A relief for the victims of the extra judicial executions

Kh. Tarunkumar *

Supreme Court of India at Delhi

Article 21 of the Constitution of India clearly laid down that "No one shall be deprived of his life or personal liberty except according to procedure established by law." Despite having this constitutional safeguard, various acts of extrajudicial killings have been taking place unabatedly in this so called largest democratic nation of the world where rule of law governs the society. We have come across innumerable newspaper reports of killings of many innocent civilians or persons by the law enforcing machineries in the name of encounters. In a democratic society like ours, no one is permitted to take law in their own hands. It is a well settled principle of law that "howsoever high you be, the law is above you." Once, a person is arrested, he should be brought before the law and the law will take its own course. As per criminal jurisprudence, every accused is presumed to be innocence unless proved guilty and the Supreme Court of India has repeatedly held that the criminal trial is a valuable human right and it cannot be brushed aside by any court of law. When the rule of law collapses, it is replaced by the law of jungle where the big fishes devour the smaller ones.

In many occasions, the Hon'ble Supreme Court of India and High Courts have directed the Union Government and State Government to give monetary compensation to the victims of the custodial violence and extra judicial executions committed by the law enforcing machineries of the state. Now, a new dimension has taken place in the history of Indian Judiciary in dealing with the cases of extra judicial executions what we commonly known as custodial killings or fake encounters. Consoling the victims of the extra judicial killings by way of compensation is well known. In the recent past, the Apex Court by taking a very serious view has started to deal such type of cases with iron hands.

Here, we can cite a glaring case in which the Apex Court condemned the act of extra-judicial executions in the strongest terms. In this case reported in (2011) 6 SCC 189 (Prakash Kadam & Ors. - Vs.- Ramprasad Vishwanath Gupta & Anr.) , some police personnel of the Mumbai Police lodged a FIR at the D.N. Nagar Police Station to show that one Ramnarayan Gupta, a businessman was killed in a police encounter at Nana - Nani Park, Mumbai. On the other hand, the brother of the deceased who is also a practicing Advocate sent telegrams to the Police Commissioner, Thane, Mumbai and New Bombay on the ground that his brother has been abducted by the suspected police personnel and he apprehends that his brother would be eliminated in the false police encounter. After his brother was killed by the police in the abovesaid alleged encounter, he filed a Writ Petition to get a direction from the High Court to the police to register a case in respect of the death of his brother.

After the High Court by its order dated 13/212008 had directed the Metropolitan Magistrate, Railway Mobile Court, Andheri to make an inquiry under Section 176 (1-A) CrPC, the Metropolitan Magistrate after holding the inquiry submitted a report wherein it was found that Ramnarayan Gupta was shot by the police when he was in their custody. The report further revealed that the death had not taken place at the spot alleged by the police and the deceased had not disappeared from the police custody before he was killed but the deceased was abducted by the police. The report also stated that a false FIR was lodged by the police to show that Ramnarayan Gupta was killed in a police encounter at Nana-Nani Park and that FIR was filed to cover up the murder of the deceased Ramnarayan Gupta.

After the inquiry report was submitted by the Metropolitan Magistrate, the Division Bench of the Bombay High Court constituted a Special Investigation Team for investigation of the said case. During the investigation, it was revealed that some police personnel had entered into a conspiracy with some criminals to eliminate Ramnarayan Gupta. While doing so, a Sessions Court granted bail to the accused persons and that order of the Sessions Court was later on cancelled by the High Court.

Against the order of the Bombay High Court, the accused persons filed Special Leave Petitions to the Supreme Court of India. By upholding the order of the High Court, the Apex Court held that the Bombay High Court was perfectly justified in cancelling the bail granted to the accused persons. The accused are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have acted as criminals. The Supreme Court held that the protectors have become predators. It was also held that where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of the rare cases. Fake encounters are nothing but cold blooded brutal murders by persons who are supposed to uphold the law. The Apex Court opined that if crimes are committed by the ordinary people, ordinary punishment should be given, but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.

