The killing of gangster Vikas Dubey by the Uttar Pradesh Police has put the spotlight back on encounters or executive killings. The Supreme Court and the National Human Rights Commission (NHRC) have framed guidelines that are to be followed in cases of custodial deaths.
In 1993, the Commission had issued general guidelines that every case of custodial death must be intimated to it within 24 hours. If death is prime facie found to be a case of death that took place unlawfully, the NHRC would grant compensation to the victim’s kin and penalize the errant state and its officials.
A FIR is to be registered under Section 302 of the Indian Penal Code (IPC) which penalises culpable homicide. The Indian Evidence Act puts the burden of proof on the defence — the police in this case — to prove that the offence was not committed.
Interventions by courts:
In 2009, in the case of ‘Andhra Pradesh Civil Liberties Committee v. Government of Andhra Pradesh’, the Andhra Pradesh High Court made it mandatory to charge policemen with culpable homicide in every case of encounter killing.
In 2014, in the case of ‘People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors’, the Supreme Court decided that –every custodial death would be probed by a magistrate as per Section 170 of the CrPC. Investigation shall be conducted by the CID or police team of another police station under the supervision of a senior officer.
Interventions by courts Are
There have been two landmark interventions by courts in the issue of encounter killings. In 2009, a five-judge Bench of the Andhra Pradesh High Court recognised in the case of ‘Andhra Pradesh Civil Liberties Committee v. Government of Andhra Pradesh’ that illegal killings by policemen have been taking place with impunity.
The High Court made it mandatory to charge policemen with culpable homicide in every case of encounter killing. However, the verdict was immediately stayed by the Supreme Court when the AP government moved in appeal, and was eventually upheld in 2019.
While the appeal against the AP High Court verdict was pending, the Supreme Court heard another case, ‘People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors’. The verdict in the public interest litigation, which was decided in 2014 by then Chief Justice of India R M Lodha and Justice Rohinton Fali Nariman, mandated that every custodial death would be probed by a magistrate as per Section 170 of the CrPC.
The court also issued several guidelines on holding an independent investigation into the encounter. The court said that the investigation shall be conducted by the CID or police team of another police station under the supervision of a senior officer at least a level above the head of the police party engaged in the encounter.
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Forensic experts inspect the encounter site where gangster Vikas Dubey was killed when he allegedly tried to escape from the spot following an accident, near Kanpur, Friday morning, July 10, 2020. (PTI Photo)
Lacunae in implementation Despite the guidelines that are the law of the land, encounter killings continue. Human rights activists have highlighted several lacunae in the process of an investigation into such cases. The significant issue is that the process — from initiating the case to investigating it — is done by the police, who are the accused to begin with.Political patronage to such incidents also adds to the lack of proper investigation. The Uttar Pradesh government listed the number of encounters as one of its “achievements” that the common man should be made aware of on Republic Day last year.
Encounters are justified?
Low conviction rate, tardy probes and prolonged trials result in 70 per cent rape cases remaining unattended in the judicial system and this, experts say, explains the public jubilation over the encounter killings of all four accused in the rape-and-murder of a Hyderabad veterinarian.
People applauding the police action shows a loss of faith in the existing systems, they said.