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Police encounter – a necessary evil?

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Police encounter – a necessary evil?

A fake police encounter, by customary definition, means a contrived situation where police used lethal force upon a criminal who was already in their custody. Some of them are so outrageous that courts are forced to order murder charges against police officials. There are many encounters like Pilibhit (1991); Bhojpur, Ghaziabad (1996); Ranbir, Dehradun (2009); Connaught Place (1997); and the case of Prakash Kadam (2011), where the courts did punish the cops. I have criticized such outrageous cases in the past. Nobody can afford to argue that police must be allowed to remain permanently above the ‘Rule of Law’. Nobody can envisage a situation where the police become the judge, jury and executioner forever. We cannot envisage a situation where extrajudicial executions become the norm in policing.

However, the question is, given the audacity and brazenness with which criminals and terrorists have taken to committing heinous crimes; we must ask whether it is only the State and the police that are supposed to follow the law. Are criminals at liberty to make a mockery of the law at will and expect that the State must treat them with the utmost respect and accord them all protection until their convictions are confirmed by the Supreme Court itself?

Police encounter – a necessary evil?

The State or government does not exist or function in a vacuum. The State exists for the people and it is under an obligation to perform in a manner so that people trust the State to be their protector. Otherwise, its very credibility to existing and govern is undermined.

Take, for example, the most recent encounter of the Atiq Ahmed gang members, who had killed Umesh Pal. Umesh Pal, a key witness in the 2005 murder of BSP MLA Raju Pal, was shot dead in Prayagraj. His two police security men were also injured in the attack and later succumbed to his injuries. Raju Pal was murdered months after winning the Allahabad (West) assembly seat in his electoral debut by defeating Atiq’s younger brother Khalid Azim. After a 44 year long career in crime that started at the age of 17 and without a single conviction in nearly 100 cases against him, the notorious gangster Atiq Ahmed has recently been convicted for life for the abduction of Umesh Pal when he had refused to retract his witness statement in spite of Atiq’s pressure.

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Atiq’s henchmen killed Umesh Pal in broad daylight in front of his house in just 47 seconds and managed to escape. They shot at them from point-blank range as they got out of his car. They tried to escape inside the house in spite of being shot but they continued to fire at them until they fell. A bomb was also thrown. Both the cops, Raghavendra Singh and Sandeep Nishad were martyred.   

Following this daring crime, the UP Chief Minister Yogi Adityanath had vowed in the state assembly that he would destroy the mafia in the state (“Mafiaon ko mitti me mila denge”), and alleged that the Samajwadi Party had nurtured them during its regime. Within days of the murder, the UP police shot down Arbaaz, who had driven the SUV of the killers, in an encounter. Later, Vijay Choudhary @ Usman who had fired the first shot at Umesh Pal was also killed in an encounter. A constable was also injured in that operation. Several posh houses of Atiq’s associates built illegally were also demolished by bulldozers. However, other accused are still absconding and are believed to have fled to Nepal.

The simple issue is that the crime, committed in broad daylight on a busy street, was so daring, so outrageous, such a brazen challenge to the State, and such an affront to the ‘Rule of Law’ that people would have lost faith in the ‘might’ of the government and its capability to provide security and justice to the people, had the police action not been as swift and as demonstrative as it was in the instant case.

A desire for encounter following acquittals in Jaipur bomb blast case

Take the most recent case of the acquittal of the four accused in the Jaipur Bomb Blast case of 2008 by the Rajasthan High Court. On May 13, 2008, within a span of just half an hour, as many as nine bombs exploded in the old, walled city of Jaipur. It was a diabolical attack with bombs that used RDX. The first bomb exploded at 7:15 pm at the Johri Bazaar, the iconic and busiest market of the city.

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The location was chosen to spread maximum panic and channel the fleeing people to nearby, narrow lanes and more crowded places, where they were caught in the blasts of other bombs. These bombs exploded at the Hanuman Mandir, Hawa Mahal, Badi Chaupad, Chhoti Chaupad, Manak Chowk, Tripolia Bazar, Chandpole and a police station. Being a Tuesday, the Hanuman Mandir was anyway chock full of devotees and the timing of the explosions were made to coincide with the evening Aarti when the crowd would be maximum. A live bomb was also found on a bicycle near a shop in front of the Chandpole Ramchandraji temple where it was defused. All this makes it clear that Hindus were the targets.

A day after the blasts, the terror outfit Indian Mujahideen, sent an email to a media house, claiming responsibility for the attack. In the email, they had attached a video of a bicycle laden with explosives. Police maintained that the serial number of the bicycle matched one of those used in the blast.

