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ENCOUNTER OR COLD – BLOODEN MURDER?

“Justice A.N. Mulla (Anand Narain Mulla) of the Allahabad High Court, in a judgement said, ‘I say with all sense of responsibility, there is not a single lawless group in the whole of the country whose record of crime comes anywhere near than that of the organized gang of criminals known as the Indian Police Force.” Justice Mulla’s observation was quoted here by Justice Markandey Katju, former Supreme Court Judge, for expressing his reaction against the police personnel engaged in recent Hyderabad (Telangana) police encounter of killing four accused of rape and murder on December 06, 2019, terming the killings a clear case of “fake encounter”.

A 25 year old woman of Shadnagar area in Hyderabad was brutally gang-raped and burnt on November 27, 2019. On November 29, the four accused, Jollu Shiva, Jollu Naveen, Areef and Chintakunta Chennakeshavulu were arrested. They confessed to raping, killing and immolating the victim. On December 04, the court sent the four accused to 07-day police custody. In the wee hours of December 06, all the four accused were taken by a 10 member police team to the scene of their crime at Chatanpally, for the reconstruction of events as part of the investigation into the rape and murder, where all the four accused were shot dead in an alleged exchange of fire with the police between 5.45 am and 6.15 am.

The encounter was led by Cyberabad Police Commissioner V.C. Sajjanar, who said that the accused were killed in crossfire when they snatched police weapons and tried to escape from the scene of the crime.

Sajjanar was at the helm of a similar operation in 2008. He was Warangal’s superintendent of police, when three men, S. Srinivasa Rao, B. Sanjay and P. Harish Krishna, attacked the two college girls Swapinka and Pranitha with acid on December 10, 2008. The men had thrown acid on the girls. While Swapnika died during treatment, Pranitha survived with serious burns. The incident had triggered nationwide protests. The three accused were arrested within a day of the crime. They were taken to the scene of offence to gather evidence and killed in a police encounter after they allegedly attacked the policemen. Following the encounter, Sajjanar was lauded as a ‘Hero’ and the locals felicitated him with shawls and bouquets.

Sajjanar was heading the sensitive anti-Maoist wing of the Telangana police, Greyhounds, in August , 2016, and was instrumental in the elimination of several Maoist leaders in alleged encounters.

In the current Telangana rape- murder case too, people celebrated the encounter killing of the four accused. Victim’s father commented, “My daughter’s soul at peace now.” Addressing Press Conference on December 6, 2019, V.C. Sajjanar said, “law has done its duty.”

The family members of rape victims and survivors hailed the encounter killings saying that the police has set an example of providing instant justice. Ironically, some lawmakers praised the unlawful action of the police. Jaya Bachan, four-time Member of Parliament said, “I know its little harsh but I think these kind of people need to be brought out in public and lynched.” Telangana Chief Minister Jagan Reddy said, “Hats off to KCR and Telangana police…there is nothing wrong to shoot them dead.” Another Telangana minister Talasani Srinivas Yadav said, “All over India, people are happy. I feel proud to be part of this cabinet.” A Goan minister, Michael Labo demanded public hanging of rapists. Former Uttar Pradesh (UP) chief minister Mayawati said, this was “praiseworthy” and advised UP police to take “inspiration.”

In such a scenario, the most horrible part was that the lawmakers and law enforcers themselves openly expressed their disrespect for the ‘rule of law’ by uttering outrageous comments, praising the police and proclaiming that what they did was right. These foolish and irresponsible utterances of these legislators against their own made laws would bring disastrous consequences.

On the contrary, rights activists and former senior police officers condemned the encounter saying that police cannot act like a lynch mob under any circumstances. The encounter is an attempt by authorities to distract peoples’ attention from the government’s failures to prevent crimes against women. Annie Raja, general secretary of the National Federation of Indian  Women, demanding high-level inquiry said, “Why despite of having all legislations in place in the country, government is failing to implement them.

Kavita Krishnan, secretary of the All India Progressive women’s Association, said that the killing of the four men is not justice but a “ploy” to shut down demands for accountability from the police, judiciary and the government. Shabnam Hashmi, a human rights activist and founding member of ANHAD too agrees that the police action might be an attempt of the government to distract the attention of the people.

