The reason given by Andhra Pradesh's Red Sanders Anti-Smuggling Taskforce that they feared for their own lives and shot dead 20 woodcutters from Tamil Nadu is hardly a legal defence, especially when the Supreme Court has held that the act of extra-judicial killing by the police, if not justified, amounts to culpable homicide.
It is not an offence for a police officer to use force in private defence, but Section 46 of the Criminal Procedure Code, dealing with the procedure of arrest, mandates that a police officer has no right to “cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”.
The law further mandates that a police officer should use only “reasonable force” to arrest an offender. In this case, the police resorted to fatal force to counter stones and sickles allegedly hurled at them by the woodcutters.
In its 2012 decision in Om Prakash versus State of Jharkhand, the Supreme Court categorically warned “trigger-happy” policemen that “it is not the duty of police officers to kill”, even dreaded criminals.
“Undoubtedly, the duty of the police is to arrest an accused and put him up for trial. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism,” the apex court held.
In its latest judgment in 2014 on police encounter deaths, the Supreme Court acknowledged that fighting crime is tough, but that by itself is no excuse to resort to extra-judicial killings in a civilised society.
“We are not oblivious of the fact that police in India have to perform a difficult and delicate task, particularly, when many hardcore criminals, extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society," it observed.
"But then, such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following the rule of law,” the bench of then Chief Justice R.M. Lodha and Justice Rohinton Nariman said in their September 23, 2014.
The judgment dealt with a batch of PILs filed by NGO People’s Union for Civil Liberties in 1999, questioning the genuineness of 99 police encounters in Mumbai which led to the death of 135 persons between 1995 and 1997.
The verdict said that “policemen would not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians.”
The court held that the “right to live with dignity applied to all” and an independent and thorough investigation into every encounter death is necessary “restore the faith of the public in the police force”.
The 2014 PUCL judgment re-visited the NHRC’s revised guidelines of 2003 to lay down the law on police behaviour in case of encounter deaths through a series of procedural requirements to be followed strictly.
Among these, the Supreme Court held that no police officer should be given out-of-turn promotion or gallantry award immediately after an encounter death. The probe into an alleged encounter should be by an independent agency like the CBI. It has to be scientific, well-documented and decisive as to the nature of death in question.
Further, the probe should be open to a Magisterial inquiry and any dissatisfaction about its fairness could be challenged before a Sessions judge.