This article is written by Ribya Ridhi Sharma, a First year B.A. LLB (Hons.) Student of Ideal Institute of Management and Technology (Affiliated to Guru Gobind Singh Indrapastha University), Delhi.
Vikas Dubey Assassination: Encounter or Murder
“When you have police officers who abuse citizens, you erode public confidence in law enforcement. That makes the process of good police officers unsafe”
― Mary Frances Berry
The disagreement that used to be offered for the popularity of encounters focused on the shortfall of the felony system. Cases take a while to return to trial. In the short-time period gangsters are given bail and recommence their crook activities. Even Dawood Ibrahim, it is often pointed out, was out on bail when he fled of to Dubai.
Moreover, most cases depend upon witnesses. In India, the police dearth the assets to defend witnesses so by the point the case comes to trial, the witnesses were intimidated into changing their testimony.
Much of the translation surrounding the killing of gangster Vikas Dubey combines two separate issues. The first is the whole business of encounters, in which policemen murder suspects in custody and then pretend that they were shot while being caught or while escaping. The second is the killing of Vikas Dubey and what it speaks us about the state of law and order in India, the shameless nature of custodial deaths in today’s India. The killing of Vikas Dubey in police custody justifies every doubt and every reservation that has been expressed about our willingness to turn the police into executioners.
From what the police themselves have informed the media, Dubey was a gangster with political links and assist and had ties to the police department. These ties allowed him to flourish for years and to disregard the many instances that had been registered towards him.
In early July, a police party that went to arrest him, were trapped and eight policemen lost their lives. The UP police said then that Dubey had been tipped off by one of its own men. In the week that followed, the UP Police showed strangely their disability to arrest him. Various people having closed links with Dubey were caught and killed on grounds of “trying to get away from custody”. Eventually, Dubey was arrested in Ujjain on 3rd July 2020. There is still some doubt about whether he was arrested by the Madhya Pradesh police or whether he arranged to give himself up in a very public place to ensure that he was not shot “while trying to dodge arrest.” During the arrest process, Vikas Dubey becolame keen to set up his identity, shouting his name out so that every bystander knew that he was taken alive.
Till that point, it had been broadly speculated that the UP police might kill him due to the fact that he knew far too much about the policemen he paid off and the politicians who had stored him in business.
But once he turned up and caught alive and on camera, that became difficult to do for police but UP police killed him anyway. They shot him at the time of transporting him from Ujjain to Kanpur on 3rd July 2020, and then offering the same old story that he had been shot while he was trying to get away.
Journalists and common men have talked about many holes within the police version. The police claimed that the car Dubey was in had upturned. In fact, video footage indicates that Vikas Dubey was in another car. More informatively, there were reporters following the police convoy. They had been stopped 20kms earlier than the “encounter” in order that they couldn’t see what simply happened.
We have now reached the situation that the legitimization of encounters necessarily leads us to the place wherein police can kill anybody, even when it is obvious that they have got a clean motive: the person ought to reveal statistics that might damage the political and law enforcement establishments.
The issue that matters is: Have we reached that level in the country in which politicians can stand by with such gangsters and then, when things get awkward, ask the police to bump them off even if whole country has an eye on the matter? The killing of Vikas Dubey suggests that the answer is manifestly ‘yes’.
Even State can’t violate right to life and duty to follow system established by law under Article 21.
There is a belief that an accused is innocent until proven guilty. The legal burden of proof rests at the prosecution to show that the accused is guilty of the offence via adducing credible evidence and proving the same in front of court. The criminal justice administrative machine in India is based on this principle.
When someone is alleged to have committed a crime, the police have the authority to sign up an FIR under Section 154 of the Criminal Procedure Code (CrPC) and start investigation. In the procedure of engaging in investigation, the investigation officer has the power to arrest the accused. Section 46 of the CrPC stipulates as to how an arrest must be made. Sub-Section three of Section 46 contemplates that nothing inside the Section offers a right to cause death of a person, who isn’t always accused of an offence punishable with death or imprisonment for lifetime. It implies that right to cause death of a man is given to the police officer in case a person is accused of a crime punishable with death or with imprisonment of life time, in case he tries to evade the arrest.
In depth, order handed on September 23, 2014, the Bench of then Chief Justice RM Lodha and Justice RF Nariman first of all highlighted that the right to life under Article 21 is available to everyone and that even the state has no authority to violate this right.
