim party get a fair chance to prove their stances and present their evidence. Since in this case, the police officer had abused the law, the usual defense pressed into service by the Police officers to justify encounter killings, which is that the act of killing had to be resorted to in order to save themselves from the deadly attack made by the victims, was used. 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.
It took 31 years for the Indian legal system to punish the actual perpetrator. India has a criminal justice system dotted with gaping holes, with no time bound trials. The errant law enforcement agencies (policemen in this case) and the prosecution enjoy a cozy relationship.
Cases get transferred from inferior to superior courts, fresh arguments and evidence must get presented, and dates are assigned after long gaps, sometimes of a year. In some cases, mostly where the accused are not so privileged, they often languish for years in jail before their cases are even heard by the court, while in many cases, mostly of the ones who have power, the accused manage to escape from the hands of the justice.
In this case, 31 years passed before the perpetrator was put behind bars. In those 31 years, the kin of the victims continued to fight for justice, and some even died fighting for justice. Since he was a police officer, manipulating the facts and evidence became easier for him. While, in this case, justice was delivered, it is also essential to note that it was delayed by decades, and such delay in justice is equivalent to denial of justice. This was more than a case of fake encounter, it was also a case of custodial death, where the police personnel responsible for causing the death of a person in custody managed to manipulate the laws and cause a delay in an already inordinately delayed trial.
It is essential that in cases where officers of the state misuse their powers, these cases are dealt with in special courts, applying procedural and substantive guidelines laid down in various Supreme Court judgements and even the manual of the NHRC. The non-application of conclusions and findings laid down institutions higher up in the justice delivery — by police and trial courts have made a near mockery of the lofty principles of justice. For the mother and brothers of Mukesh Jauhari there is a sad twist to the tale. Loss of a valued family member, life and character shaming and the mammoth resources required to even achieve this measure of justice, 31 years later.