Private Defence and Section 46(3) CrPC- “Way to Extra-Judicial Killings”

In the previous post, we talked about Police Inaction and Dereliction of Duty on their part. The post can be viewed here:

In the present post, light has been shed upon Police Excesses and Abuse of Power in the form of Extra-Judicial Executions.

“Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know the gallows await them.[1]


The concept of justice is an ever-elusive one. What exactly does one mean when they say they want justice? In the Indian context, the concept of ‘instant justice’ has entered the discourse again post the rape and murder of a 26-year-old doctor in Hyderabad last year and in encounter of gangster Vikas Dubey recently. This ‘instant justice’, in nearly all cases, involves the extrajudicial killings (also referred to as ‘encounters’) of persons accused of various offences by the police or other armed forces without allowing the courts of law to conclusively establish their guilt or innocence.

The concepts of instant justice and police violence are not novel and have been portrayed in several Bollywood films over the years, which have been immensely popular. There are varying justifications for condoning encounters, ranging from the importance of a deterrent effect that encounters have to the burdensome mechanism of due process. Jyoti Belur notes[2] that the police’s own attitudes towards the due process are that it poses obstacles to be tackled in the ultimate quest in maintaining law and order. In addition, societal approval and adulation provide a heady stimulant for police officers to engage in such encounters. Thus, it should come as no surprise should the number of encounters in a state actually increase, given that many people have publicly showered affection on police officers involved in encounters, be them ‘genuine’ or ‘fake’.[3]

When Encounter can be said to be genuine

In determining the authenticity of an encounter, the State asserts that such encounters were spontaneous and unplanned. The State does so by arguing two grounds;

1) that the concerned armed forces or police officers killed the accused in self-defence or;

2) that they were allowed to do so procedurally (relying on provisions of procedural law, such as the CrPC (Code of Criminal Procedure), AFSPA 1958 (Armed Forces Special Power Act) etc).

Section 46 of the CrPC[4] details the manner in which an arrest is to be made. S.46(2) of the CrPC states that if the person being arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the person empowered to arrest may use necessary means to effect the arrest. Whether the means were necessary depends on whether a reasonable man, having no intention to cause serious injury to the other, would employ the same means. S.46(3) of the CrPC states thus: ‘Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.’

Reading and interpreting the sections together, it would mean that one may cause death in case the person is merely accused of an offence that is punishable with death or life imprisonment while attempting to effect arrest using necessary means.

In the Manual on Human Rights for Police Officers[5], issued by National Human Rights Commission (NHRC), it is mentioned that,

“The law says that no one including the police has an unqualified right to take the life of another person. Causing the death of a person by a police officer may amount to murder or culpable homicide not amounting to murder unless it is established that the causing of death is for justifiable reasons. If a police officer kills someone in an encounter, he/she must prove that the death was caused either in the legitimate exercise of the right of private defence or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment. This can only be ascertained by a proper investigation and not otherwise”.

The NHRC explained that the only two circumstances in which such killing would not constitute an offence:

  • “if death is caused in the exercise of the right of private defence”, and
  • (ii) under Section 46 of the CrPC, which “authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.

Why Extra-Judicial killings are problematic?

The Constitution of India has guaranteed certain rights and safeguards which the State should uphold for every citizen of sovereign India. Article 21 is the most notable provisions in the Constitution and is a part of the fundamental rights. It states that:

“No person shall be deprived of his life or personal liberty except according to procedures established by law.”[6]

In Maneka Gandhi v Union of India[7] it was held that the procedure to be established by law had to be fair, just and reasonable and could not be unfair or arbitrary. Further, in Kartar Singh v State of Punjab[8], it was held that in order for a procedure to be fair, just and reasonable, it had to conform to the principles of natural justice. One of the core principles of natural justice is audi alteram partem, or to hear the other side. It further includes two facets: 1) notice of the charge against the said person and; 2) an opportunity to explain the said charge.

In Anita Khushwaha v Pushap Sudan[9], access to justice was declared a fundamental right under A.14 and 21 of the Constitution. Moreover in Nirmal Singh Kahlon v State of Punjab[10], it was held that A.21 contemplates the right of an accused to have a fair trial, through a fair procedure and fair investigation. However, by allowing the arresting authority to cause the death of a person accused of a particular offence renders their rights under A.21 a dead letter as they are denied an opportunity to be heard by an independent adjudicatory authority. Presumption of innocence is an important concept in criminal law, however, that is defeated if such a power is given to an arresting authority.

When police play the role of judge and executioner by eliminating accused persons through staged encounters, there is no following of procedure established by law. This leads to a direct violation of Article 21 of the Constitution.

The Court’s Approach

In Om Prakash v. State of Jharkhand[11], the Supreme Court observed,

“This Court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism”.

In Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr[12], a division bench of the Supreme Court went to the extent of stating that death penalty must be awarded to policemen found guilty of committing murders in the guise of encounters. It was said that:

” 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 the 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.

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 Nuremberg 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 the gallows await them.”

In PUCL v Union of India[13], it was observed that it was for the police to deal with the alleged terrorists as per the procedure established by law when they were in receipt of the information on their location and ‘administrative liquidation’ could not be resorted to.

In Rohtash Kumar v State of Haryana[14], it was held that merely because a person is a dreaded criminal or is accused of an offence, the police officers cannot kill them in cold blood and must make all effort to arrest them. These cases further establish that the right to life is sacrosanct and cannot be denied to an accused, except as per procedure established by law which must necessarily be fair, just and reasonable. A provision allowing an arresting authority the power to cause the death of an accused without affording them an opportunity to be heard cannot be countenanced as fair, just or reasonable.


The need for encounter killings arises only because of the initial lapses by the police and dereliction of duty on their part. ‘Short-cut’ justice may give a momentary sense of relief to the public who felt outraged by the crime, but it will deflect attention from major structural issues which allow the culture of impunity and lawlessness to prevail. Police should be always held accountable to the law for their acts. Encounter killings cannot be condoned citing the heinousness of the crime. Getting obfuscated amidst the public jubilation over these killings are crucial lapses of police.

Note: For detailed understanding about the Police Reforms required in India you can read my research article on “Hour of Police Reforms” here-

[1] Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr,  (2011) 6 SCC 189.






[7] 1978 AIR 597, 1978 SCR (2) 621.

[8] (1994) 3 SCC 569.

[9] (2016) 8 SCC 509.

[10] CIVIL APPEAL NOS. 6198-6199 OF 2008,  (Arising out of SLP (C) Nos. 24777 – 24778 of 2005).

[11] (2012) 12 SCC 72

[12] (2011) 6 SCC 189.

[13] (2013) 11 SCC 525.

[14] (2013) 14 SCC 434.


Harshit Sharma


Harshit Sharma is a B.A., LL.B. (Criminal Law Hons.) graduate from National Law University, Jodhpur and an LLM (Criminal Law) from Mahatma Jyoti Rao Phoole University, Jaipur. He has qualified NTA NET (December 2019) and can be reached at

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