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Gaining Custody Of The Accused: Rising No Of Encounters In India

Justice delayed is justice denied but the justice hurried is justice buried

On the night of the 2nd July, a team consisting of 10-12 policemen went to arrest the deadly criminal named Vikas Dubey from his Kanpur residence[1]. He had wanted in more than 60 criminal cases of murder robbery etc. meanwhile some policemen gave the input of the raid as a result 8 policemen martyred in the operation. We haven't seen such an action taken by any crime against the police recently.

He was the prime accused in the murder of BJP leader Santosh Shukla who had been given the rank of a minister of state inside the Shivli Police station but 25 policemen inside the police station refused to be a witness against him and session court acquitted him citing lack of evidence as a reason of verdict and this incident is considered the major highlight of his crime career. He had been involved in the extortion business. He never turned back from 2002.

A villager named Rahul Tiwari registered an FIR of an attempt to murder against him and police went to raid his house where his men were ready to attack policemen. They blocked the road using JCB and they fired heavily with automatic weapons. Police formed 25 STF teams to catch him and his home including two cars were demolished in the Kanpur which is an exemplary action though CRPC doesn't give any such provision. CRPC gives the police power to seize or attach any property if they believe the same is been included in any crime. Police are required to submit a report to a magistrate and he will adjudicate how property is to be disposed of according to law. [2]

After a run of almost a week, Vikas Dubey was caught by the police, in Mahakal temple of Ujjain Madhya Pradesh, an STF team was sent to bring him back in UP. While returning his car overturned near Kanpur where he tried to escape and he was killed in self-defense meanwhile police eliminated Prabhat Mishra Amar Dubey and few more in encounters.

How Vikas Dubey was killed raised various uncomfortable questions against the Modus Operandi of the police in our country. Our constitution provides the right to life to everyone, in the landmark Judgement of Maneka Gandhi Vs. Union of India Supreme Court held that every individual has the right to life and that doesn't mean mere existence it should be with dignity and respect.[3]

Supreme court in the landmark judgment of AK Gopalan case held that due process of law should be followed if any person is being deprived of his rights and personal liberty it should be done while considering the provisions of Article 21 of the Indian Constitution and same shall not be arbitrary.[4] It is presumed by many legal luminaries that any person may have committed any heinous crime yet the due process of law is to made available even to the worst human of the earth our belief in human rights constitution demands that no one shall be killed by the police in an encounter.

According to an RTI reply, NHRC registered 1,782 fake encounter cases between 2000-2017 where Uttar Pradesh alone accounts for 44.55% cases that come to almost 750 cases. It is worth mentioning here that the next five states apart from Uttar Pradesh are Andhra Pradesh, Bihar, Assam, Jharkhand, and Manipur. [5]NHRC recommended its government agencies to provide adequate compensation to the families of people who died in such cases.[6]

Coming to the situation of Uttar Pradesh it is believed that the law and order of state deteriorated in the Samajwadi party regime when Yogi Aadiynath became chief minister of UP he explicitly warned criminals of state either their mend their ways or get ready to die. Since 2017 119 accused killed in police encounters in UP to which 74 encounters were given clean chit by in the magisterial inquiry set up by the state government while even 13 policemen lost their life lives in those encounters.[7]

NHRC issued fresh guidelines regarding the intimation of custodial death of any accused which states incase of any encounter same has to be reported to the Human Right commission within 24hr and the post mortem reports inquest request and other essential documents regarding the case has to be submitted to concerned human right watchdog for the further inquiry within the 60 days.[8]

In the year 1997, the chairperson of NHRC MN Venkatachalaiah addressed to chief ministers of all states that in case any policemen found guilty of custodial death he should be tried with the same laws of IPC no special defense should be available to him he should be prosecuted as a normal person without any discrimination.

Supreme Court in PUCL vs the State of Maharashtra and another [9]Laid down 16 guidelines to be followed in case of any encounter inquiry. The judgment was delivered by a 5 judges bench headed by then chief justice of India RM Lodha. The major highlight of the judgment was set up a magisterial inquiry in all death cases in course of police firing.[10] The guidelines by the supreme court don't make it mandatory involvement of NHRC until and unless there is doubt of independent investigation though information of the incident has to be sent to the commission without any delay.

