Introduction

“If the custodians of law themselves indulge in committing crimes then no member of the society is safe and secure. If police officers that have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher.”

An ideal state is the one in which each and every citizen abides by law and in which the officers of the state work tirelessly to protect and secure the rights of every individual. But it is really disheartening to see that those who were given the task of securing people’s right are the ones violating them. The recent incidents of ‘Hyderabad Encounter Case’, ‘Vikas Dubey Encounter Case’ and Custodial Death of P.Jeyaraj and Bennix signify that the police have been playing roles of both investigators and judges by delivering instant justice which must be ceased otherwise soon, India would start being recognized as the ultimate violator of rule of law.  The authors through this article desire to throw light on how the provisions embedded for the protection of accused and convicts are being flouted by the law enforcement agencies and will subsequently present some suggestions to curtail the same.

Encounter Killings: Analyzing the Related Law

According to the report of NHRC, an encounter takes place every second day in India. NHRC registered 2,955 encounter death complaints between 1 April 1998 and 31 March 2018.  At present, there is no law as such that gives police the authority to encounter an alleged criminal. However, there are some provisions in the Indian laws that guide the police officials to deal with such alleged criminals. Sections 96 and 100 of IPC, 1860 provides for the provisions related to the right to private defence. Section 96 nullifies any act leading to the offence if it is done in self-defence whereas, as per Section 100 any person while exercising his/her right to private defence can cause death if there exists a reasonable apprehension in the person’s mind that the other person creates a threat to his/her life. But the provision from where the police officers derive the authority to use exceptional power while making an arrest of a person is Section 46 of CrPC, 1973. Moreover, the police take shelter under Exception 3 of Section 300 of IPC, 1860. It immunizes the public official from any criminal charge if the death of accused/suspect/under-trial is caused while discharging the duty in good faith and also the act of police was necessary for the discharge of its duty. This law authorizes limitless use of the power to the public officer i.e. beyond what has been prescribed by law. But the judiciary has taken the other road in some of its landmark decisions. In Om Prakash & Ors. v. State of Jharkhand, the court observed, the police is obligated to arrest the accused and put them on trial as per the law instead of killing them in an encounter, this act of police amounts to state-sponsored terrorism.

In Prakash Kadam v. Ramprasad Vishwanath Gupta the court held that fake encounters are nothing but cold-blooded murders by the officials which should be considered as rarest of the rare case to give death sentence if a conviction is done in such cases.

The Supreme Court in case of PUCL &Anr. v. State of Maharashtra &Ors has laid down guidelines that have to be followed in the cases where the life of accused has been lost due to police encounter. But even now the condition has not become any better, a total of 179 cases have been registered from 2015-2017, out of which 65 have been disposed-off. The main fear that lies here is that most of the cases go unnoticed due to faulty provisions of law. The guideline issued by SC provides for “registration of an FIR in the cases of encounter deaths” instead to “register an FIR against the police official”, who was part of the encounter. Due to this lacunae, the police registers an FIR against the dead person, alleging that he attempted to murder the police officials which again exonerates the police official as the death of accused leaves a weak defence against police officials. It is only in the rarest of the rare cases where justice has been served in fake encounter cases, recently CBI after a prolonged period of 35 years has ordered life imprisonment for 11 policemen who were involved in the murder of Raja Man Singh encounter case. Moreover, the NHRC has stated that it considers the practice of fake encounters to be “unconscionable”.

Custodial Death: Scrutinizing the Related Law

According to the report of National Campaign against Torture, in 2019, 1,731 people died in the custody of which 1,606 people were in judicial custody and rest were in police custody.