D. Sivanandhan, former Maharashtra Director General of Police said that after the encounter, the police may get praise for a short period, but it is not good in the long run.

Former Delhi’s Commissioner of Police, Neeraj Kumar, who had handled the Nirbhaya gangrape and murder case in December 2012, commenting on Telangana encounter revealed to PTI that the thought of killing the accused never crossed the mind. “There was a lot of pressure at that time, but the thought of killing them never came. We were getting messages, asking us to throw the accused in front of hungry lions. Someone said castrate them in public, someone said to lynch them, but we just stuck to our guns. There was no question of doing anything illegal.”

Commenting on the incident Chief Justice of India S.A. Bobde said, ” But I don’t think justice can ever be or ought to be instant, and justice must never ever take the form of revenge. I believe justice loses its character of justice if it becomes revenge.”
Some of the infamous policemen are:-

In Mumbai, Sub-Inspector Daya Nayak sometime back had killed 84 criminals. The film Ab Tak Chhapan was based on his life. Inspector Praful Bhosle of Bombay Police was credited with having slain Chhota Shakeel aides Arif Kalia and Anwar Badshah as well as Chhota Rajan sharpshoot er Arun Mahajan. In 1987, he had killed three alleged Khalistani militants in an operation at Vikhroli. He has 75 encounter cases to his name. Inspector Vijay Salaskar of Maharashtra police, shot to fame in 1997, when he killed gangster Amar Naik in an encounter. Salaskar has gunned down over 75 criminals to death. Inspector Ravinder Angre of Mumbai police crime branch has slain over 60 criminals. Inspector Aslam Momin, yet another encounter specialist of Mumbai police was dismissed from service by Mumbai Police Commissioner A.N. Roy in July, 2005 but was later on reinstated. ASI Sachin Vaze was posted at crime branch in Andheri Mumbai. He took part in several encounters. On March 3, 2004, Sachin Vaze was arrested by the State CID for murder and fabricating evidence in the Khwaja Yunus custodial death case.

On November 6, 1976, crime reporters were tipped off about most wanted dacoit Sunder’s arrest. For three months, the alleged dacoit had been hitting the headlines, when suddenly, the official police bulletin announced Sunder’s capture in Jaipur. On November 26, a police spokesman announced that Sunder had died while trying to escape. According to the police version, one of his handcuffs was unlocked and Sunder took the opportunity and jumped into the Jamuna and drowned. Ironically, after some time, Sunder’s case was reopened by an accident. Home ministry handed over the investigation to Central Bureau of Investigation (CBI). Finally, a wave of arrests sent shivers down the ranks of Delhi Police. Those arrested include the then Superintendent of Police (East District), a DSP, four inspectors, four sub-inspectors and constables. On July 11, 1977, the Chief Metropolitan Magistrate issued a warrant of arrest against the then DIG Police, P.S. Bhinder, and the court declined to release them on bail. After a few years, P.S. Bhinder was acquitted who finally reached to the rank of Commissioner of Police.

In October, 2007, a city court in Delhi sentenced to life imprisonment 10 policemen, including the trigger-happy Assistant Commissioner of Police Satyavir Singh Rathi, for killing two innocent businessmen Pradeep Goyal and Jagjeet Singh, in a fake encounter at Connaught Place, in 1997.

Commenting on the whole issue, Professor of Law, Dr. Khan Noor Ephroz said, “The killing of the four men accused of rape and murder by Telangana Police is a glaring example of disrespecting the rule of law and denying the sacrosanct process of criminal justice. The crime of the culprits had not been tried and established by the court of law. The extra-judicial killing snatched the rights of the accused of being heard.”

There is a recent example of Uttar Pradesh Police’s ‘trigger happy’ culture which led to the gunning down in cold blood of Apple executive Vivek Tiwari for not stopping his car when waved down by two cops on a Lucknow road. Yogi Adityanath said that it was not an encounter.

Noted Advocate Yawer Qazalbash, having to his credit six decades of practice said, “The law relating to purported exercise of ‘plea of self-defence’, normally taken in almost each case of encounters in one way or the other to justify those acts, cannot be expected to exonerate the  involved personnel blatantly, because the plea of self-defence is an exception to general rule of intentional homicidal killings. Each case has to be scrutinized according to the circumstances and the evidence produced in defence before an unbiased court.”

