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Police Encounters – A Necessary Evil?

Dr. N. C. Asthana, IPS (Retd)

Fake police encounters, by a customary definition, mean those contrived

situations where police use lethal force upon a criminal who is already in their
custody. Some of them are so outrageous that courts are forced to order murder
charges against police officials. There are many encounters like Pilibhit (1991);
Bhojpur, Ghaziabad (1996); Ranbir, Dehradun (2009); Connaught Place (1997);
and the case of Prakash Kadam (2011), where the courts did punish the cops. I
have myself criticized such outrageous cases in the past. Nobody can afford to
argue that police must be allowed to remain permanently above the ‘Rule of
Law’. Nobody can envisage a situation where the police become the judge, jury
and executioner forever. We cannot envisage a situation where extrajudicial
executions become the norm in policing.

However, the question is, given the audacity and brazenness with which
criminals and terrorists have taken to committing heinous crimes; we must ask
whether it is only the State and the police that are supposed to follow the law?
Are criminals at liberty to make a mockery of the law at will and expect that the
State must treat them with utmost respect and accord them all protection until
their convictions are confirmed by the Supreme Court itself?

What the State must do if it’s Very Might is challenged by Criminals

The State or government does not exist or function in a vacuum. The State
exists for the people and it is under an obligation to perform in a manner so that
people trust the State to be their protector. Otherwise, its very credibility to exist
and govern is undermined.

Take, for example, the most recent encounter of the Atiq Ahmed gang
members, who had killed Umesh Pal. Umesh Pal, a key witness in the 2005
murder of BSP MLA Raju Pal, was shot dead in Prayagraj. His two police
security men were also injured in the attack and later succumbed to his injuries.
Raju Pal was murdered months after winning the Allahabad (West) assembly
seat in his electoral debut by defeating Atiq’s younger brother Khalid Azim.
After a 44 years long career in crime that started at the age of 17 and without a
single conviction in nearly 100 cases against him, the notorious gangster Atiq
Ahmed has recently been convicted for life for the abduction of Umesh Pal
when he had refused to retract his witness statement in spite of Atiq’s pressure.
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Atiq’s henchmen killed Umesh Pal in broad daylight in front of his house in just
47 seconds and managed to escape. They shot at them from point blank range as
they got out of his car. They tried to escape inside the house in spite of being
shot but they continued to fire at them until they fell. A bomb was also thrown.
Both the cops, Raghavendra Singh and Sandeep Nishad were martyred.

Following this daring crime, the UP Chief Minister Yogi Adityanath had vowed
in the state assembly that he would destroy the mafia in the state (“Mafiaon ko
mitti me mila denge”), and alleged that the Samajwadi Party had nurtured them
during its regime. Within days of the murder, the UP police shot down Arbaaz,
who had driven the SUV of the killers, in an encounter. Later, Vijay Choudhary
@ Usman who had fired the first shot at Umesh Pal was also killed in an
encounter. A constable was also injured in that operation. Several posh houses
of Atiq’s associates built illegally were also demolished by bulldozers.
However, other accused are still absconding and are believed to have fled to
Nepal.

The simple issue is that the crime, committed in broad daylight on a busy street,
was so daring, so outrageous, such a brazen challenge to the State, and such an
affront to the ‘Rule of Law’ that people would have lost faith in the ‘might’ of
the government and its capability to provide security and justice to the people,
had the police action not been as swift and as demonstrative as it was in the
instant case.

Desire for Encounter Following Acquittals in Jaipur Bomb Blast Case

Take the most recent case of the acquittal of the four accused of the Jaipur
Bomb Blast case of 2008 by the Rajasthan High Court. On May 13, 2008,
within a span of just half an hour, as many as nine bombs were exploded in the
old, walled city of Jaipur. It was a diabolical attack with bombs that used RDX.
The first bomb exploded at 7:15 pm at the Johri Bazaar, the iconic and busiest
market of the city. The location was chosen to spread maximum panic and
channel the fleeing people to nearby, narrow lanes and more crowded places,
where they were caught in the blasts of other bombs. These bombs exploded at
the Hanuman Mandir, Hawa Mahal, Badi Chaupad, Chhoti Chaupad, Manak
Chowk, Tripolia Bazar, Chandpole and a police station. Being a Tuesday, the
Hanuman Mandir was anyway chock full of devotees and the timing of the
explosions was made to coincide with the evening Aarti when the crowd would
be maximum. A live bomb was also found on a bicycle near a shop in front of
the Chandpole Ramchandraji temple where it was defused. All this makes it
clear that Hindus were the targets.
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A day after the blasts, the terror outfit Indian Mujahideen, sent an email to a
media house, claiming responsibility for the attack. In the email, they had
attached a video of a bicycle laden with explosives. Police maintained that the
serial number of the bicycle matched one of those used in the blast.

