Bhopal Encounter and its Legality
Recent Bhopal encounter in which 8 SIMI terrorist been shot dead, has raised many eyebrows within the country. Some are raising the question over legality of Bhopal encounter—terming it as a fake encounter, some are crying for human right.
Recent Bhopal encounter in which 8 SIMI terrorist been shot dead, has raised many eyebrows within the country. Some are raising the question over legality of Bhopal encounter—terming it as a fake encounter, some are crying for human right. There are many climax version of this escaping story.
However if we go with the eyewitnesses account, this instance at prima facie seems these men after killing the police personnel tried to escape and in between they were killed by police.
According to state government the Bhopal encounter was inevitable and congratulated the entire state police department.
The NHRC (National Human Rights Commission) has sent the notices to all the higher administrative authorities in state by taking the suo motu cognizance and asked the detailed report.
What is encounter?
An encounter is a euphemism to depict extra judicial killings in which police or the military are included. Fundamentally, encounters were uncommon, they were utilized as a methods conceived to manage complex circumstances and as a method for self-preservation.
Its frequent use in 90's era has created grave questions with respect to the legitimacy and reason or expectation behind the encounters. In the 1990s and the mid-2000s, the Mumbai Police in India utilized encounter killings as a weapon tool to injure the underworld in the city and widespread blackmail rackets.
Cops, who were known as "Encounter Specialists", trusted that these killings conveyed speedy justice.
What is fake encounter?
A "fake or an organized encounter" happens when the police or the military murder the suspects when they are in custody or unarmed, and the police guarantee that they needed to shoot in self-protection.
In such cases, the police may plant weapons and different proofs close to the dead body to give legitimization to the killing.
Bhopal encounter- Fake or Real?
If we go by the statements coming from state authorities, it seems pretty much a real encounter. The 8 SIMI activists not only escaped the prison but also killed one police personnel by cutting his throat.
From the eyewitness account, these fugitives threatened to shoot the people when surrounded by police. In retaliation from the police force they all shot dead.
However, we need to see if there was any remote chance to catch them alive rather than shooting them, how did they manage to escape from prison, who is accountable?
These are the questions subject to investigation.
Supreme Court on encounters:
- RS Lodhi Vs State of UP (1992): The court said whether the loss of lives was on account of a genuine or a fake encounter is a matter that needs to be enquired.
- Prakash Kadam Vs Ramprasad Vishwanath Gupta (2011): The court recommends death penalty for police officers found guilty of fake encounters. The court also observe that ‘Fake encounters are cold blooded murder’ and not expected from the police personnel who are suppose to uphold the law.
- Om Prakash Vs Jharkhand (2012): The court said that policemen cannot be prosecuted unless there is an evidence against them.
- BG Verghese Vs UOI (2013): 21 police encounter killing between 2003-06 in the state of Gujarat. The Court directed that a probe be initiated into the encounters till truths comes to light in each case.
- PUCL Vs Maharashtra (2014): The Supreme Court framed guidelines in case of police encounter death, including mandatory investigation.
However this extra judicial killing has evoked strong reaction from the society. Various social activists, human right activists have strongly objected to this encounter and asked for thorough investigation.
They argued that such encounters are nothing but a cold blooded murder in violation of fundamental right conferred by Article-21 of Indian constitution which gives its citizen a ‘Right to life’. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.
In PUCL Vs Maharashtra- 2014 case, the Supreme Court issued sixteen guidelines in the matter to investigate the police encounter for effective and independent investigation:
1. Whenever the respondents-police are on the receipt of intelligence or a tip off about the criminal movements and activities pertaining to the commission of grave crimes, it shall be entered into a case diary. If the receiving authority is the police officer of a particular police station, the relevant entry has to be made in the General diary and if the receiving authority is the higher police officer, the relevant entry to the said effect has to be made by a separate diary kept and provided therefor and then pursue further in accordance with the procedural law.
2. Regarding any encounter operation is over and persons are killed or injured and the same is reported to either orally or writing to the police in furtherance of Section 154 of the Criminal Procedure Code, it shall be registered in Crime Register of that particular police station and that further the said First Information Report along with copies to the higher officials and the Court in original shall be sent with immediately without any delay whatsoever through proper channel so as to reach to the Court without any delay at all. A report, as enjoined under Section 157(1) of the Criminal Procedure Code, shall also be followed necessarily by the concerned police station.
3. After setting the law in motion by registering the First Information Report in the Crime Register by the concerned police officer of the particular police station, the investigating staff of the police shall take such steps by deputing the man or men to get the scene of crime guarded so as to avoid or obliterate or disfigure the existing physical features of the scene of occurrence or the operation encounter. This guarding of the scene of occurrence shall continue till the inspection of occurrence takes place by the investigating staff of the police and preparation of spot panchnama and the recovery panchnama.
4. The police officer who takes part in the operation encounter or the investigating officer of the concerned police station, shall take all necessary efforts and arrangements to preserve finger prints of the criminals or the dreaded gangster of the weapons who handled immediately after the said criminal was brought down to the ground and incapacitated and that the said fingerprints.
5. The materials which are found on the scene of occurrence or the operation encounter and such of the materials including the blood stained earth and blood stained materials and the sample earth and other moveable physical features, shall also be recovered by the investigating staff under the cover of recovery panchnama attested by the independent witnesses.
6. To fix the exact date and actual place of occurrence in which operation encounter has taken place, a rough sketch regarding the topography of the existing physical features of the said place shall be drawn by the police or the investigating staff of the police either by themselves or by the help of the staff of the Survey Department even during the spot panchnama is prepared.
7. The inquest examination shall be conducted by the investigating staff of the police on the spot itself without any delay and the inquest panchnama shall be sent along with the above case record prepared along with the First Information Report without any delay whatsoever to the Court.
8. If the injured criminals during the operation encounter are found alive, not only that they should be provided medical aid immediately but also arrangements and attempts shall be taken by the police to record their statements under Section 164 of the Criminal Procedure Code either by a Magistrate.
9. After the examination of further witnesses and completing the investigation inclusive of securing the accused or accused persons, the concerned police is directed to send final report to the Court of competent jurisdiction as required under Section 173 of the Criminal Procedure Code for further proceeding.
10. Either in sending the First Information Report or sending with the general diary entry referred in the guideline nos. 1 and 2, the concerned police shall avoid any iota of delay under any circumstances whatsoever so also rough sketch showing the topography of the scene and the recovery of the materials and the blood stained materials with the sample earth and the blood stained earth with the other documents viz, the spot panchnama, recovery panchnama - all seems very vital documents - the respondents-police are also directed to send them to the Court of concerned jurisdiction without any delay.
11. If it was proved that the death has occurred by use of firearm amounting to an offence under IPC, disciplinary action shall be taken against the officer.
12. As regards compensation to be granted to the dependents of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.
13. The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.
14. An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer / counselling, same must be offered.
15. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.
16. If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it might make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.
Thus, from above discourse it turns out to be obvious that police force has right to harm or execute the criminal, for the sole purpose behind self-protection or where it is inescapably fundamental for the maintenance of social order or peace. However in no way, any police personnel can be given a privilege to inflict injury or kill any individual, to settle individual revelry or with any ulterior thought process. It is the grave commitment of the state to urge police drive to discourage withdrawn components however in the meantime likewise to rebuff the killers in the cover of police.