Table of Contents
INTRODUCTION
Encounter killings have always been a huge topic for debate and there is no law in India against encounter killings, as it is yet questionable that police officers have the authority to kill someone in an encounter.
In a recent incident, the UP police killed the gangster Asad Ahmed, son of Atiq Ahmed & another accused, Ghulam, in an “encounter” in Jhansi. the focus is back on extra-judicial killings and whether the guidelines issued by courts and the National Human Rights Commission (NHRC) are being followed.
What is Encounter?
Encounter killings or Police encounters refer to situations where the police or security forces involve extrajudicial killings of individuals who are generally suspects. These are often referred to as “fake encounters” as they are mostly staged to appear as if the suspects were killed in self-defense, which is not in reality.
Data
According to the data given by the Union Home Ministry in Parliament last year, from January 2017 to January 2022, there have been 655 encounter deaths, with the maximum number of encounter deaths reported from Chhattisgarh and Uttar Pradesh, followed by other states like Assam, Jharkhand, Odisha and Maharashtra.
The standard defense offered in all police encounters is firing in self-defense or in retaliation to incoming gunshots. Under Sections 96 to 106 of the Indian Penal Code, there are certain circumstances when a death in a police encounter is not counted as an offense in India.
Atiq’s son Asad’s encounter case
Asad Ahmed was the third son of Atiq Ahmed.
Atiq Ahmed, a former gangster with more than 100 registered cases who became a politician who served as both an MP and an MLA and was closely associated with many political parties in UP, including the BJP and Samajwadi Party.
Asad had been caught on camera opening fire at Umesh Pal in Dhoomanganj in Prayagraj on February 24. The encounter occurred on a day when Atiq Ahmad and his brother Ashraf were being produced in court in Prayagraj. According to police officials, Asad was extensively involved in the crime. Asad emerged as the central figure, the “go-to -man” in the shootout.
- These people were involved in an abduction case that dates back to 2007 when Atiq and his companions were accused of kidnapping and torturing Umesh Pal, the primary witness in a murder case in which Atiq was said to be involved.
- Umesh Pal, with his bodyguards, was murdered in daylight in 2022, leading to a huge debate in the UP assembly. Atiq is also the main accused in the murder of Umesh Pal.
- According to the police officials, Asad & Ghulam was also associated with the Umesh Pal murder case. So, both of them were also wanted in the said case.
- The BJP government led by Adityanath in UP had stated that the police can perform ‘encounter killings’ whenever they like and as they see fit and will even be encouraged to do so. Due to such a statement, Atiq approached the Apex Court, fearing that he might get killed in an encounter, just like Vikas Dubey.
Are encounter killings legal in India?
No, encounter killings are not legal in India. India’s criminal law states that police officers are authorized to use force only in self-defense or in defense of others, that is when it is absolutely necessary to apprehend a suspect considered to have committed an offence. The use of force should be proportionate to the threat posed by the suspect, as proposed by IPC in many instances.
- Encounter killings are considered the extrajudicial killing of suspects without due process of law. Therefore, it violates the human right, right to life, liberty, and due process guaranteed by the Indian Constitution and international human rights law on the part of the deceased accused or criminal.
- Supreme Court’s involvement which has taken a strong stance against encounter killings, calling them “extra-judicial executions” & urging the government to take strict action to ensure that police officers committing such an act must be held accountable.
- The Supreme Court also issued certain guidelines to prevent encounter killings, such as all encounters being investigated by an independent agency and the officers involved in encounters being suspended pending any investigation.
- Read this very carefully; whenever a police officer is charged with encounter killings, culpable homicide section 299 of IPC.
- In such a case, the burden of proof falls on the prosecution, which must show that the officers acted negligently in causing the death of the suspect. However, holding police officers accountable for encounter killings is challenging in India due to the protection given to them out of political interests & tampering with evidence.
SC GUIDELINES AND STEPS THAT FOLLOW
1. Any intelligence or tip-off regarding criminal movements should be recorded in the Case Diary or in some electronic form.
2. An FIR must be registered in case of an encounter death.
3. An independent investigation into the encounter should be conducted by the CID or police team of another police station.
4. A magisterial inquiry under Section 176 must invariably be held in all cases of death that occur in the course of police firing.
5. Information about the incident must be sent to the NHRC or the State Human Rights Commission, as the case may be.
6. The injured criminal/ victim should be provided medical aid and his/ her statement recorded by the magistrate or medical officer.
7. Ensure no delay in sending FIR, diary entries, panchanamas, sketches, etc, to the concerned court.
8. An investigation report should be sent to the competent court under Section 173.
9. In the event of death, the next of kin of the alleged criminal/ victim must be informed at the earliest.
10. Six-monthly statements of all cases where deaths have occurred in police firing must be sent to the NHRC by state DGPs.
11. If death occurs by the use of a firearm amounting to an offence under the IPC, disciplinary action must be promptly initiated and the police personnel is placed under suspension.
12. Compensation to be granted to the dependents of the victim who suffered death in a police encounter.
13. The police officer(s) must surrender his/ her weapons for forensic and ballistic analysis.
14. Information about the incident must also be sent to the police officer’s family and the services of a lawyer/counseling must be provided.
15. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence.
16. If the family of a victim finds that the above procedure has not been followed, it may make a complaint to the Sessions Judge.
NATIONAL HUMAN RIGHTS COMMISSION GUIDELINES
According to the 1997 guidelines of the NHRC, all states and Union territories must follow the following guidelines:
- The police station in charge must appropriately register information about death in an encounter as soon as they come to know about it.
- Immediate steps should be taken to investigate the facts and circumstances leading to the death of the accused.
- Since the police themselves are involved in the encounter, the cases must be investigated by an independent agency, such as the state CID.
- The investigation should be completed within four months. If the investigation results in prosecution, steps for a speedy trial must be taken.
- Issues of granting compensation to the dependents of the deceased may be considered in cases ending in conviction.
- An FIR must be registered under appropriate sections of the IPC when a complaint is filed against the police regarding a cognizable case of culpable homicide.
- A magisterial enquiry must be conducted in all cases of deaths due to police action, preferably within three months.
- All cases of deaths due to police action must be reported to the NHRC by the Senior Superintendent of Police/Superintendent of Police of the district within 48 hours of the occurrence of death.
- A second report must be submitted to the NHRC within three months, providing information regarding the post-mortem report, inquest report, findings of the magisterial inquiry, and inquiry by senior police officers.
Special Cases
Vikas Dubey Encounter Case
Vikas Dubey was a history-sheeter & a criminal turned politician who was killed in an encounter in 2020 when a police vehicle carrying him from Ujjain to Kanpur met with an accident and he tried to escape. Later, the UP government constituted a one-member commission to probe encounters headed by retired Allahabad HC judge Shashi Kant Agarwal.
Batla House Encounter
In 2008, Delhi Police conducted an operation in the Batla House neighborhood of Delhi, stating that they were targeting terrorists engaged in the 2008 Delhi bombings. Two suspected terrorists, Atif Amin & Mohammad Sajid were killed in the encounter. But the encounter was immensely criticized on the basis of it being staged.
Stanzin Nyontsang Encounter
In 2020, a video went viral showing the Indian Army killing Stanzin Nyontsang, a civilian in Ladakh. The army claimed that Nyontsang was a spy who was killed in self-defense, but the video called for an investigation.