Hyderabad encounter killing: Courts must decide if accused should hang, not the cops

After the gruesome rape and murder of a Hyderabad veterinarian last week, the debate on women’s safety in the country has been reignited. The incident, which sent shockwaves through the country and spurred nationwide protests, has led many to question the manner in which the system of policing functions. The accused, who were arrested a day after the incident, were shot dead by the police around 3 am last night. The police said the accused were taken to the spot where the incident occurred in order to reconstruct the crime and that the accused attempted escape. The killings received a mixed response from the public.

Many hailed the cops and rejoiced while others questioned the police’s version of events and called it ‘cold-blooded murder’.  Last night’s events also raise serious questions about the human rights of the accused being violated and the actions of the police. The account given by the police raises several questions. First, the accused would have been handcuffed before being taken to the spot and with sufficient manpower to keep an eye on them. If so, how did all four attempt to escape custody? And if they weren’t handcuffed, hard questions must be posed to the police. Second, why did the police choose 3 am as the time to reconstruct the crime. How far did the accused run before the police opened fire? Chances are scarce that they could have run so far so quickly that the police had no choice but to open fire. Also, let us assume that the accused attempted escape. It is a matter of settled law that in such instances, an escorting policeman is permitted to use his firearm. However, in such instances, the policeman is not permitted to shoot to kill, but to target lower limbs to prevent escape. The police can only use deadly force in self-defence. As per  Section 46 (3) of the Code of Criminal Procedure: Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.  If the death occurs, facts are required to be examined by a court during trial. The police cannot decide for itself. Even if the police narrative is to be believed, there seems to be no justification for opening fire in a manner which killed the accused. All the police involved in this encounter must be booked under the relevant sections of the CRPC immediately. In PUCL vs State of Maharashtra, the Supreme Court issued certain guidelines to be followed in the matters of investigating police encounters in cases of death as the standard procedure for thorough, effective and independent investigation. [caption id=“attachment_7750091” align=“alignleft” width=“380”]  Policemen at the area where the four accused were shot dead. PTI[/caption] Some important guidelines provided by the apex court: (a) encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed. (b) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). (c) A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code. (4) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court. (5) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt. It is also high time to examine pending police reforms, which are urgent and necessary to stop public faith in the justice system withering away. The system of policing suffers myriad deficiencies. From police organisation, infrastructure and environment to obsolete weaponry and intelligence-gathering techniques to shortage of manpower and corruption, the police is not in good shape. The existing infrastructure is also inadequate when it comes to catering to the needs of the force. There is a huge manpower shortage in police departments. This results in overburdened personnel, which reduces their effectiveness and efficiency and also leads to psychological distress, which could lead to criminal acts by cops. The Supreme Court in 2006 also came up with a landmark judgment in the Prakash Singh case, issuing seven directives to the Centre and state governments. That these have not yet seen the light of day reflects the lack of political will and the obstinacy of the bureaucracy. The uncritical endorsement of ‘encounters’ from some quarters is alarming, especially coming at a time when the Uttar Pradesh government of Yogi Adityanath in January listed encounters  as part of its achievements to be highlighted on Republic Day and the Supreme court issued a notice to the state government and called for a ‘detailed hearing’. Last year, four encounters were reported every day. Law abiding citizens who uphold the Constitution must be critical of the hyper-nationalist narrative of indifference towards the means by which the ends of national security are achieved. The authors are students at National Law School of India University, Bengaluru. Dhawan is founding editor of the Law School Policy Review