Qazalbash further said, “In UP alone around 103 persons were killed in the last two years in police encounters and were justified in the guise of cleansing the society of the criminals. Among many States some police officers are unofficially designated as “encounter specialists” by media. Certainly there is no place for impunity for any one in a democratic country. In a recent debate one retired DG police accepted that among the four unarmed persons killed in extra judicial killings in Telengana, any one of the accused might have been found innocent if a fair trial would have commenced.

Qazalbash pointed out that it becomes a question of patience by the victim’s relatives and that of public at large to wait for the conclusion of trial before a competent court of law. But in the recent times even the learned ‘law-makers’ are seen and tend to lose patience, not only cheering but leading the bloodthirsty mobs to usher instant justice; resulting in encounters. It is true that criminal courts impart justice with delays, or even fail to do so in most of the cases but that cannot justify extrajudicial killings by any standards. Some reforms are urgently needed in procedure, but at the same time considering rights of the accused, so that delays in trials may be diminished.”

Renowned Advocate Navin Kumar Jaggi and his team comprising Vikram Gupta and K. Aiswarya, coming out with wise inputs said, “ The Police took law in their hands and killed the accused through an encounter. From an emotional point of view, any parent of the victim would wish that the accused receives nothing but death. For crimes like rape and murder, when committed, it innately strips away the ethical and moral values on which the mankind stood strong. And from a common man’s point of view, who is fed up to hear the case getting adjourned again and again or the criminal is acquitted despite sufficient evidence, this encounter is surely like a dead shot to all the woes and hatred of public against the accused. However, this encounter has equally received harsh criticisms from the legal fraternity as well. Extra-judicial killings have always been denounced in the eyes of law, be it a human right group or a law agency, they still voice their worries and concerns against it and are sturdy about the same. The Hyderabad rape case is no exception to it.”

Navin Kumar Jaggi and team pointed out that in Om Prakash v. State of Jharkhand, Supreme Court had observed that ‘Despite repeatedly admonishing ‘trigger happy’ police personnel try to eliminate or liquidate criminals under the system of encounter. Such killings are not legalised in our criminal justice administration system and must be highly condemned.’

Further in Jaspal Singh Gosain v. CBI , Delhi High Court bench comprising Justice S. Murlidhar and Justice I.S Mehta clearly held that – ‘fake encounters do not hold any notable position in the legal system governed by the rule of law.’
In PUCL v. State of Maharashtra, 16 guidelines were laid down by the Hon’ble Supreme Court which are to be followed while investigating in the matters of police encounters. The standard procedure must be duly conducted in a thorough, effective and in an independent manner.

The two-judge bench comprising Justice Madan B. Lokur and Justice Uday Umesh Lalit in the case of Extra-Judicial Execution Victims’ Families Association v. Union of India held that even when it comes to dealing with ‘enemy’, rule of law would be applicable.

Faizan Mustafa, noted legal luminary and Vice Chancellor, NALSAR University of Law, Hyderabad said, “The deaths, in an encounter on December 6, 2019, of the four accused in the rape and murder of a young veterinarian in Hyderabad is a disturbing trend and has revived the debate on the “right to kill”, or “extra-judicial killings” or “fake encounters”, which is the ugly reality of our country. Earlier, these encounters used to be criticised by the public and media. But in the new and “resurgent” India, we have started celebrating this instant and brutal form of justice. Blood lust has become the norm in preference to due process and constitutional norms. For example, there were many in Hyderabad who were seen showering flower petals on the police officers involved in December 6 encounter. Even the father of the Unnao rape victim has demanded “Hyderabad-like justice”. Is India moving from rule of law to rule by gun?”

Faizan Mustafa sharing his views with The Hindu also said, “We have reason to be concerned about delays in rape trials. But a Hyderabad-like solution is absolutely out of the question. The new Chief Justice of India has rightly ruled out the instant justice model in a speech recently.