A PIL was filled by a Mumbai based lawyer in the supreme court day before the encounter that there is the probability that Vikas Dubey might be killed in the encounter the petition raised the serious question of extrajudicial killing by the UP police. Till now Uttar Pradesh's government has constituted a one-member judicial commission headed by Shashi Kant Agarwal to probe the different aspects of the case. A three-member SIT has been also formed headed by senior IAS officer Sanjay Bhoosreddy that will look at how Vikas Dubey came to know about the raid and who investigate the role of policemen providing inputs to him.[11]

A similar writ petition was filed by advocate Nandita Bharti in Lucknow bench of Allahabad high court seeking direction to form a judicial commission to investigate the encounter of Vikas Dubey which was dismissed by the court citing that state government has already formed a single-member commission under a retired High court judge.[12]

The nexus between crime and politics is not new, we have seen many instances where many notorious criminals have been directly linked with the political parties of the country and similarly, Vikas Dubey is said to have very strong connections with leaders of Samajwadi and Bahujan Samajwadi party of Uttar Pradesh. Many people strongly believed if he had brought into the police custody he could have spilled many beans of many renowned politicians but at the same time can we afford to ignore the fact many criminals having direct links with big fish political leaders are in jail already but we couldn't take any significant decision against them.

Recently 2judges bench of the supreme court headed by RF Nariman ordered the political parties to publish the criminal background of their candidates contesting in any assembly / general elections. The parties are required to publish the reason that made choose those with criminal records over any other potential candidate for the polls within 48 hours of the nomination. The supreme court gave detailed guidelines that have to be followed by the political parties when they decide to give the ticket to someone having any criminal record.

It is worth mentioning here that the winnability of a candidate cannot be the only reason for the selection. The information regarding the criminal background of any candidate has to be uploaded on the website of the party, social media platforms like Facebook and Twitter, one local vernacular, and one national newspaper.[13] The election commission is given the responsibility by the supreme court to regulate this directive by the political parties.

In case of failure of compliance of the order the president of the respective political party would be held liable of the contempt of court.[14]

Though we already had legislation that bars any criminal from contesting any elections in India. Any individual punished with a jail term of more than 2 years cannot contest in an election for six years after the jail term has ended meanwhile any person facing trail can contest in any election.[15] 233 out of 539 newly elected MPs have serious criminal charges against them. This report is prepared based on the affidavits filed by candidates themselves which means that about 45% of the MPs have been involved in criminal cases. In the year 2009, there were 30% of MPs with criminal records. It is crystal clear even after many guidelines by the Supreme court we have seen an uprise in the no of MPs with criminal records.[16]

Even in the present case of Vikas Dubey, we have seen how he used his political connections to establish his criminal kingdom in Uttar Pradesh that's why this is high time for our political parties and election commission to decriminalize politics. In the Corona era when the police the department has been working very efficiently for the general public, there is still, a police reform that is required to regulate the working of police forces in our country. They are required to held accountable for any ultra-vires action, they need to separate law and order from the investigation the working and living conditions of the police department have to be improved and we need to work on the public-police relations.

General people need to understand Vikas Dubey and even Telangana rapists were killed in the encounter because they tried to flee away from the police only. We can't glorify the killing of any person without the due process of law no matter how dreaded criminal he may be. It is against the spirit of our constitution that advocates the right to life and free legal aid to everyone. Our criminal justice system is based on a reformative approach which is aimed to reform any criminal. In a civil democratic country, we cannot have a retributive criminal justice system which says an eye for an eye is the best possible way.

It is imperative of our lawmakers to come up with certain amendments in the previous law and some new provisions that can speed up slow tired court proceedings in our country.

End-Notes:
  1. The criminal procedure code,1973, section 41
  2. The criminal procedure code,1973, section 103
  3. Maneka Gandhi V. Union of India, MANU/SC/0133/1978
  4. A.K. Gopalan V. State of Madras, AIR 1950 SC 27
  5. Phalguni Rao, Feb 02, 2018, www.firstpost.com/india/nhrc-registered-1782-fake-encounter-cases-between-2000-2017-uttar-pradesh-alone-accounts-for44-55-4332125.html/amp
  6. Protection of Human Rights Act,1993, section 18
  7. Manish Sahu, Apurva Vishwanath, July 11, 2020, www.indianexpress.com/article/India/74probes-complete-in-up-police-get-clean-chit-in-all-6500071/lite
  8. www.nhrc.nic.in/press-release/nhrc-issue-fresh-guidlines-regarding-intimation-custodial-death3
  9. People's Union for Civil Liberties & Ors. VS. State of Maharashtra CDJ 2014 SC 831
  10. The criminal procedure code,1973, section 176
  11. Rajesh Kumar Singh, www.hindustantimes.com/india-news-up-govt-forms-judicial-commision-to-probe-kanpur-ambush-vikas-dubey-encounter/story-odRx9RjUwBHaK6Bkrkc6no_amp.html
  12. www.indianexpress.com/articles/cities/lucknow/vikas-dubey-encounter-allahabad-high-court-dismisses-petition-for-setting-up-of-judicial-commision-6504548/lite/
  13. Public interest foundation and others Vs. Union of India and another LNIND 2018 SC
  14. INDIA CONST, art 129
  15. The Representation of People Act,1951, Sec 8
  16. www.adrindia.org/content/not-parliament-be-proud

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