• Milind Saraswat

SHOULD A PERSON NEVER SURRENDER: EXTRA JUDICIAL KILLINGS

Updated: Aug 12

India is the world's largest democracy. The structure of our economy is bifurcated into 3 pillars commonly known as legislative, executive and judiciary. Being a dynamic economy, it undergoes various economic and social changes in order to protect and safeguard the citizens. Judiciary is the key administrator to all major legal alterations that take place for improvement and enhancement of laws. Talking in terms of criminal and illegal Conspiracies, India is highly well known. Crime rates in India are rapidly increasing and corresponding to them, many laws and amendments are enacted. But you can say the failure of our police officials in arresting the criminals results their the liberal movement across the country leading to increase in criminal activities. To overcome such situation, police tries an alternative commonly known as encounters or extra judicial killings for easy and fast justice to the society.

In the recent case of Vikas Dubey, a vicious gangster from Kanpur district was encountered on a Highway from Jhansi to Kanpur. He was accused of 8 murders of police officials and 62 precedent cases filed against him. He was in the custody of the special task forces which later proclaimed that "Vikas Singh was encountered when he tried to flee after the car accident". The report exhibits that in order to protect the car from Collision with a herd of cattle and because of wet floor the car overturned and somehow Vikas tried to escape, later shot dead.

Now the question arises whether this act was deliberate or unpredictable? News channels were flooded with the common news all day asking questions against his encounter. Some of the queries against UP police were - why was Vikas Dubey's car switched after toll crossing? Why was a vicious gangster not handcuffed? Why was media,who were following the convoy stopped 2 km from the site where incident took place? Also how a escaping criminal was shot on chest? And the list goes on. With all these questions it is quite clear that it was a deliberate step by the task force.

The concept of extra judicial encounters has flourished from years, petty criminals were shot dead in order to provide easy justice to society. But undermining the fact, officials don't realize that every individual is protected under Article 21 (Protection of Personal Life and Liberty)It is the basic human right and even criminals are entitled to such rights and can avail remedy in case their rights are violated. No authority has a power to violate this right. Also, there is no particular law enactment for legality of encounters. However section 96 - section 106 of Indian Penal Code talks about the right of private defense.

The provision states that, “nothing is an offence which is done in the exercise of the right of private defense ”Whereas IPC Section 100 enumerates the situations in which the right to private defense of the body extends to causing death namely, first where an assault is such as may reasonably cause apprehension that death will otherwise be the consequence of such assault. Secondly such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Hence, in cases where there exists reasonable apprehension in mind of police officer hat there exists threat to life or limb, they are justified in exercising right of self defense which may also extend to causing death.

The sanction of encounter is entitled in some provision of criminal procedure code in section 46 (1) …(2)If such person forcibly resists the endeavor to arrest him , or attempts to evade the arrest such police officer or other person may use all means necessary to effect the arrest .(3)Nothing in this section gives a right to cause a death of a person who is not accused of an offence punishable with death or with imprisonment for life “. It is evident from the language of the section that law permits to use all means necessary to effect arrest of the person however imposes an inherent limitations on this right, with respect to minor offences not punishable with death or life imprisonment. If widely construed, the section is capable of giving police the powers, which can be arbitrarily used or misused by the police. It is left to the discretion of the police officer to decide as to which means are necessary to effect the arrest of the person, which in case can include use of firearms.

Also, Supreme Court of India issued guidelines on 23rd September 2014 under Chief Justice RM LODHA & Justice NARIMAN, making mandatory for magistrate to investigate the encounter death and check whether it was done under full efficiency and independence or not. There were 16 set of guidelines introduced which acted as an obligation to follow while investigation of such cases.

In Vandana Vikas Waghmare v. State of Maharashtra Bombay High Court held that, it is the responsibility of the police concerned to take adequate and appropriate steps to book the gangsters under the law. The duty of police organization has become onerous and accountable and one should refrain from demoralizing the police force and to dissuade them from doing their duty would be against public interest.

Similarly, in PUCL v. UOI Supreme Court said that,

Under certain conditions, certain additional and unusual powers have to be given to the police to deal with terrorism. It may be necessary to fight terrorism with a strong hand, which may involve vesting of good amount of discretion in the police officers or other paramilitary forces engaged in fighting them. If the version of the police with respect to the incident in question were true there could have been no question of any interference by Court. Nobody can say that the police should wait till they are shot at. It is for the force on the spot to decide when to act, how to act and where to act. It is not for the Court to say how the criminals should be fought. One cannot be blind to the fact that even after fifty years of our Indian independence, our territorial integrity is not fully secure. There are several types of separatist and terrorist activities in several parts of the country. They have to be subdued. Whether they should be fought politically or be death with by force is a matter of policy for the government to determine. The Courts may not be the appropriate forum to determine those questions. All this is beyond dispute. ”

Altogether it can be understood that police has right to injure of kill a person only if the question comes about right to private defense and law gives them power to explore the legality of extra judicial killings as it is unlawful.

This article doesn't sympathizes the death of Vikas Dubey but tries to exhibit the problem with our justice rendering system. If such cases of judicial killings continue, criminals will start to develop a psychology where they will think that if they are caught they will be encountered, this will spark the pessimistic side of them and lead to increase in criminal activities around the country. Also, people will tend to loose faith from our current judicial rendering system and develop a negative mindset. Hence, this problem should be highly taken care of, new laws and amendments must be enacted in order to curb the illegal conspiracies and lead to a criminal free society.

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