Recently, Assam has been witnessing episodes of encounters where accused criminals were mostly drug peddlers and cattle smugglers.
Assam Police has been involved in more than 30 encounters in which 12 accused have been gunned down.
Justifying the encounter spree, the department stated that the accused tried to flee from the police or they tried to snatch police personnel’s firearm.
Headline8 spoke on this matter with Guwahati High Court senior advocate, Bhaskar Dev Konwar. He stated that the Indian constitution has no place for custodial torture or fake encounter.
Under the Section 46 of Criminal Procedure Code (CrPC), a police officer can open fire into an accused under three circumstances:
1. Self defence: if there is a threat to the life of the police person or if the accused can inflict harm to a person then he is obliged to open fire as a self defence.
2. If the person is accused of serious case like rape, murder and he/she tries to flee, then to stop that person from fleeing, police can open fire.
3. A police personnel has been given the freedom to open fire if the accused tries to snatch the weapon of a security personnel.
However, one can assume that a police official is also trained to handle a criminal or accused.
“A police personnel is trained to handle such a situation where the accused tries to snatch the fire weapon.
During the training period, a police official is taught how to transfer an accused from court to police station or how to escort him to the crime scene for recreation of the crime.” Bhaskar Dev said.
If an accused is successful in fleeing from police or is able to snatch the weapon from a police official, then as per the law of India, the police personnel is also guilty of negligence of duty. And as per Indian judicial system, departmental actions and enquiry must be taken against such an official.
Expressing concern over the encounter in Assam, the senior advocate said –
“Since the formation of the new government in Assam, there has been an increase in the number of encounters.
The state has been frequently witnessing episodes where police shoot the accused criminals which are mostly drug peddlers, cattle smugglers and cow thieves. When asked, the state police has only one excuse – either the accused tried to flee or the accused tried to snatch fire arm of a police official.”
Moreover, Assam Chief Minister Himanta Biswa Sarma himself stated that shooting should be a pattern.
According to Indian law this statement can be considered as an encouragement to the police department to conduct unnecessary encounters.
In the past also there have been many incidents in Assam where police officials have misused their constitutional powers. Many accused have died in lockup for which the High Court has ordered compensation to the deceased’s family members.
When asked about custodial deaths and custodial deaths in Assam, Bhaskar Dev stated that there have been many reported cases of such incidents in Guwahati High Court.
“If these fake custodial deaths and encounters become a pattern, then there must be a proper judicial enquiry or investigation.
As per Indian law, an official is bound to answer the queries on the circumstance under which the encounter was conducted. Till a proper enquiry or investigation is not done, it is very hard to declare whether the encounter is fake or real.
One such way to check such incidents is to take into account the number of bullets fired during the encounter and if possible, empty cartridges must be collected.
Body cams must be used by police personnel for escorting the accused and also while taking the convict to the crime scene for recreating the crime.
All these procedures must be followed for further justification if any circumstances arise.”
Bhaskar Dev also informed Headline8 that the Indian legal system has been established on the grounds that an accused is presumed innocent until he/she is proved guilty.
An unlawful arrest is the violation of Article 21 of Indian Constitution.
If an officer is proved guilty of fake encounter or custodial death then he is liable to face not only departmental proceeding but can even face trial under murder charge.
Assam Police department must follow proper judicial procedure while investigating whether an accused is guilty or not.
As per Article 21 of Indian Constitution –
“No person shall be deprived of his right to life and liberty without following the process of law.”
When a person is arrested, he/she must be produced to the nearest magistrate within 24 hours.
They must take note from the proper procedure followed while punishing international terrorist like Kasab.
Bhaskar Dev also perceived that the state police department must refurbish their training once again.