Pertinent observations have been made to this effect in the judgment authored by Justice (retd.) Lodha include:
“Article 21 of the Constitution of India guarantees “right to live with human dignity”. Any violation of human rights is viewed seriously by this Court as ‘right to life’ is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.
… The Court has stated several times and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.”
Encounter killings must be examined independently as they affect trustworthiness of the Rule of Law.
The Bench continued to highlight why it is essential that encounter killings by the police must be investigated independently.
“… killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.”
Although the Bench clarified that they were aware of the difficult and delicate task that the police are expected to perform in tackling crime, it emphasised that even criminals must be brought to justice by following the rule of law.
“We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society 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 rule of law.“
To ensure accountability, the Bench decided that guidelines were warranted to ensure the independent investigation of encounter killings by the police.
Supreme Court Guidelines issued for the investigation of encounter killings
After perusing suggestions made by way of the Bombay High Court, PUCL (via Advocate Prashant Bhushan), submissions via Amicus Curiae Gopal Sankaranarayanan, and the NHRC, among others, the Supreme Court eventually issued the following guidelines:
(1) Whenever the police are in receipt of any intelligence or tip-off concerning crook movements or sports referring to the fee of a grave crook offence, it will be reduced into writing in some form most probably case diary or in some electronic shape. Such recording need not disclose information of the suspect or the place to which the party headed. If such intelligence or tip-off is received via higher authority, the same can be stated in some form without revealing information of the suspect or the location.
(2) Registration of the FIR.
(3) Independent inquiry by using CID or police crew of different police station.
(4) Magisterial inquiry beneath Section 176 of CrPC.
(5) Involvement of the NHRC isn’t necessary unless there’s severe doubt about unbiased and impartial investigation. However, the records of the incident without any interruption must be dispatched to the NHRC or the State Human Rights Commission.
(6) The injured criminal/victim need to be provided medical related useful resources and his/her statement must be recorded via Magistrate or Medical Officer and provide with certificate of fitness.
(7) It need to be guaranteed that there may be no postponement in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
(8) After complete research into the incident, the file must be sent to the position court following Section 173 of the CrPC.
(9) In the event of dying, the subsequent of kin of the alleged criminal/sufferer must be knowledgeable on the earliest.
(10) In every six months’ statements of all cases in which deaths have occurred in police firing need to be dispatched to NHRC by using DGPs.
(11) If on the conclusion of investigation, the materials/evidence having come on record show that the death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.
(12) As regards compensation to be granted to the dependents of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.
(13) The police officer/officers connected to the matter must give up his/her guns or the weapons for forensic and ballistic analysis, including some other material, as required by investigating team, challenge to the rights underneath Article 20 of the Constitution.
The Supreme Court brought that these pointers would also be applicable, as much as possible, to instances of grievous injury because of police come upon as well.
Vikas Dubey Assassination: Encounter or Murder
When the state takes away a person’s liberty, it shoulders full duty for protecting their human rights. The most fundamental of these is the right to life. Each year, however, many people die in custody or in encounter. Custodial crimes infringe upon human rights and the declaration of guilt so extracted often fails to stand the legal scrutiny. Violence of any kind at the hands of police or any governmental or non- governmental agencies is counterproductive. It can turn innocent suspects or prisoners into hard core criminals. The grudges they have against any particular official sometimes motivate them or their family to rebel against the whole country and its citizens.
Therefore, custodial management is very important to overall jail management program so that the authorities are able to accomplish the mission despite various challenges. The government need to re-educate the police out of their sadistic arts and inculcate a respect for the human being, a procedure which must begin more by example than by exhortations. If any policeman or for that matter any other officer of any other agency of the government is found to have misconducted, the authorities should not hide the crime under the pretext of police solidarity or brotherhood. Custodial violence and for that matter encounters are amongst the worst crimes in any civilized society.
It is a blatant violation of human dignity. It attacks at the very roots of the rule and law. Third degree torture and custodial deaths, rape, molestation etc. have become an essential part of police investigations and the injury inflicted on the inmates is sometimes unbearable.
Spirit of custodial management comes down to three crucial objectives:
1-Protecting the safety of the prisoners, jail personnel and visitors
2-Preventing property damage and loss
3- Preserving inmate rights
Vikas Dubey Assassination: Encounter or Murder