JAMIA MILLIA ISLAMIA

FACULTY OF LAW

ACADEMIC SESSION: 2020-21

CODE OF CRIMINAL PROCEDURE- FINAL

DRAFT
‘FAKE ENCOUNTER AND HUMAN RIGHTS’

SUBMITTED TO: SUBMITTED BY-

Dr. ASAD MALIK TAIYEBA NOOR FATIMA

B.A.LL.B. (Hons.), 4th YEAR

8th SEM, SELF FINANCE

ROLL NO. - 55

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 ACKNOWLEDGEMENT

In this, Eighth Semester of B.A.LL.B.(Hons.) Course at Faculty of Law, Jamia Millia

Islamia, I have got the good fortune to learn ‘Code of Criminal Procedure’. Here, the
guidance of Dr. Asad Malik Sir, Faculty of law, made me able to understand the concept
and, thus, I greatly owe to him. He had given a proper direction to my study ‘Code of
Criminal Procedure’. His unfettered support made me able to complete this project.

I am thankful to other faculty members of Jamia Millia Islamia for their co-operation.

I am also thankful to the librarians of Jamia Millia Islamia for their support.

I remain, of course, entirely responsible for any errors.

TAIYEBA NOOR FATIMA

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TABLE OF CONTENTS
Introduction……………………………………………………………………………4

Concept of Extrajudicial Killings and its Genesis in India…………………………4

History of allegedly Fake Encounters and Extrajudicial Killings………………….5

Legality of Encounter Killings………………………………………………………..7

Reasons for Fake Encounters…………………………………………………………8

Supreme Court’s directives on Handcuffing…………………………………………9

India’s obligations in accordance with International Laws………………………..10

Judicial Interpretation of Fake Encounters………………………………………..11

Human Rights and ambit of Article 21…………………………………………….13

Guidelines issued by Supreme Court for Investigation of Encounter Killings…..14

Guidelines framed by National Human Rights Commission (NHRC)…………..16

Conclusion…………………………………………………………………………18

Bibliography…………………………………………………………………….....19

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INTRODUCTION

The highly mysterious death of gangster Vikas Dubey has created a huge uproar, who has
been gunned down in a much whimsical-orchestrated approach just a day after his arrest, and
has raised some grave concerns on the credibility of encounters and extra-judicial killings.
While one section applauded the police for ‘immediate justice’, another termed the
encounter as ‘extra-judicial murder’ and raised questions on its legality.
India functions on rule of law and on the principle of ‘presumption of innocence’ till the
guilt is proved against the person charged. The judicial process upholds the supremacy of law
and prevents arbitrary exercise of power. Even Ajmal Kasab, perpetrator of the 26/11, got a
trial. 1

CONCEPT OF EXTRAJUDICIAL KILLING AND ITS

GENESIS IN INDIA

Extrajudicial killings are cases where a government using its state machinery kills citizens, in
disregard to the judicial process. According to Oxford Dictionary, an encounter is defined as an
‘incident in which police shoot dead a suspected criminal under controversial circumstances,
which may even include their personal gain.

As terrorism and organized crime is increasing each day, so are the encounters. The
encounter culture started somewhere in the 1970’s when Naxalites got split from Marxists,
although the formation was directed at ensuring land reforms, but ultimately it turned as a
revolt against the Indian state and the successive governments of the eastern states of India
had to resort to encounter strategies to tackle it. 2

The procedure was again implemented in the mid-80’s in states like Punjab and Assam as a
measure of counter-insurgency and had a ‘bullet-for-bullet’ policy which were given
several codenames such as ‘Operation Wood-rose’, ‘Operation Blue-star’, and ‘Operation
Black-thunder’ etc.

1
Fake encounter killings: A denunciation to the criminal justice system, available on: blog.ipleaders.in (Last
visited on April 20, 2021)
2
Extrajudicial killings in India: Rule of Law v. Police Impunity, available on: www.jurists.org (Last visited on
April 20, 2021)

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In the early 2000’s, the Mumbai Police used these same encounter operations to fend off the
city’s underworld, where a number of gangsters were waging war against each other, to
establish supremacy over the city. Contract killings and extortion rackets became a practice in
Bombay during those days.

