An encounter is a generic word used in India, to label extra judicial killings done either by police officers or by the Army Personnel. In the past, encounters have been very rare only used in special cases where the situation has become complex or in case of self-defense, but from the past two decades i.e., from 90’s onwards, the police officers have encountered many people in the camouflage of extra judicial killings which have raised doubts in the minds of the people as to the legality of the encounters done. Everyone has innumerable questions in their mind as to whether the encounter is real or a fake encounter? What is the cause behind fake encounters?
What is a fake or staged encounter?
In the circumstances where the police officers or the Army officers had to kill the suspect either when he is unarmed or in the custody in the name of self-defense is known as Staged or Fake encounter. In these situations, there is a high chance where the officers themselves plant the weapons near the suspects so that they can corroborate the encounter has taken place in self-defense.
- On the night of Diwali, eight terrorists belonging to Student’s Islamic Movement of India (SIMI) which has been banned, and who are facing charges (undertrails) for many crimes such as bomb blasts in 2008, cases of looting and dacoity across many states have escaped the Bhopal Central Jail in Madhya Pradesh. Out of the 8 terrorists 3 of them have been previously involved in the jailbreak in Khandwa in 2013.This incident has occurred around 2-3AM in the night. The officials have said that the SIMI terrorists have used utensils such as steel plate and spoons as weapons in order to escape the prison. After breaking through the cell barracks, they killed a police guard “Ramashankar Yadav” who is on duty of surveillance that day, tied and gagged an other guard who came after hearing the commotion which is being taken place. After which, using the blankets and wooden logs, they have scaled a 10 feet wall outside their cells and the outer wall, which is of 35 feet height and a wall of 20 feet height separating the high risk ward. [Piecing Together An Encounter BY P. K. HORMIS THARAKAN]
All through this operation of escape by the terrorists none of the guards even those who have been assigned on the top of watchtower have noticed their escape. Almost after an hour of their escape the authorities have noticed their escape and started the search.
On 31st morning around 8-9AM, one Naresh Pal who is an old farmer and a kirana shop owner has spotted the SIMI terrorists and has reported to the police that there are suspicious men in the Khejra Devi Village which is only about 10-15 kms from the Bhopal Central Jail. As soon as the police received the information they reached the spot where the terrorists are to be seen. Meanwhile, the local village people started following the terrorists who started climbing hillock by which the police have arrived. By 10:30 AM the police have surrounded that hillock and started their operation. Within an hour the operation has ended and all the eight SIMI terrorists have been encountered. [Bhopal jailbreak: From escape to encounter of SIMI activists By Milind Gahtwai, Dipankar Ghose]
Many videos have been taken and when spoken with many village people in regard with the incident, doubts have begun to rise in the minds of the people. As per the version of the police officers they claim that they acted in self-defense when the terrorists fired at them, but the villages say that apart from the sharpened weapons which have been made out of utensils the terrorists dint possess any guns in order to fire. The villages made statements that the terrorists have tried to throw rocks but they dint see any firing on part of them. They also claimed that they heard sounds of firing but thought that they were coming from the police officers who are on the other side of the hillock. This has to be ambiguity will be cleared only after the investigation has been done.
In one of videos it was heard that the 5 terrorists were trying to talk to the police officers and the 3 of them have been trying to escape when the police people were asked to surround the hillock from all the sides. While this is going on it was shown in the video that a gunshot has been fired. Question arises here as to why when they were trying to talk the gun has been fired?
In another video it was shown that a police officer has shot a terrorist from a very close range though it cannot be made out from the video whether the terrorist is alive or not. But even if one of the terrorists is alive, will it not be beneficial to the government to question him and unravel the whole conspiracy as to who is behind it as the escape cannot be possible without an insider help, as it has come to the notice of the authorities that the terrorists possess blankets more than they were entitled to and in a prison of high security and tight rules where each and every information is recorded it is highly impossible to escape without the help.
It is also important to note that the terrorists have escaped around 2-3AM and the police got the information as to their spotting at around 8AM. There have been approximately 4-5 hours for the terrorists to escape and even if they walk they could have easily covered more than 10-15 kilometers. This remains a big question to the people and also as to why all the terrorists have stayed together instead of dispersing after their escape, which would have made the search of the police more difficult?
