An account of police encounters claiming lives of innocent citizens under the garb of law.

1. POLICE ENCOUNTER– LEGITIMATELY ILLEGAL !
BY: YUVRAJ P. NARVANKAR
BSL, LLM (Gold Medallist)
Bombay High Court
Introduction-
With the political and economic developments, social complexities also began to develop
resulting in growing crime rate and various unforeseen situations. State with the aid of police
machinery and administrative organs invented various techniques to deal with hardened criminals .
Similarly various laws were enacted to bring the real culprit before the court and vindicate justice .
However in view of modern developments in ammunition technology and Modus Operandi of
the hardened criminals , it became Herculean task for the police to catch hold of criminals and bring
them before the court , resulting in scotting free the criminals and thereby diminishing the deterrent
value of penal laws . To deal with such contingencies, police force began to resort retributive
measures thereby giving rise to incidents like ‘Encounters’, wherein alleged criminals who resisted
their arrest with means of firearms or who tried to evade prospective arrest by fleeing away, were
shot at by police resulting in death or serious injuries to the criminals . Primarily Encounters were
means devised to deal with complex situations and were resorted to rarely. However frequent and
rampant use of encounter by police created grave doubts regarding true intention and purpose
behind encounter thereby challenging the very legality of encounters. Though police force was firm
in its stand and supported encounters, various human rights activists, social welfare institutions and
relatives of deceased strongly opposed the encounters, alleging encounters as against fundamentals
of human rights and constitutional right to life of the person under article 21 . This paper seeks to
present , in brief, the judicial and legal approach towards burning issue of legality of encounter .
I. Relevant legal provisions -
It is pertinent to note that there is no provision in Indian law directly authorizing encounter
of criminals , howsoever grievous crime he is charged with but there are certain enabling provisions
, which may be construed to vest police with certain powers to deal with criminals .
In almost all cases where encounter is done, it is done for the private defence of police
officer ,trying to effect the arrest of the criminal where criminal opens fire or tries to evade the
arrest .
1

2. Right to private defence is natural and inherent right of every human being also recognized by law
as -
Indian Penal Code(referred to as IPC) Section 96 provides that “nothing is an offence which is
done in the exercise of the right of private defence”
Whereas IPC Section 100 enumerates the situations in which the right of private defence of the
body extends to causing death namely, first where an assault is such as may reasonably cause
apprehension that death will otherwise be the consequence of such assault .Secondly such an assault
as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of
such assault. Hence in cases where there exists reasonable apprehension in mind of police officers
that there exists threat to life or limb, they are justified in exercising right of self defence which may
also extend to causing death. Right to self defence commences as soon as reasonable apprehension
of danger to body arises from an attempt or threat to commit the offence though offence may not
have been committed.1
Further it is well established that a person faced with eminent peril of life or
limb is not expected to weigh in golden scale the precise force required to repeal the danger and if
he carries his defence further at the heat of moment law makes due allowance for it.2
The burden of
proof in case of self defence is discharged by preponderance of probability and it need not be
established beyond reasonable doubt.3
Hence in almost all cases where life of police officer is at
stake he is deemed to be vested with right of self defence.
Similarly many times encounter is alleged to be amounting to murder, in such cases , exception 3
of Section 300 of IPC enters the scene providing that culpable homicide is not murder if the
offender , being public servant or aiding a public servant acting for the advancement of public
justice exceeds the power given to him by law and causes death by doing an act which he, in good
faith , believes to be lawful and necessary for the discharge of his duty as such public servant and
without ill-will towards the person whose death is caused . The section is also supported by section
160 of the Bombay Police Act 1951, read with Bombay Police Manual, which provides that no
public servant shall be liable to any penalty for giving effect in good faith to any order or direction
issued with apparent authority by the state government. The sanction for encounter is partially
expressed also in other statutes as follows-
Criminal Procedure Code Section “46(1)...
(2)If such person forcibly resists the endeavour to arrest him , or attempts to
evade the arrest such police officer or other person may use all means necessary to effect the arrest .
(3)Nothing in this section gives a right to cause a death of a person who is not
1 Rama Kamat v. State 1978 Cr.L.J. 1843; Dev Narayan .v. Sate of U.P. (1973)1 SCC 347
2 Mohd. Ramzani v. Emperor AIR 1933 Lah 167
3 Periaswami v. State of T.N. (1996)6 SCC 457; Savita Kumari v. UOI 1993 Cr.L.J. 1590
2