There has been a recent spate in controversial ‘encounter culture’, in India. In Manual on
Human Rights for Police Officers, it is claimed, between 2000 and 2007, there have been 712
cases of police encounters in the country, where Uttar Pradesh surpassed other states and
stood at 324 cases, while Gujarat ended at the bottom with 17 cases.

In reply to an RTI filed by Firstpost, the National Human Rights Commission (NHRC) came
up with a data of 1,782 cases of fake encounters in India during 2000-2017 with 44.55 per
cent of the cases originating from the state of Uttar Pradesh and as per NHRC’s last annual
report of 2017-18, there were 164 deaths resulting from police encounters that particular year.
As per data put forth by Uttar Pradesh police, 1142 encounters were witnessed in the entire
UP between March 20, 2017 and January 31, 2018.3

HISTORY OF ALLEGEDLY FAKE ENCOUNTERS AND

EXTRA JUDICIAL KILLINGS

India has a dubious record of encounter killings. From the carnage of ‘Bhagalpur blindings’
in 1979-1980, in the Bhagalpur state of Bihar, in which the Bihar police blinded 31 under-
trials by pouring acid into their eyes to the Pilibhit encounters of 1991, where 10 passengers
from a bus of Sikh pilgrims were asked to get off the bus, and were later encountered,
claiming that all those encountered were Khalistani terrorists and had criminal cases against
them. Later at the instructions of the Supreme Court, the CBI investigated the case and
submitted that the intent behind the killings was to earn fame and succeed in promotion
rankings for killing “terrorists”.

Recently, in December 2019, on the similar lines with this incident, where four men accused
of gang-raping and thereafter burning the survivor to death were shot down by the Telengana

3
Slippery slope of extra-judicial murders, available on: www.firstpost.com (Last visited on April 20, 2021)

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Police in Hyderabad, and as usual police labelled their action as ‘encounter’ and said they had
to open fire in defense.

The country has a history of allegedly fake encounters ranging from Veerapan of Tamil
Nadu in 2004, Ishrat Jahan who was also encountered in 2004 by the Gujarat police for
which the trial is still underway in a CBI court in Ahmedabad, Sohrabuddin Sheikh who
was again encountered by the same Gujarat police in 2005 in which lately on December 21,
2018, all the 22 accused were acquitted by a special CBI court citing lack of evidence.

The Batla House encounter which was put into action by a Delhi police special team in
2008 in which the Delhi High Court in February 2018, allowed the police to submit
additional evidence before the trial court and the Manipur extrajudicial killings in which the
PIL alleges 1,528 killings in Manipur between 2000 to 2012 by security forces and police,
where the latest status is that the bench of Justice M B Lokur who was hearing the matter has
dissolved after his retirement and in July, 2019, the CJI had assured to reconstitute the bench
and the list goes on.

In lieu of the spike in encounters, the Andhra Pradesh High Court ordered in Andhra
Pradesh Civil Liberties Committee v. The Government of AP,4 and besides making
it mandatory for the police to register an FIR against police officers after every encounter
death, also held that a judicial magistrate would decide the next steps, as to whether continue
the trial or close the case after hearing the police argument.

4
[2009 (1) ALT 754]

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LEGALITY OF ENCOUNTER KILLINGS

Although there is no direct provision in the Indian law that legalizes encounters, however
there are certain provisions, which may be interpreted depending on case-to-case basis, which
endows officers involved in encounters, with certain powers to deal with criminals.

The usual defense, brought in as a shield, by the officers to validate their act is that the killing
had to be availed, in order to save themselves, from the attack made by the alleged criminals
i.e. the ‘right of private defense’. The law relating to the right of private defense is contained
in Section 96 to 106 of the Indian Penal Code (IPC), 1860.

Section 96 of the IPC declares that any act done in exercise of ‘right of private defense’ is not
an offense. Section 97 states the defense is available both in respect of ‘body’ and
‘property’, however Section 99 cautions that the defense is not available for inflicting more
harm than is necessary for defense.

Section 100 specifies the various circumstances (death, grievous hurt, kidnapping, rape,
acid attack etc.) under which a person committing death in exercise of private defense, will
be justified.

