Encounter And the Law

“Encounter is meant to be used as a shield by the police, but more or less it is being used as a sword”

Recently the police had received nationwide applause for the encounter of history-sheeter gangster Vikas Dubey, but how far does our legal system justify such encounters?

Under the Indian Law, encounters are justified under private defences and section 46 of the code of criminal procedure that states

1. If the death is caused by the right to private defence and the police is attacked by the suspects.
2. Using force, extending up to the causing of death, necessary to arrest the person accused of an offence punishable with death or imprisonment for life

Any killing by the police except above two mentioned grounds are termed fake encounter and the offending officer is liable to be punished.

In Prakash Kadam vs Ramprasad Vishwanathan Gupta ¹the supreme court observed that fake ‘ encounters’ by police are nothing but cold-blooded murders, and those committing them must be given death sentence placing them in the category of ‘ rarest of rare cases’

The Uttar Pradesh police action has raised eyebrows and may have to answer a series of questions in the time to come.

Now without keeping our discussion limited to present case let’s take us to the Tamil Nadu gruesome incident where a father and son were brutally beaten to death in police custody ² and received nationwide criticism. Where does the contrast lie in two cases?

Is this because of the nature of the offence committed by the accused? Just because Vikas Dubey was a history-sheeter gangster and the father and son duo were arrested for a trivial matter, the former had no right guaranteed under our constitution?

Certainly, he had, The honourable supreme court had reiterated in several judgements that even states cannot violate the right to life and are obliged to follow the procedure established under Article 21 of the Indian constitution. In a country governed by the rule of law, we cannot have a double standard or two lenses for the same offence. Ultimately it will be citizens who would be at the receiving end of such brutality by the Police. Encounters have taken the form of cold-blooded murders, state-sponsored terrorism.

Incidents like these show the complete failure of our judicial system and points towards the colonial attitude of the police. What is more horrifying is the fact that these atrocities are not limited to any one state

As per an RTI reply, ³it was found that 1,782 cases of fake encounters were registered in India between 2000 and 2017, of which only 1,565 cases have been disposed of so far. Uttar Pradesh accounted for an alarming 44.55 per cent (794 cases) of the cases registered across all states.

It is high time that a detailed and transparent investigation must be ordered against such encounters otherwise people will lose faith in the judicial system. The role of Police in a democracy is to uphold the law, they cannot be given a green signal to breach the law in the name of encounters. We cannot afford to have an eye for an eye principle in our criminal law system. As observed by the honourable CJI S.A. Bobde after the Hyderabad encounter case ” Justice can never be instant ” ⁴

•Prakash Kadam & Etc. Etc. vs Ramprasad Vishwanath Gupta & Anr (CRIMINAL APPEAL NOS.1174-1178_OF 2011)

This article has been written by Hitesh a law student at the Faculty of Law, University Of Delhi

Also Read: How to Make a Complaint against Police?

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