In a shocker, on March 29, the Rajasthan High Court, finding fault with the
investigation, acquitted the four men (Mohammed Sarvar Azmi, Mohammed
Saif, Saifurrehman Ansari and Mohammed Salman) who had been sentenced to
death by the trial court in 2019. These four men, hailing from Azamgarh in UP,
had been arrested over a period of two years during December 2008-December
2010. Three more accused, Yasin Bhatkal, Asadullah Akhtar, and Aariz, are
currently in Tihar Jail, facing trial in other blast cases, whereas two others
accused were killed in the Batla House encounter in Delhi in September 2008.

To any person who is not dumb or utterly insensitive, it should not be difficult
to imagine the terrible frustration of the victim families, and how dejected, how
cheated they must be feeling by this acquittal. In that brutal attack as many as
71 people had been killed and 185 injured. It was a most traumatic experience
for the hitherto peaceful city as its healthcare system croaked under the sudden
impact of the casualties. Hospitals ran out of blood and blood had to be airlifted
from as far as Jodhpur. More than 250 families were shattered and the lives of a
thousand persons were destroyed.

Today, you talk to anybody in Jaipur in the streets, bus stands, railway
platforms, markets, tea stalls and in innumerable Whatsapp groups, only one cry
is resonating—that it would have been infinitely better had the police killed
these people in an encounter instead of arresting them and getting bogged down
in a process that took 15 years, and yet failed to give justice to the families of
the victims. They also say that, had there been someone like Yogi Adityanath as
chief minister in Rajasthan, the encounter would indeed have been done.

Truth Is What Is Proved To Be Truth in the Court

Like it or not, that is how the Indian criminal justice system works. It means
that a so-called fake encounter will be regarded as fake only if the police story
falls apart in the court—otherwise not.

If the police version is palpably absurd, no Court or Commission of Inquiry

(CoI) is likely to believe it. In December 2019, a young veterinarian was
subjected to gang-rape and murder in Hyderabad—the case came to be known
as the ‘Disha’ gang rape-cum-murder case. The accused were arrested promptly.
A few days later, on the pretext of recreating the crime scene, they were taken
to the same place where they had committed the crime. Then, on the usual but
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unbelievable pretext that the accused had tried to escape amidst the presence of
scores of armed cops around, all the four of them were shot dead.

The CoI appointed by the Supreme Court, and headed by Justice V. S.

Sirpurkar, determined the encounter to be fake and recommended murder
charge against 10 police officials. Why—because the police version was so
utterly unbelievable. The CoI trashed the cops’ claim that the accused, who had
no prior experience with guns, snatched police weapons by throwing mud in
their eyes and opened fire while running away. It also pointed out that no bullets
or spent cartridges were found from the site. In fact, more holes could be picked
in the police story. For example, why they had not placed some restraints on the
accused? And, how careless they could get that someone could try snatching
their weapons? Why had they not secured their weapons with lanyards?

On the other hand, if the police have made their version ironclad, and if the
court cannot pick any holes in it, it would become the truth. For example, the
police version must satisfactorily explain and be consistent with the issues of
range at which they engaged the criminals; the range of the weapon(s) with the
criminals; the number of rounds with them; the issue of line of sight and line of
fire; bullet marks on police vehicles or injuries to the cops and whether they are
consistent with the weaponry of the criminals; and how the criminal reached
that place, so that everything dovetails with the claims.

I will illustrate it with a hypothetical example. Suppose, the police are claiming
that, in a terrorism-infested area, a post of the security forces was fired upon by
the terrorists and in return fire by the sentry, some terrorists were killed. If, the
police have produced bullet marks on the sentry’s morcha (sentry box) that are
consistent with the weapons shown recovered from the terrorists and the
locations from where they were firing, it will be ‘proved’ that the sentry was
fired upon and he was justified in returning fire in self-defence. If the police
claim that they threw grenades and if the splinter marks on the sentry box are
consistent with that, the sentry would be justified in firing. If the positions of the
dead bodies of the terrorists is consistent with the line of fire available to them
and the sentry (that is, no obstacle in the path of their bullets), it will be
‘proved’ that they were hit by his bullets. If the bullet wounds on their bodies
are consistent with the weapon of the sentry, the police version will get
additional support. Finally, if the police have shown recovery of weapons from
the terrorists and empty cartridges corresponding to those weapons, the claim
would be sealed.
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Let Us Be Realistic In Dealing with a Complex Problem

I am aware of the fact that the difference between a nation state and a criminal
is that the State must necessarily ride a higher moral horse. However, it does not
mean that the criminals can be allowed to hold the nation state to ransom. We
cannot close our eyes to the fact that the judicial process is slow and that it is
difficult to secure convictions against criminals who can ‘silence’ witnesses.
This breeds a tremendous amount of frustration in the hearts of the very people
in the name of whom the nation state is created and which further creates laws
for itself. The nation state exists for the people; not the other way round. If the
laws are not satisfactory, they must be changed.