The officers also take the plea of Exception 3 of Section 100 of IPC, which has been given
to protect a public servant, and he who exceeds the power given to him by law, causes death
in good faith, necessary for the discharge of duty. However, this exception clause will not
apply if the act is illegal or against public policy, or exceeds the power given to him by law.5

Applying the above provisions, the outcome could result in the following:

1. Acquitted from all charges: If the act of causing death falls under any of the
sections enumerated above, the officers involved won’t be guilty of any offence.
2. Murder: If the act of causing death is committed with ‘premeditation’ and
‘intentionally of doing more harm than is necessary’ i.e. exceeding the powers
given to him, and does not fall under any of these sections, then the act will be

5
Fake Encounter Cases, available at: https://scroll.in (Last visited on April 20, 2021)

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 liable for ‘Murder’, falling under Section 300 and punishable under Section 302
IPC.
3. Culpable Homicide: On the contrary, if the death is caused ‘without
premeditation and unintentionally’, but by ‘exceeding the power given by law’,
then the offender would be guilty under Section 299 i.e. ‘culpable homicide, not
amounting to murder’, and would be held liable under Section 304.6

REASONS FOR FAKE ENCOUNTERS

• Impatience with fundamental principles of the Criminal Justice system: The

main reason attributed to rejoice over ‘police executions’ is the lumbering pace
and sluggish judicial system, in the sense that encounters provide speedy
justice. The paradigmatic functioning and delay in the Courts, sometimes compels
the police to take law in their hands. Trials drag on for years, and the outcome
remains uncertain, particularly in case of criminals, who enjoy money and muscle
power, and sometimes also manage to win elections, behind bars. A total
‘transformation’ of the criminal justice system with ‘fast-track
courts’ and ‘police reforms’ is in dire need of the hour.
• Political Pressure: It is often seen that the victims of these types of encounters are
dreaded criminals who have multiple cases registered against them in several types
of heinous offences including rape etc. but still they manage to roam around freely
on bail in lack of evidence, because of instilling so much fear amongst everyone
that either no witness wants to present their statement or all the witnesses turn
hostile.

It is possible only because of total nexus between politicians and the administration, to whom
these types of offenders often finance for elections and other purposes, but sometimes due to
excesses and pressure by common people, false encounters are often showcased by police
officers because there is compulsion by the political masters to produce quick results by any

6
Debriefed: The law on encounter killings, available on: www.barandbench.com (Last visited on April 20,
2021)

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means, fair or foul, so that the nexus formed by the politicians themselves doesn’t get busted,
at the time of trial.7

SUPREME COURT’S DIRECTIVES ON HANDCUFFING

One of the main concerns that is always raised during the encounters is handcuffing, while
transporting the prisoners and offenders from one state to another, or from court to jails and
vice-versa. But in cases of encounters, it is often seen that the police take defense, on the
ground that the victim tried to snatch and flee with the firearms, and ultimately getting killed
in ‘retaliatory firing’.
The apex court has repeatedly from time-to-time issued directives on the procedure to be
ensued while handcuffing. The landmark Supreme Court case on handcuffing is Prem
Shankar Shukla v Delhi Administration8, where an under-trial prisoner filled a petition in
the Supreme Court stating that he and some other prisoners were being forcibly handcuffed
despite the Supreme Court directive in Sunil Batra v Delhi Administration,9
[MANU/SC/0184/1978], that handcuffs should only be used if a prisoner displays an aptitude
or has a past record for violence or escaping.

The Supreme Court observed that using handcuffs and fetters chains on prisoners infringes
the principles of basic human dignity, which is embedded as a constituent of our
constitutional culture. This norm does not hold the test of Articles 14, 19 and 21.

“To clog a man’s hand, foot and limbs with strips of steel, drag him along on the streets and
wilfully make him stand for hours in the courts is to treat him harshly, tarnish his nobleness,
setting an atrocious precedent for the society and foul the essence of our constitutional
culture”.