According to Mustafa, “India is not the only country that uses encounters. A UN working group on “Enforced or Involuntary Disappearances” has noted, with anguish, that guilty officials are generally not punished. India is also bound by Resolution 1989/65 of May 24, 1989 which had recommended that the principles on the “Effective Prevention and Investigation of Extra Legal, Arbitrary and Summary Executions” annexed to the Resolution be honoured by all governments. The UN General Assembly subsequently approved the principles. It resolved that the principles, “shall be taken into account and respected by governments within the framework of their national legislation and practices, and shall be brought to the attention of law enforcement and criminal justice officials, military personnel, lawyers, members of the executive and legislative bodies of the government and the public in general”. As such, we have not done much in disseminating these guidelines and norms among our police and security forces.”

Mustafa observed that the “Hyderabad encounter” does not look like an act of self-defence. It defies common sense and stretches credulity that the police would take accused to the scene of crime at 5.30 a.m. The sun rises a little after 6 a.m. The confession of rape by them to the police is irrelevant under Section 25 in the Indian Evidence Act, 1872. Moreover, our law does permit retraction of confessions by the accused. The UN Human Rights Committee, in many reports, has said that “encounters are murders”. Encounter killings are probably the greatest violation of the most precious of all fundamental rights — the right to live with human dignity. Many a time these killings are fake and are so orchestrated that it is difficult to conclusively prove them wrong. These killings always take place with the prior consent of the highest authority, be it either administrative or ministerial. Encounters have indeed become the common phenomenon of our criminal justice system and there are police officers who covet the title “encounter specialists”.

Citing the Punjab insurgency in the 1980s, Mustafa recalled that “a large number of suspected militants were eliminated through the encounter killings. K.P.S. Gill, the then DG Police even got the Governor of the State transferred on questioning the police action. The police tried its best to silence those who wanted due process of law such as Jaswant Singh Kalra, an activist, who used government crematoria records of just one Punjab district to show that at least 6,000 people were secretly cremated by the police. The Government of India itself admitted that as many as 2,097 people had been secretly cremated in Amritsar alone. Despite the intervention of the National Human Rights Commission (NHRC) and the Supreme Court, just 30 cases were registered by the Central Bureau of Investigation. Punjab’s response to terrorism was appreciated all over as a model to be followed by other States.”

“Similarly, in Kashmir about 8,000 people who were apparently in police custody were eliminated in a similar manner though the government contests this figure and says some may have even crossed the border. Even after the so-called end of insurgency, encounters have not come to an end. In 2000 for the massacre of 36 Sikhs in Chittisinghpura, five suspected militants were killed in an encounter. Subsequent forensic tests showed them to be innocent local villagers.”
“Andhra Pradesh too has been notorious as far as encounter killings are concerned. In February 2009, in its judgment on a writ petition filed by the Andhra Pradesh Civil Liberties Committee in the context of 1,800 encounter deaths (1997-2007), the Andhra Pradesh High Court (of united Andhra Pradesh) recognised that encounter deaths are, prima facie, cases of culpable homicide. Thus in all cases of encounter deaths a first information report must be registered, and an independent and impartial investigation ensured.

Hon’ble Supreme Court of India, in Prakash Kadam Vs Ramprashad Vishwanath Gupta, in May, 2011, had recommended gallows for cops involved in fake encounters. The SC ruled that fake encounter killings fell within the category of ‘the rarest of rare’ cases and policemen found involved in such killings ‘must be given death sentence’.

“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,” a bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra said.

With the bench placing fake encounter killings in the category of the rarest of rare cases, the judgment could be cited while seeking capital punishment for policemen found guilty of killing people in cold blood in the name of an encounter.

Justice Katju, who wrote the judgment, said the encounter philosophy was a criminal philosophy, and all policemen ” must know this”. ” 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,” the bench said.
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 orders, otherwise he will be charged for murder, and if found guilty – sentenced to death, the court said.

“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,” the bench said.
Justifying cancellation of bail by the high court, the court said such policemen could also finish off witnesses against them. The court said this was a case “where the protectors had become predators.”

A judicial inquiry has been instituted. Whatever may be the outcome of the inquiry, the facts remain that the 10 member armed police team involved in Telangana encounter was highly untrained, incompetent and incapable to handle the four unarmed culprits. What right do they have now to remain in police service, as those who can not protect themselves are most unlikely to protect the citizens.

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