The provisions of Section 25 and 26 of the Evidence Act states that a confession made in police custody is not admissible but the makers of law did not want to render the police powerless, hence Section 27 was inserted as an exception to Section 26 of Indian Evidence Act 1973. According to this exception, the recoveries by police which are in nature of incriminating evidence and which do not emphasise on the role played by accused in the offence can be admitted as evidence. Mental facts are not included in the word ‘fact’ used in section 27 of the Act [State (NCT of Delhi) v. Navjot Sandhu]. Hence the police cannot dilute the protection given to the accused by using extra-legal ways under Section 27 to extract the confession. (PulukuriKottayya v. King Emperor)

Further, the scope of Section 197(1) of Code of Criminal Procedure (CrPC) is restricted to a reasonable and not a pretended or fanciful claim regarding the act being done in discharge of official duty. Still, the procedural safeguards provided in Section 197 are often misused by the police by not allowing the lodging of First Information Reports (FIR) in cases of custodial deaths, violence and torture even though filing of FIR is mandatory in cases of custodial deaths or violence(Lalitakumarivs State of UP).

According to the data available with the National Crime Records Bureau, between the years 2000 and 2016 around 1,022 custodial deaths have been reported out of which FIRs were filed only in 428 cases. In all these cases only 24 policemen were convicted on the charge of custodial death. What is significant about these types of cases is that the accused or convicts are hand in glove with the police officers with no witness to their safeguard since the police station is not a public place and the police is the sole evidence holder (State of U.P. v. Ram SagarYadav). Though in many cases of similar kind the investigation is handed over to investigation agencies but till that time the evidences have already been manipulated.

To overcome the above-stated problem the lawmakers came up with a process of parallel Magisterial Inquiry under Section 176(1) and 176 (1A)of CrPC, which empowers the Magistrate to hold inquiry along with the inquest for custodial killings, disappearance or rape. Section 176(5) mandates that the Magistrate must forward the body within 24 hours of the death of a person for examination by the nearest Civil Surgeon. Section 167(2), proviso (b) of CrPC insists on physical examination of accused by the magistrate at the first instance. But the custodial killings of Jeyaraj and Bennix have thrown light on how these provisions were flouted, where magistrate sent the accused in Police remand without examining them.

Conclusion and Suggestions

Prisoners as well as accused are also entitled to the basic fundamental right provided under Article 14, 19 and 21 as well as Article 20(3) of the Indian Constitution. Moreover, they are granted protection under several international conventions like the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Though India is a signatory to both conventions there is a growing need to implement the provision contained therein for better governance.

The protector of law who become predator must be given harsh punishment for the well-being of society. (CBI v. Kishore Singh). Though guidelines have been formulated to curtail the cases of encounter deaths and custodial violence, the safeguards of law have massive disdain for the guidelines. Hence stringency in implementation of the law is the panacea for all the arbitrary act of police against the accused.

In cases of encounter killings, an FIR should be registered against the police officers involved in the encounter and not against the dead person so that the case does not get un-noticed and the officials do not get a chance to get exonerated. The Prevention of Torture Bill, 2017 has lapsed two times since its advent, must be reintroduced.  According to the draft Prevention of Torture Bill, 2017 every public servant who indulges in an act which causes on another person: (i) grievous hurt, (ii) danger to life, limb, or health, (iii) severe physical or mental pain, or (iv) death for the purpose of acquiring information or punishment, shall be liable under Section 330 and Section 331of the IPC with the punishment of up to 10 years or life imprisonment in addition to fine and shall not be restricted to Section 320 of the IPC which has become a privilege for perpetrators of law. This bill is very crucial for India to ratify the “UN Convention against Torture” which it signed way back in 1997.

The officials have to understand the thick line of demarcation between the plot of fictional TV series, movies and practical life scenarios. Accused dying through encounters and in custody not only defeats provisions such as ‘rule of law’ but they shook the belief of the entire community on the judicial system. The court of law exists for a purpose and such dreaded actions of police make their existence worthless.

ABOUT THE AUTHOR

Rishank Tiwari

Rishank is a fourth-year law student pursuing B.A. LLB (Hons.) at National Law University Odisha. The author can be reached at his LinkedIn Profile.

Sahiba Vyas

Sahiba is a fourth-year law student pursuing B.A. LLB (Hons.) at National Law University Odisha. The author can be reached at her LinkedIn Profile.