Justice VR Krishna Iyer stated: “The guarantee of human dignity forms an essential part of
our constitutional culture and to manacle man is more than to humiliate him, deprive him of

7
Extrajudicial killings: India’s long history of ‘fake encounters’, available on www.lowyinstitute.com (Last
visited on April 20, 2021)
8
1980 AIR 1535, 1980 SCR(3) 855
9
1980 AIR 1579, 1980 SCR (2) 557

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humanity and, therefore, to infringe his very personhood in the disguise of dangerousness and
security. Even a prisoner has a living soul as a person, and deserves not to be treated as an
animal.
The Supreme Court has defined guidelines prescribing on both the aspects as to when and
how the use of handcuffs is justified.

Handcuffs are to be applied only if a prisoner is:

1. Involved in serious non-bailable offences, or

2. Previously convicted of a crime, or
3. of desperate violent character, disorderly or obstructive, or
4. likely to commit suicide, or
5. Likely to attempt escape.

The grounds for using the handcuffs must be noted in the Daily Diary Report and must also
be placed before the court.

On the argument made by the state that handcuffs are needed so as to prevent the prisoners
from escaping, the Court stated that Insurance against escape does not compulsorily
require handcuffing. Lastly, the Court observed ‘Iron curtain cannot be drawn between the
prisoner and the constitution and that the Court has a responsibility to ensure that the
constitutional purpose of the deprivation is not undermined by jail rules and administration’.

INDIA’S OBLIGATIONS IN ACCORDANCE WITH

INTERNATIONAL LAWS

The United Nations Human Rights Council, is a United Nations body, set up by the UN
General Assembly, whose mission is to promote and protect human rights around the globe
and hold governments to account on their human rights violations. It is the United Nations
top human rights body.

India got elected for a term of three years in the UNHRC, starting January 1, 2019, securing
188 votes, in the Asia-Pacific league.

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Before being selected to the HRC, India submitted 28 pledges and commitments in the
domain of human rights to present its candidature as a Council member. India also pledged to
continue to maintain the highest standards in upholding protection of human rights as well as
fostering a culture of transparency and accountability in the functioning of Government.

However, a report by Commonwealth Human Rights Initiative (CHRI), appealed India to

oblige by its pledge made to human rights council, and stated, despite the commitments made
by India, yet in the past months the country has witnessed a tremendous increase in
“encounters” and extrajudicial killings in different parts of the country, and labelled these
deaths as unlawful, inhumane, unnecessary, and illegitimate.

The Office of the High Commissioner for United Nations Human Rights, on July 4, 2018,
urged India to complete investigation in the Manipur extrajudicial killings, which has been
pending since long.

Similarly, on January 11, 2019 a press release by the Office of the High Commissioner for
United Nations Human Rights expressed its displeasure about allegations of at least 59
extrajudicial killings in Uttar Pradesh police custody since March 2017.

JUDICIAL INTERPRETATION OF FAKE ENCOUNTERS

It has been held by Supreme Court in Prakash Kadam & etc. v Ramprasad Vishwanath
Gupta & Anr,10 that ‘Fake encounters’ are equivalent to cold blooded’ and ‘brutal
murder’ by persons who are expected to uphold the supremacy of law. Also it has been
observed by the Hon’ble court that if crimes are committed by common people, ordinary
punishment should be given, but if the offence is committed by policemen much stricter
punishment should be given to them because they do an act totally opposed to their duties,
and where a fake encounter is established against policemen in a trial, they must be given
death sentence, considering it as the ‘rarest of rare cases’.

10
(2011) 6 SCC 189

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The Court further alerted the police department that they will not be exonerated for carrying
out ‘murder’ in the name of ‘encounter’ on the rationale that they were obeying to the orders
of their superiors in the department or politicians, howsoever high. If a policemen is given an
unlawful order to do a fake ‘encounter’, law casts a duty upon him to decline to execute such
illegal order, otherwise he will be held liable for murder, and if found guilty sentenced to
death.

Concluding, the bench of Markandey Katju. J, placed the encounter philosophy on par
with ‘Criminal philosophy’ and took the example of Nuremburg Trials stating that “In the
Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’,
nevertheless they were hanged and those police personnel, who perceive they can kill people
in the name of encounter and get away with a free hand, should know that ‘gallows await
them’.