- After raising of all the doubts, when the incident of encounter should have been a glory moment to the police authorities they are on the stand to take a defense so as to prove that the encounter is legal. The authorities relied upon Section 46(2) and 46(3) of Criminal Procedure Code, 1973 where it says that if and when a person tries to forcibly trying to resist the arrest, or evading the arrest, then such officer who is empowered by the authority can use all the means necessary to effect the arrest, including causing of death in cases where the person is accused of an offence punishable by death or life imprisonment.[ Piecing Together An Encounter BY P. K. HORMIS THARAKAN]
In the past two decades many fake encounters such as Ishrat Jahan’s, Sohrabuddin’s, Manipur killing by the Army people, have taken place and in each of the cases the court has ordered a judicial probe. With the raise in the alleged encounters there has been a demand for judicial probe to be done where a succession of the Supreme Court judgments show that “the law is profoundly, even fatally loaded against the police officers who were found guilty of fake encounter”
In “Prakash Kadam v. Ramprasad Vishwanath Gupta” [(2011) 6 SCC 189] the Supreme Court held that “ in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake “encounter” is nothing but cold-blooded, brutal murder by persons, who are supposed to uphold the law.”
In “ Satyavir Singh Rathi, Assistant Commissioner of Police v. State of Central Bureau of Investigation”  where the police people have alleged surrounded a car and indiscriminately fired at the occupants in the until they are dead the court held that the police officer were liable under Section 302 read with section 34 of Indian Penal Code, 1860 and the court has also reprimanded the state for not commencing the investigation.
This judgment has become a precedent for the following cases and when the case of a fake “encounter” has come before the court in “People’s Union for Civil Liberties v. State of Maharashtra and Ors.”  The Supreme Court has laid down the guidelines to prevent fake encounters by police officers. The Guidelines are:
- Whenever the police obtain any intelligence or tip-offs in regard to criminal movements or activities of the criminal, then it has to be recorded either in the written form or in an electronic form.
- If based on the intelligence, an encounter takes place and the police use fire arms and on account which the death takes place an FIR has to be registered by the police and that has to be forwarded to the court as per Section 157 and 158 of Criminal Procedure Code, 1973.
- An independent CID team to probe into the death which has to meet minimum eight requirements of the investigation such as identifying the victim, to recover evidentiary material, fingerprints are sent for chemical analysis etc.,
- There has to be a compulsory magisterial inquiry under Section 176 of Criminal Procedure Code, into all the encounter cases.
- The information in regard to the encounter has to be informed immediately to the National State Human Rights Commission or State Commission.
- The injured victim must be provided with medical aid and the statement given by the victim has to be recorded by the Magistrate.
- All the documents such as FIR, Panchnamas, and Dairy entries have to be sent to the concerned court without any delay.
- A full investigation report under Section 173 of Criminal Procedure Code has to be sent to the competent court.
- In the event of death, then the next kin of the criminal must be informed.
- Reports in regard to the encounters have to be sent bi-annually to the National Human Rights Commission in a set date and in a set format
- Suspension and Disciplinary action against the police has to be taken in case of wrongful encounter.
- Subject to the Rights under Article 20 of the Indian Constitution, the police officer must surrender his weapon for investigation.
- Police officers families must also be informed
- For all the officers involved in the wrongful encounter, there would be no out-of-turn promotions or gallantry awards shall be conferred.
- If the victim’s family finds out that the above guidelines have not been followed then in that case they can complaint to the Sessions Judge and he will take cognizance of the matter.
In “Extra Judicial Executive Victims Families v. Union of India” the Supreme Court has held that “it does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both. This is the requirement of a democracy.” [SC verdicts talked tough against security personnel on fake encounters by KRISHNADAS RAJAGOPAL]
In Bhopal encounter case, with so many doubt arising after the videos have been viewed and on the overall escape, a probe is to be conducted by the Retired High Court Judge “Justice S.K Pandey” and the whole details of the encounter will be confirmed when the National Investigative Agency completes its investigation. If the videos are confirmed to be true then the authorities have disobeyed the guidelines of the judgments.