Recent killing of Vikas Dubey by the Uttar Pradesh Police in an encounter has brought back the focus on extra-judicial killings and issues associated. The government has formed a one-member judicial commission to probe this saga. The commission is headed by justice (retd) Shashi Kant.
Laws Dealing with Encounters:
At the outset, there is no provision in the Indian law which directly authorizes an official to encounter a criminal irrespective of the grievousness of the crime committed by him/her.
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- However, there are some enabling provisions that may be construed so as to vest officials with the power to deal with criminals including the power to use force against a criminal.
- Section 100 of the Indian Penal Code, 1860:
It authorizes any person to exercise his right of private defense which may extend to causing death if there is reasonable apprehension in the mind of the person that there exists a threat to life or limb.
It permits a police officer to use all means necessary to effect the arrest of the person.
It provides that culpable homicide is not murder if the offender, being a public servant acting for the advancement of public justice exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the discharge of his duty and without ill-will towards the person whose death is caused.
View of the Supreme Court:
The Apex Court has held in:
- Om Prakash v. State of Jharkhand that “it is not the duty of the police to kill the accused merely because he is a criminal.” It was further stated that ‘encounters’ amounted to “state sponsored terrorism.”
- Sathyavani Ponrai v. Samuel Raj that a fair investigation is mandatory under Articles 14, 21 and 39 of the Constitution of India and that it is not only a constitutional right but a natural right as well.
- Nirmal Singh Kahlon v. State of Punjab that the right to investigation and fair trial is applicable to both, the accused and the victim under Article 21 of the Constitution of India.
- Prakash Kadam v. Ramprasad Vishwanath Gupta that a fake encounter by a police official falls under the category of ‘rarest of rare case’ as laid down in Bachan Singh v. State of Punjab and therefore, the death penalty would be attracted to the concerned police official.
- Public Union for Civil Liberties v. Union of India that not even State can violate the right to life and obligation to follow the procedure established by law under Article 21 of the Indian Constitution. The Court opined that encounter killings by the police must be investigated independently as it “affects the credibility of the rule of law and the administration of the criminal justice system.”
View of the National Human Rights Commission (NHRC):
NHRC has stated that under the laws of India, the police officials have no right to take away the life of another person. If by his act, the police official kills a person, he will be booked for culpable homicide unless it is proved to the contrary that such an act did not constitute an offence.
Further, in 2010, the NHRC has laid down guidelines/procedures to be followed in cases of deaths caused in police action.
Note: please go through Supreme Court and NHRC guidelines on Encounter.
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