In a shocker, on March 29, the Rajasthan High Court, finding fault with the investigation, acquitted the four men (Mohammed Sarvar Azmi, Mohammed Saif, Saifurrehman Ansari and Mohammed Salman) who had been sentenced to death by the trial court in 2019. These four men, hailing from Azamgarh in UP, had been arrested over a period of two years from December 2008-December 2010. Three more accused, Yasin Bhatkal, Asadullah Akhtar, and Aariz, are currently in Tihar Jail, facing trial in other blast cases, whereas two others accused were killed in the Batla House encounter in Delhi in September 2008.

To any person who is not dumb or utterly insensitive, it should not be difficult to imagine the terrible frustration of the victim’s families, and how dejected, and cheated they must be feeling by this acquittal. In that brutal attack, as many as 71 people had been killed and 185 injured. It was a most traumatic experience for the hitherto peaceful city as its healthcare system croaked under the sudden impact of the casualties. Hospitals ran out of blood and blood had to be airlifted from as far as Jodhpur. More than 250 families were shattered and the lives of a thousand persons were destroyed.

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Today, you talk to anybody in Jaipur in the streets, bus stands, railway platforms, markets, tea stalls and in innumerable Whatsapp groups, only one cry is resonating—that it would have been infinitely better had the police killed these people in an encounter instead of arresting them and getting bogged down in a process that took 15 years, and yet failed to give justice to the families of the victims. They also say that had there been someone like Yogi Adityanath as chief minister in Rajasthan, the encounter would indeed have been done.

Truth is what is proven to be true in the court

Like it or not, that is how the Indian criminal justice system works. It means that a so-called fake encounter will be regarded as fake only if the police story falls apart in the court—otherwise not.

If the police version is palpably absurd, no Court or Commission of Inquiry (CoI) is likely to believe it. In December 2019, a young veterinarian was subjected to gang rape and murder in Hyderabad—the case came to be known as the ‘Disha’ gang rape-cum-murder case. The accused were arrested promptly. A few days later, on the pretext of recreating the crime scene, they were taken to the same place where they had committed the crime. Then, on the usual but unbelievable pretext that the accused had tried to escape amidst the presence of scores of armed cops around, all four of them were shot dead.

The CoI appointed by the Supreme Court, and headed by Justice V. S. Sirpurkar, determined the encounter to be fake and recommended a murder charge against 10 police officials. Why—because the police version was so utterly unbelievable. The CoI trashed the cops’ claim that the accused, who had no prior experience with guns, snatched police weapons by throwing mud in their eyes and opened fire while running away. It also pointed out that no bullets or spent cartridges were found at the site. In fact, more holes could be picked in the police story. For example, why they had not placed some restraints on the accused? And, how careless they could get that someone could try snatching their weapons? Why had they not secured their weapons with lanyards?

On the other hand, if the police have made their version ironclad, and if the court cannot pick any holes in it, it would become the truth. For example, the police version must satisfactorily explain and be consistent with the issues of range at which they engaged the criminals; the range of the weapon(s) with the criminals; the number of rounds with them; the issue of the line of sight and line of fire; bullet marks on police vehicles or injuries to the cops and whether they are consistent with the weaponry of the criminals; and how the criminal reached that place so that everything dovetails with the claims.

I will illustrate it with a hypothetical example. Suppose, the police are claiming that, in a terrorism-infested area, a post of the security forces was fired upon by the terrorists and in return fire by the sentry, some terrorists were killed. If the police have produced bullet marks on the sentry’s morcha (sentry box) that are consistent with the weapons shown recovered from the terrorists and the locations from where they were firing, it will be ‘proved’ that the sentry was fired upon and he was justified in returning fire in self-defence.

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If the police claim that they threw grenades and if the splinter marks on the sentry box are consistent with that, the sentry would be justified in firing. If the positions of the dead bodies of the terrorists are consistent with the line of fire available to them and the sentry (that is, no obstacle in the path of their bullets), it will be ‘proved’ that they were hit by his bullets. If the bullet wounds on their bodies are consistent with the weapon of the sentry, the police version will get additional support. Finally, if the police have shown recovery of weapons from the terrorists and empty cartridges corresponding to those weapons, the claim would be sealed.

Police encounter: let’s be realistic in dealing with a complex problem

I am aware of the fact that the difference between a nation-state and a criminal is that the State must necessarily ride a higher moral horse. However, it does not mean that the criminals can be allowed to hold the nation-state for ransom. We cannot close our eyes to the fact that the judicial process is slow and that it is difficult to secure convictions against criminals who can ‘silence’ witnesses. This breeds a tremendous amount of frustration in the hearts of the very people in the name of whom the nation-state is created and which further creates laws for itself. The nation-state exists for the people; not the other way around. If the laws are not satisfactory, they must be changed. 

