The LexGaze Weekly - WE THE PEOPLE

Police Encounters In Cases Of Compelling Or Corroboratively Compelling Evidence- The Need For Its Legalization In Furtherance Of Vikay Dubey’s Encounter

Tejas Sateesha Hinder

Issue 5 | July 18, 2020

While many in the country are looking at Vikas Dubey’s encounter as an arbitrary and unjustified use of power, it becomes imperative for one to understand that in instances of clear and compelling or corroboratively compelling evidence, indicating that an individual is responsible for serious and heinous offences, immediate and appropriate action must be taken up by the Police as an institution on satisfaction with regard to the aforesaid criteria, something for which they would eventually become accountable for after taking action. Though the fact that there exists a judiciary to examine offences and accord punishments accordingly cannot be disregarded, the loopholes associated in the process of criminal justice administration in India are now at a stage where they are beyond corrigible, and mitigate considerations to refer cases involving heinous crimes to a trial. A narrative that the action taken by the police in furtherance of the compelling evidences is a trial by executive is to be pushed forward.

Coming to the significant concern surrounding mitigation of possibilities of identifying associated criminals and crime links, it must be understood that the prerogative while gunning down an offender accused of serious offences, always includes identification of associations or links that the criminal has or has had, either as a step after becoming aware of  such criminal, or in a series of steps to get hold of such offender, and the reports in the present case indicate the former having been undertaken prior to the encounter. Even if it does come up as a contention, that such an identification of links may not be exhaustive in the course of investigation preceding an encounter, the same can be made exhaustive post-encounter through further investigation and interrogation of identified links, and halting an encounter of an individual who has committed heinous offences of such nature, as in the present case, is not desirable just to ensure prolongment of investigation to identify all possible links and affiliations, in addition to what would have been done. Moreover, this exercise shall not exceed the stage of satisfaction of the police as an institution of the Executive.

Hence, the line of demarcation being referred to for cases like these ought to be drawn in order to differentiate between the extent of heinousness of the offences and the possibilities of existence of criminal associations and affiliations. The same is always well-drawn in cases like these, be it the Vikas Dubey encounter, the Daya Nayak encounter or the Batla House encounter.

Due to the aforesaid reasons, it becomes imperative to legalize extra-judicial killings by the police.

Let us now look at the reasons that potentially prevent the legalization of such extra-judicial killings. The first reason for the same is possibilities of framing and killing of innocent individuals by the police in order to mitigate the pressure being built on them in serious offences such as waging war against the state, which may involve bomb blasts or similar violent activities in the country. The possibilities of this happening remain high due to the discretionary power resting in the hands of the police, which also means possibilities of manipulation of reports and FIRs lodged, due to the entire force functioning as one unit.

The second reason for it stands to be the presence of a judicial system in place which is in place to ascertain cases like these effectively, and accord punishments accordingly. With the recognition of the need to ensure speedy trial in cases of heinous crimes, so as to ensure immediate meting out of punishments for such offences, a trial by executive is a narrative that need not be pushed for.

Moreover, with the absence of obligation to report to an authority in place about sufficient compelling evidence gathered before choosing to undertake an extra-judicial killing, the arbitrariness stands on a high pedestal, and chances of misuse of power are not mitigated, and such instances have been observed in the past.

On a concluding note, it is imperative to understand that the same needs to be legalised so as to ensure that heinous crimes are redressed effectively, which many a time are not so redressed, due to the existing loopholes in the criminal justice administration. In order to ensure that this recourse, once made available, is exercised effectively, there exists a need to constitute a statutory special task force for every state, which, in cases of extra-judicial killings, shall within 12 hours, review the submission of a report by the Police forces looking forward to the encounter, which has to be made before undertaking to resort to such extra-judicial killings. The aforesaid report to be submitted by the police shall include and enlist definitive and compelling evidence to indicate the heinous crimes committed by the target offender as well as potential associations and affiliations of such offender, which if not exhaustive, act as potential sources to make the aforesaid exhaustive, post the extra-judicial killings. To ensure that the aforesaid special task force works in a neutral manner, it shall be made statutorily accountable to the judiciary, and permission of judicial enquiries into such cases shall be permitted in all circumstances. This ensures maximum accountability of the Special Task Force constituted as well as the Police Forces.