Let us not close our eyes to reality by burying our heads in the sands of
unrealistic idealism of the pseudo-liberals. Theoretically, it could be argued that
criminals should be Tasered or shot with pellets, etc. so as to keep them alive
for prosecution. However, you must know that the American police have been
using Tasers since decades and yet they are obliged to shoot to kill. In the
February killing of Tyre Nichols in Memphis, Taser was used on him but he
managed to dodge it.

Moreover, when you find that there are such dangerous criminals who could
continue their criminal activities even when inside jail; when you find that they
wield such clout that they are yet to be convicted in a single case in spite of a
battery of cases against them; when they are so dangerous that they get killed
even those who dare to depose against them, what hope can citizens have from
the ‘normal police procedures’ and the meandering criminal justice system to
deal with them?

I do agree that when you grant discretion to the police or the State, there is
always an element of subjectivity built in and it can be abused. Given the record
of the Indian police and its colonial legacy, the possibility of abuse is very much
real. At the same time, we cannot allow the faith, the trust people repose in the
State as their ‘protector’ to be eroded. That faith is the basis for the stability of
the nation state and if it starts eroding, we would be writing the sure recipe for
anarchy. That faith cannot be maintained by a system, in which getting justice
in the normal course takes years and often people condemned to death also are
acquitted on appeal.

From the point of view of analysing this as a social phenomenon, we must

attach importance to the fact that the Disha case encounter was welcomed
widely. In fact, people raised slogans in support of the police and showered
flower petals on them. Neither the police nor the public had any desire to see
them punished by the law of the land.
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Similarly, in the Jaipur acquittals, we cannot dismiss the people’s burning desire
for encounter merely as fulminations of people frustrated by the system or their
bloodlust. No, they know that the out-dated colonial criminal justice system has
failed and it cannot deliver justice to the satisfaction of the people. Who in the
world would not be frustrated by the fact that there were bomb blasts mocking
the might of the State which inflicted as many as 256 casualties and not a single
person gets punished for that even after 15 long years. How are the people
supposed to keep their faith in the system?

The British had imposed an unnecessarily complicated criminal justice system

upon us because, their main concern, at that time, was to discredit the traditional
systems of dispensation of justice prevalent in the country. Our traditional
systems dispensed justice quickly and for thousands of years people were happy
with that. There was not a single person who had gone and submitted an appeal
before Macaulay et al that he and his ancestors had been groaning under the
weight of the whimsical criminal justice system of the country for thousands of
years and the gora sahib was requested to provide him a better system.

In any case, the British were not clairvoyants. Back in 1861, there was no way
they could have foreseen what the country and the society would be a century
and more thereafter. Obviously, the criminal justice system which they devised
and imposed upon us is not able to meet the challenges thrown by crime and
criminals of the modern era. Continuing with the ‘unfit and unnatural system’
imposed upon us by the British is responsible for making the delivery of justice
costly, time consuming and absolutely uncertain, which shakes the faith of the
people in getting justice. On the other hand, no one can argue that police must
be given a license for extrajudicial executions.

The point being made is that at least in this country, with our out-dated criminal
justice system, we are facing a very complex situation. Liberals’ summary
condemnation of every police encounter is patently unfair. After all, the police
have a right to shoot in private defence of self or others—this right has been
given to them by the law and the Supreme Court judgment in the case of
Darshan Singh (2010) provides the guidelines. Otherwise, why does the society
give lethal weapons to the police? They are not merely for show. On the other
hand, justification of every encounter by over-enthusiastic cops is also bad.

There is yet another issue, which is often overlooked. Even as the Supreme
Court has framed guidelines for encounters in the PUCL case (2014), it will be
difficult for the police to continue functioning if every encounter were to be
subjected to both public and judicial scrutiny. They work under extremely
difficult circumstances and adverse working conditions and it cannot be said
that they do encounters by way of contract killing.
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The country cannot be governed by knee-jerk reactions in either direction.

Moreover, for such a complex problem, there cannot be simple, cut-and-dried
solutions either. There is something called maturity. That is what we need from
people, media and the courts. A mature State, its courts and people do not
require everything in black and white to function properly.