Let us not close our eyes to reality by burying our heads in the sands of the unrealistic idealism of the pseudo-liberals. Theoretically, it could be argued that criminals should be Tasered or shot with pellets, etc. so as to keep them alive for prosecution. However, you must know that the American police have been using Tasers for decades and yet they are obliged to shoot to kill. In the February killing of Tyre Nichols in Memphis, Taser was used on him but he managed to dodge it.

Moreover, when you find that there are such dangerous criminals who could continue their criminal activities even when inside the jail; when you find that they wield such clout that they are yet to be convicted in a single case in spite of a battery of cases against them; when they are so dangerous that they get killed even those who dare to depose against them, what hope can citizens have from the ‘normal police procedures’ and the meandering criminal justice system to deal with them?

I do agree that when you grant discretion to the police or the State, there is always an element of subjectivity built in and it can be abused. Given the record of the Indian police and its colonial legacy, the possibility of abuse is very much real. At the same time, we cannot allow the faith, the trust people repose in the State as their ‘protector’ to be eroded. That faith is the basis for the stability of the nation-state and if it starts eroding, we would be writing the sure recipe for anarchy. That faith cannot be maintained by a system, in which getting justice in the normal course takes years and often people condemned to death also are acquitted on appeal.

From the point of view of analysing this as a social phenomenon, we must attach importance to the fact that the Disha case encounter was welcomed widely. In fact, people raised slogans in support of the police and showered flower petals on them. Neither the police nor the public had any desire to see them punished by the law of the land.

Similarly, in the Jaipur acquittals, we cannot dismiss the people’s burning desire for encounters merely as fulminations of people frustrated by the system or their bloodlust. No, they know that the outdated colonial criminal justice system has failed and it cannot deliver justice to the satisfaction of the people. Who in the world would not be frustrated by the fact that bomb blasts were mocking the might of the State which inflicted as many as 256 casualties and not a single person gets punished for that even after 15 long years? How are the people supposed to keep their faith in the system?

The British had imposed an unnecessarily complicated criminal justice system upon us because, their main concern, at that time, was to discredit the traditional systems of the dispensation of justice prevalent in the country. Our traditional systems dispensed justice quickly and for thousands of years, people were happy with that. There was not a single person who had gone and submitted an appeal before Macaulay et al that he and his ancestors had been groaning under the weight of the whimsical criminal justice system of the country for thousands of years and the gora sahib was requested to provide him with a better system.

In any case, the British were not clairvoyants. Back in 1861, there was no way they could have foreseen what the country and the society would be a century and more thereafter. Obviously, the criminal justice system which they devised and imposed upon us is not able to meet the challenges thrown by crime and criminals of the modern era. Continuing with the ‘unfit and unnatural system’ imposed upon us by the British is responsible for making the delivery of justice costly, time-consuming and absolutely uncertain, which shakes the faith of the people in getting justice. On the other hand, no one can argue that police must be given a license for extrajudicial executions.

The point being made is that at least in this country, with our outdated criminal justice system, we are facing a very complex situation. Liberals’ summary condemnation of every police encounter is patently unfair. After all, the police have a right to shoot in private defence of themselves or others—this right has been given to them by the law and the Supreme Court judgment in the case of Darshan Singh (2010) provides the guidelines. Otherwise, why does society give lethal weapons to the police? They are not merely for show. On the other hand, justification of every encounter by over-enthusiastic cops is also bad.

There is yet another issue, which is often overlooked. Even as the Supreme Court has framed guidelines for encounters in the PUCL case (2014), it will be difficult for the police to continue functioning if every encounter were to be subjected to both public and judicial scrutiny. They work under extremely difficult circumstances and adverse working conditions and it cannot be said that they do encounters by way of contract killing.

The country cannot be governed by knee-jerk reactions in either direction. Moreover, for such a complex problem, there cannot be simple, cut-and-dried solutions either. There is something called maturity. That is what we need from people, the media and the courts. In a mature State, its courts and people do not require everything in black and white to function properly.   

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Dr N C Asthana IPS (Retd)
Dr N C Asthana IPS (Retd)
Dr. N. C. Asthana, IPS (Retd) is a former DGP of Kerala and ADG BSF/CRPF. Of the 51 books that he has authored, 20 are on terrorism, counter-terrorism, defense, strategic studies, military science, and internal security, etc. They have been reviewed at very high levels in the world and are regularly cited for authority in the research works at some of the most prestigious professional institutions of the world such as the US Army Command & General Staff College and Frunze Military Academy, Russia. The views expressed are his own.


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