3. accused of an offence punishable with death or with imprisonment for life .”
It is evident from the language of the section that law permits to use all means necessary to effect
arrest of the person however imposes an inherent limitations on this right , with respect to minor
offences not punishable with death or life imprisonment .If widely construed , the section is capable
of giving police the powers which can be arbitrarily used or misused by the police . It is left to the
discretion of the police officer to decide as to which means are 'necessary' to effect the arrest of the
person , which in case can include use of firearms.
Bombay Police Manual Rule 189-
“(1).....if therefore an arrest can not otherwise be effected the use of firearms to
effect the arrest is justifiable and the police officer is protected from the consequence and even from
the liability for the death of a person fired on under such circumstances , in case if the person to be
arrested is accused of an offence punishable with death or transportation of life.
(2)....nothing deprives the police officer of his right of self defence if the resistance
to arrest is such as would justified him in causing death in defence of his own person under section
100 of IPC .This right of self defence includes the use of firearms to overcome the resistance , if
necessary , even with the fatal effect. They can not, if desist on mere shoe of resistance , they are
bound to redouble the efforts , even at the risk of their lives , if opposed and the law protects from
any consequences which the resistance entails .
(3)When the offence is punishable with death or transportation of life and there is no
other means of effecting the arrest of the suspected person , the resort to firearms is justifiable in
spite of any danger there may be of thereby wounding him and causing death .”
Thus law not only justifies use of firearms in arresting the person guilty of an offence punishable
with death or life imprisonment but also cast it as a duty.
Similarly section 28 of the Bombay Police Act 1951 , provides that a police officer will be
always deemed to be on duty . So police officer is always vested with all the powers conferred by
law , even though duty period is over .Thus it can be seen from abovementioned discussion that
though , not directly or specifically permitted , encounter can be supported under various
enactments.
II. Pro-encounter judicial attitude-
Though judicial opinion upon this issue differs , it would be interesting to refer some judgements of
different high courts and supreme court, commenting upon legitimacy of encounters .
In the case Vandana Vikas Waghmare v. State of Maharashtra 4
Hon'ble Bombay High Court held
4 1998 Cr.L.J.4295
3

4. that , it is the responsibility of the police concerned to take adequate and appropriate steps to book
the gangsters under the law. The duty of police organization has become onerous and accountable
and one should refrain from demoralizing the police force and to dissuade them from doing their
duty would be against public interest.
Similarly , in PUCL v. UOI5
Hon'ble Supreme Court categorically said that,
“ under certain conditions, certain additional and unusual powers have
to be given to the police to deal with terrorism. It may be necessary to
fight terrorism with a strong hand which may involve vesting of good
amount of discretion in the police officers or other paramilitary forces
engaged in fighting them. If the version of the police with respect to the
incident in question were true there could have been no question of any
interference by Court. Nobody can say that the police should wait till
they are shot at. It is for the force on the spot to decide when to act, how
to act and where to act. It is not for the Court to say how the criminals
should be fought. One cannot be blind to the fact that even after fifty
years of our Indian independence, our territorial integrity is not fully
secure. There are several types of separatist and terrorist activities in
several parts of the country. They have to be subdued. Whether they
should be fought politically or be death with by force is a matter of
policy for the government to determine. The Courts may not be the
appropriate forum to determine those questions. All this is beyond
dispute.”
Thus it can fairly be seen that encounter is not only indirectly sanctioned by laws but also
considered necessary by courts to check antisocial elements in the society.
III. Some harsh realities -
Though, as seen above , encounter as a weapon is necessary and can be resorted to in certain
situations , it's rampant use that too with malafide intention raises serious doubts as to its
legitimacy. Many shocking instances , where encounters were done by police negligently causing
death of innocent citizens or at the instance of rival criminals or for vindicating their personal
grievances or just to close investigation of any offence, were brought to the notice of court and
thereby 'encounter specialists' were declared as murderers. Supreme court has also accepted fact
5 AIR 1997 SC 1203
4