Further in Om Prakash v State of Jharkhand,11 the Hon’ble Supreme Court, condemned

these incidents as ‘State-sponsored terrorism’ and stated that it is not the duty of the
policemen to neutralize the accused just because he is a ‘dreaded criminal’. The police have
to arrest the culprit and put them up for trial. Such killings must not be cherished. They are
not justified by our criminal justice administration system.

The Court also noted that many policemen, while performing their duty, get injured and
killed but also stated that police have to do their legal duty of arresting the criminals, and
have to guard themselves as well.

Requirement of sanction to prosecute protects the policemen, who are sometimes required to
take extreme action against criminals to protect public life and property and to protect
themselves against any aggression. Unless clear evidence is on record to prove that their
action is ‘indefensible with malafide intention and revengeful, they cannot be prosecuted.

11
[(2012) 12 SCC 72]

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HUMAN RIGHTS AND AMBIT OF ARTICLE 21

The Constitution of India has guaranteed human rights in the form of fundamental rights
in part III of the Constitution. Article 21 specifically focuses on the protection of life and
personal liberty. The Human Rights is an inbuilt feature of the Fundamental Rights Articles
in the Constitution of India.

It is relevant to refer to the judgment by Division bench of the then Chief Justice of India
RM Lodha and Justice Rohinton F. Nariman in 2014 case of People’s Union for Civil
Liberties (PUCL) v State of Maharashtra,12 where the genuineness of encounters in which
nearly 130 people died was in question.

The court first highlighted that ‘Article 21 of the Constitution guarantees ‘sacred and
cherished right’ to life or personal liberty to ‘every single person’ in the country and that
even the state is not exempt to abide by that right.

The Bench acknowledged that they are aware of the complex and delicate task that the police
are expected to perform in tackling crime, but such criminals must be handled by the police
in an effective manner so as to bring them to justice by ensuring rule of law.

The Hon’ble Court remarked that in a society governed by rule of law, it is mandatory that
extra-judicial killings are independently investigated, without any bias, so that justice
prevails.

12
[(2014) 10 SCC 635]

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GUIDELINES ISSUED BY SUPREME COURT FOR
INVESTIGATION OF ENCOUNTER KILLINGS

The Hon’ble Supreme Court in the same matter of PUCL v. State of Maharashtra,13 after
taking into account the suggestions made by Bombay High Court, the Counsels, National
Human Rights Commission (NHRC) & other stakeholders issued the following guidelines to
be followed in the investigation of death following police encounters:

• Record tip-off: Any inputs received about criminal movements or activities

related to the commission of grave criminal offence, shall be recorded in writing or
in some electronic form.
• Mandatory registration of FIR in encounter deaths: Pursuant to receipt of such
intelligence, if any encounter takes place in which firearm is used by the police
party and the outcome of which is death of the offender, then an FIR shall be
registered and the same shall be submitted to the court under Section 157 of the
CRPC as per the procedure established under Section 158 of the code.
• Independent probe by CID/ Special Police Team: The CID or police team of
another police station under the monitoring of a senior officer (at least a level
above the head of the police party engaged in the encounter) shall administer an
impartial investigation into the encounter, taking into account various factors as
stated out in the order in detail.
• Magisterial inquiry: In all cases of police firing where death occurs, a magisterial
inquiry under Section 176 of the CRPC must be held and then a report must be
sent to the Judicial Magistrate.
• Conveying information to the Human Rights Commission: The information of
the incident must be sent to NHRC or the State Human Rights Commission, and
involvement of NHRC is not necessary unless there is serious doubt about
impartiality of the investigation.
• Informing victim’s descendants: In the event of death, the next of kin of the
alleged criminal must be informed at the earliest.

