Encountering Criminal-Accused in India

Issues attached to the circumstances of the encounter

1. The Encounter Team
2. Real Encounter
3. Section 79 of the IPC which provided:

   Act done by a person justified, or by mistake of fact believing himself justified, by law.—Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.

    

4. Fake Encounter :

   “In cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake `encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

   26. We warn policemen that they will not be excused for committing murder in the name of `encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The `encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of `encounter’ and get away with it should know that the gallows await them.” [Prakash Kadam and others Versus Ramprasad Vishwanath Gupta and Another AIR 2011 SC 1945 ]

5. An inquiry under Section 176(1A) Code of Criminal Procedure
6. FIR was filed to cover up the murder of the deceased
7. Section 197 Cr.P.C—Sanction for prosecution
8. Criminal writ petition and a Special Investigation Team[SIT] for investigation of encounter case
9. Recording the statement of the complainant and to treat that statement as the FIR
10.  Getting bail orders from Court
11. Cancellation of Bail:

“the considerations for cancellation of bail is different from the consideration of grant of bail vide Bhagirathsinh s/o Mahipat Singh Judeja v. State of Gujarat, (1984) 1 SCC 284, Dolat Ram and Ors. v. State of Haryana, (1995) 1 SCC 349 and Ramcharan v. State of M.P. (2004) 13 SCC 617.

17. However, we are of the opinion that that is not an absolute rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same Court which granted bail is approached for canceling the bail. It will not apply when the order granting bail is appealed against before an appellate/revisional Court.

18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail”[Prakash Kadam and others Versus Ramprasad Vishwanath Gupta and Another AIR 2011 SC 1945 ]

12. Evidence for Prosecution :

• In Vijendrajit Ayodhya Prasad Goel v. State of Bombay, AIR 1953 SC 247 and S.P. Bhatnagar and Anr. v. The State of Maharashtra, AIR 1979 SC 826. This Court in the former case has observed that a statement under Section 342 of the Code of Criminal Procedure (now Section 313) cannot be regarded as evidence.

• The absence of any direct testimony as to the manner in which victims were killed, the prosecution case hinges upon the circumstantial evidence.

• In order to suppress the truth and to cover up the truth the seizure list was prepared later on as an afterthought which indicates the guilty mind of the accused persons(police).

• The distance between the parties was very close.

• The firing was made only by the accused persons(police) and not from the side of the deceased persons.

• The evasive answer which the accused police persons had given in their examination under Section 313, Cr. P. C.

13. Challenge by the Accused police persons

• The circumstances established through prosecution evidence do not unhesitatingly point out towards the guilt of the accused persons and, therefore, the conviction of the accused – appellant under Section 302/34 is unsustainable in law.

• The examination of accused [police] under Section 313, Cr. P. C. has been perfunctory and the relevant incriminating materials have not been put which has caused serious prejudice.

• There is no evidence to indicate the manner in which the three persons in the Maruti Van were killed.

As per Section 18 of the Protection of Human Rights Act, 1993, the commission is empowered to recommend compensation, damages, or interim relief to the families of the victim or complainant.

Supreme Court cases

• Noorul Huda Maqbool Ahmed Versus Ram Deo Tyagi and Others[ Decided On: 04-07-2011]
• Satyavir Singh Rathi Versus State thr. C.B.I [AIR 2011 SC 1748 ]
• Brijlala Pd. Sinha Versus State of Bihar[AIR 1998 SC 2443 ]  HELD :-From the facts narrated and discussed in the judgment and the circumstances established through the prosecution evidence we do not find any aggravating circumstances as against Dudh Nath Ram and Victor to award death sentence against them merely because they happened to be the police officers and the constables at their commands might have resorted to fire from 303 ribles at their possession. In this view of the matter, while we uphold the conviction of accused Dudh Nath Ram and Victor under Section 302/34, IPC we set aside the sentence of death awarded against them and commute the same to imprisonment for life.
• Chaitanya Kalbagh and another Versus State of U.P. and others[AIR 1989 SC 1452 ] HELD:-  We think these three writ petitions relate to matters which properly fall within the domain of the State Governments, and that in the first instance the State Governments should be petitioned. The facts mentioned in the three writ petitions call for a comprehensive review of what has been described as “encounters’, and in conditions of disturbed law and order of the magnitude reflected in these writ petitions we cannot preclude the possibility of personal feuds and enmities being settled and other motives being satisfied by recourse to the use of force under the guise of maintaining law and order. There is the imperative requirement of ensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens. We need say nothing more at this stage, for we are inclined to provide an opportunity to the petitioners to petition the State Governments concerned in the first instance for the relief sought in these writ petitions. The petitioners may make their representations within four weeks and upon such representations being made the State Governments concerned are required to dispose them of within three months thereafter. Liberty is granted to the parties to file further affidavits setting forth the fact of the filing of representations and of the nature of the response of the State Governments concerned and including such other facts as may be considered necessary for the effective disposal of these writ petitions.