5. that personal feuds are settled in the facade of maintenance of law and order.6
Unless warranted for
and necessited for self defence, use of encounter by police amounts to legal murder. In such cases
plea of self defence will also not stand good. Because the plea of private defence will apply only
when the death caused is without premeditation7
and without any intention of doing more harm than
necessary.8
In the case where encounter is premeditated and intentional , it will squarely fall within
ambits of section 300 of IPC.9
IV. Violation of right to life -
Article 21 of the constitution guarantees right to life and personal liberty10
. Right to life is
one of the basic human right and not even the state has the authority to violate this right.11
The
state is obliged to protect this life of every person12
and can not shake off its hands on the ground
that it is a case of exception where a policeman under grave provocation acted violently causing
death of the person.13
Therefore state is obliged to protect the life of people against any sort of
aggression and force used by any person including the police officers themselves. As Bombay
Police Manuel rule 188 provides that arrest should be effected without unnecessary violence and
publicity. In the case of PUCL v. UOI 14
Hon'ble Supreme Court held the conduct of police of taking
away life of two culprits and killing them, violative of article 21. Similarly it has been held by
Hon'ble High Court in Kamini Talukdar v. State of Assam 15
that police must make bonafide attempt
to apprehend or it will be cold blooded murder and it would amount to negligence in duties , further
court also noted that even though deceased is culprit he can not be eliminated by police personnel as
he has all rights to live under Article 21 including right to live with dignity. Further in PUCL v.
Union of India. 16
Where there was the allegation of cold blooded killing of 2 persons by staging
fake encounter by police. The District and Sessions Judge was directed to record evidence of
relevant witnesses and submit a report to Supreme Court within six months in order to decide the
question of compensation. Supreme Court has also recognized fact that alone in the year 1981
among the persons killed by the police during such encounters there were as many as 299 innocent
6 Chaitanya v. State of U.P. AIR 1989 SC 1452
7 Baljit Singh v. State of U.P. (1976)4 SC 1452
8 Keshoram Bora v. State of Assam (1978)2 SCC 407
9 IPC section 300 defines murder as “Except in cases hereinafter excepted , culpable homicide is murder , if the act by
which death is caused is done with the intention of causing death; or.........”
10 Constitution Article 21 - “No person shall be deprived of his life and persoal liberty except according to procedure
established by law”
11 State of A.P. v. Challa Ramkrishna Reddy AIR 2000 SC 2083
12 Nilabati Behara v. State of Orissa AIR 1993 SC 1960
13 Jagat Dhar Sharma v. State of Assam AIR 2003 Gau 101
14 AIR 1997 SC 1203
15 1997 Cri.L.J. 2138
16 1995 Supp (2) SCC 572
5

6. persons and personal feuds and enmities being settled and other motives being satisfied by recourse
to the use of force under the guise of maintaining law and order.17
Similarly in the case of PUCL v. UOI 18
Court interestingly found that in all these cases where the
police have alleged that the concerned persons have died in encounters, the alleged criminals were
armed with sophisticated weapons but no injury had been caused to any of the police officers who
had participated in the operation. Invariably the injuries caused to the deceased are on the vital parts
of the body and he is declared dead before admission to the hospital. In no case the firing was made
by the police officer with an intention to disable the concerned criminal. At least prima facie court
found substance in the allegation of the petitioner that there is a general pattern in these FIRs.Court
also remarked that ,
“ We wish make it clear that this Court is not oblivious to the difficulties
faced by the police in tackling with organised crime which has taken root
in the society. We are also conscious of the fact that the police have to
perform a difficult and delicate task, particularly in view of the
deteriorating law and order situation and increasing number of
underworld and armed gangs and criminals. It was argued that if the
Court lays too much emphasis on their fundamental rights and human
rights, such criminals may go scot-free without exposing any element of
criminality and the crime would go unpunished. Attention of court was
drawn to incidents of murders of some important and prominent persons
in the city in recent times. But court said that all this cannot justify
police resorting to extra judicial methods. The action of the State, must
be "right, just and fair". Such a crime-suspect must be interrogated
indeed subjected to sustained and scientific interrogation - determined in
accordance with the provisions of law. He cannot, however, be eliminated
with a view to derive knowledge about his accomplices, weapons etc.
State terrorism is no answer to combat terrorism. State terrorism would
only provide legitimacy to "terrorism". That would be bad for the State,
the community and above all for the rule of law. The State must,
therefore, ensure that various agencies deployed by it for combating
terrorism act within the bounds of law and not become law unto
themselves. That the terrorist has violated human rights of innocent
17 Chaitnya Kalbhag v. State of U.P. AIR 1989 SC 1087
18 1998 Cri.L.J. 2138
6

7. citizens may render him liable to punishment but it cannot justify the
violation of his human rights except in the manner permitted by law.19
National Human Rights Commission has laid down certain guidelines to be followed during and
after encounter whereby, inter alia, the police officer who carried out the encounter must submit
report of the encounter in prescribed form to the State Human Rights Commission and inquiry ,if
necessary, can also be conducted . In these guidelines Justice A.S.Anand, the former Chief Justice
of India of India , rightly stated that “The police does not have a right to take away the life of
person. If by his act , he takes away life of a person he commits the offence of culpable homicide
not amounting to murder, unless such killing is justified under law.”
V. Conclusion -
Thus, from above discussion it becomes clear that police force has right to injure or kill the
criminal , for the sole and only purpose of self defence or where it is imminently necessary for the
maintenance of peace and order. However by no means police officer can be given a right to cause
injury or death of the person, to settle personal feuds or with any ulterior motive ,which could be
apparent from facts of each case. It is the solemn obligation of the state to encourage police force
and deter antisocial elements but at the same time also to punish the murderers in the veil of police.
Similarly there is imminent need to enact a specific legislation to deal with the issue of encounter,
laying down directions to be followed during and after encounter, whereby instances of killing
innocent human beings in the veil of encounters can be avoided and faith in police force can be
reinstated.
Author of this can be reached at:
Cell: 91-98227867631
yuvraj.narvankar@yahoo.co.in
19 Supra note18
7