13
AIR 2014 SC 456

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• Medical Aid: If the criminal/victim is injured, medical aid should reach him at the
earliest and a magistrate or medical officer must record his statement along with
the certificate of fitness.
• No Delay: The FIR, panchnamas, sketch, and police diary entries should be
forwarded to the concerned Court without any delay.
• Co-operation by officers involved in an encounter: The police officer(s)
concerned must surrender their weapons for forensic and ballistic analysis, or any
other material as required by the investigating team, as per rights under Article
20 of the Constitution.
• Sending report to Court: After full investigation, the report shall be sent to the
competent court under Section 173 of the CRPC, after which trial must be held.
• Submission of half-yearly report: Six monthly statements of all cases where
deaths have occurred in police firing must be sent to NHRC by DGPs, which must
reach NHRC by 15th day of January and July of each year.
• No Instant police awards till clean chit: The concerned officers shall not be
instantly promoted or awarded soon after the occurrence of the encounter. The
police department can proceed ahead with the rewards only, when the gallantry of
the concerned officers is established beyond doubt.
• Disciplinary action: If the evidence on record after the completion of the
investigation depicts that death had occurred by use of a firearm amounting to
offence under the IPC, disciplinary action against such officer must be initiated
forthwith and services of such officer be terminated for the time being under
suspension.
• Legal recourse to victim’s descendants: Should the family of the victim find any
lack of independent investigation or impartiality by any of the functionaries
involved in the investigation process, they may make a complaint to the Sessions
Judge having territorial jurisdiction over the location of the incident.

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GUIDELINE FRAMED BY NATIONAL HUMAN RIGHTS
COMMISSION (NHRC)

In a letter, dated March 29, 1997, Justice MN Venkatachaliah, then Chairperson of NHRC,
who was also the Chief Justice of India in 1993-94, wrote to Chief Ministers of all States
and UT’s, that the Commission has been receiving complaints from the members of the
general public and from the non-governmental organisations of instances of increasing fake
encounters by the police, where the suspects are killed, rather than subject to due process of
law.

Justice Venkatachaliah further stated 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 takes life of a person, he commits the offence of culpable homicide whether
amounting to the offence of murder or not is a matter of question, unless a case is made out
establishing that such killing was not an offence.

The only two conditions in which such killing would not constitute an offence were:

1. If death is caused in the exertion of the right of private defence, and;

2. Under Section 46 of the Code, which ‘authorises the police to use force, extending
upto the causing of death, as may be necessary to arrest the person subjected to an
offence adjudicated with death or life imprisonment’.

Certain guidelines were also directed for the states to follow in the letter, in case deaths occur
during encounters. Subsequently, on May 12, 2010, then NHRC acting chairperson Justice
GP Mathur, again brought into light the 1997 letter, and reiterated that ‘the police does not
have a right to get away freely after taking the life of a person’.

The new guidelines added by the 2010 letter made magisterial inquiry mandatory in all
cases, where death occurs as a result of police action, within three months. The commission
also required reporting of all cases of death to be made to it, by the Senior Superintendent of
Police/ District Superintendent, within 48 hours of the death, along with submission of post-
mortem report, inquest report and findings of magisterial inquiry within three months.

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The NHRC has also laid down certain guidelines, which aims at making video-recordings
and photography of the post-mortem examinations, of any person who dies in police
action, which has to be submitted to the commission, for further course of action.

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CONCLUSION

The Law of the land on many occasions has been incompatible to deal with individuals, bent
on taking the law and order in their own hands. The century-old-outdated laws of the criminal
justice system, takes years to bring justice and has ceased to deter criminals, which ultimately
leads to ‘haphazard investigation’ of crimes and contributes to delay.
The increase in the complex nature of crime requires a synergy between the judiciary, the
prosecution and the police, which is only possible through a reform in the criminal justice
system.
Although justice imparted by the courts is often laggard, extrajudicial killings have no place
in a liberal and rights-respecting democracy. An independent, impartial, effective and
thorough criminal investigation should be conducted after every alleged extrajudicial
execution, so as to expose the unholy nexus of people in administration and police, who
provided patronage and protection to such hardened criminals. Encounters shouldn’t become
a tool to bypass the law and attain short-cut justice.

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BIBLIOGRAPHY

Books:

• Batuk Lal: Code of Criminal Procedure, Orient Publishing Co., New Delhi
• Durga Das Basu: Criminal Procedure Code, 1973, LexisNexis India, Gurugram

Websites

• www.barandbench.com
• blog.ipleaders.in
• www.scroll.in
• www.loweyinstitute.com
• www.legalservucesindia.com

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