The Supreme Court warned the police personnel in the following manner - "If a police man is given an illegal order by a superior officer to do a fake "encounter", it is his duty to refuse to carry out such illegal order otherwise he will be charged for murder, and if found guilty sentenced to death. The "encounter" philosophy is a criminal philosophy, and all policemen must know this." In the Nuremberg trials, the Nazi War criminals took the plea that they simply obeyed the orders of their higher officers, nevertheless, they were not forgiven and they were hanged as they were guilty of killing innocent people in cold blood. The worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by the law of the jungle.

In another case of custodial death, one Nandagopal was arrested and confined wrongfully in police custody from 30/05/1992 to 2/6/1992 in Police Station of Annamalai Nagar, Tamil Nadu on suspicion of theft and beat him to death and also gang raped his wife, Padmini in a barbaric manner. After a long criminal trial, the accused police personnel were sentenced to 3 (three) years rigorous imprisonment and fine and 10 years rigorous imprisonment with a fine. Against the said sentences, a Special Leave Petition was preferred before the Supreme Court of India. Upholding the decision of the trial court and Madras High Court, the Apex Court held that the accused should have been awarded death sentence as murder by policeman in police custody falls in the category of rarest of rare cases deserving death sentence. The Apex Court further held that the trial court and High Court have failed their duty as the accused were not charged under Section 302 of IPC even if the accused committed the gravest act of offence. It was also held that policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people.

Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of citizens. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. The Supreme Court of India in its landmark judgment in the D.K. Basu -Vs.- State of West Bengal has clearly held that "Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right, to life of a citizen be put in abeyance on his arrest. These questions touch the spinal cord of human rights' jurisprudence. The answer. indeed has to be an emphatic 'NO'.

In the North-eastern states of India like Assam and Manipur, there were several instances of extra judicial executions committed by the state police personnel and para military forces including Assam Rifles and Army. In one case before the Gauhati High Court. Imphal Bench, one Smt. S (O) Latani Devi filed a case praying for issuance of direction to the Union of India including Assam Rifles authorities by directing them to give monetary compensation to her as her husband was killed by the personnel of the 34 Assam Rifles in a fake encounter.

The Assam Rifles authorities denied her case and claimed that her husband was a member of a banned militant outfit and he was killed in an encounter with them. Because of the disputed question of fact. the District & Sessions Judge. Manipur West was directed to hold an inquiry to find out the' truth. After holding an enquiry, the District & Sessions Judge. Manipur West submitted a report on 31/03/2009 wherein it was held that the husband of the petitioner Sagolshem Vikram Singh was killed by the personnel of the 34 Assam Rifles after he was arrested from the house of the petitioner in the early morning of 03/10/2006. It was further held that the deceased Sagoloshem Vikrarn Singh was not killed in an encounter between the personnel of the 34 Assam Rifles and underground elements. After accepting the findings of the inquiry report, the High Court directed the Union of India and Assam Rifles authorities to give compensation of Rs. 4,00,0001- (Rupees four lakhs) to the petitioner as her husband was killed by the Assam Rifles while he was in their custody without following the procedure established by law. This case is reported in 2010 (4) GLT 625. Besides this case, there are various cases in which the Hon'ble Gauhati High Court have directed to give compensation to the families of the victims of the Extra Judicial Executions committed by the State Police personnel and other para military forces and Army.

Everybody knows that police and other law enforcing machineries are discharging a very onerous duty facing tough situations in controlling the present law and order situations. It is not an easy task to counter with the anti­social activities and. ~anned militant outfits, however, one should keep in mind that police and other law enforcing agencies should discharge their duty within the four parameters of law. All their action should be just, fair and reasonable. They should not act like a criminal. All the directions given by the Hon'ble Apex Court should be followed while discharging their duty. They should not forget that their duty is to protect the life and liberty of the citizens from the anti-social elements. The arms and power given to them is for the protection of the innocent civilians but not to terrorize their lives. Protectors should not be the predators. The .Iaw enforcing machineries should create an environment to convince the public that they are discharging their duties round the clock to protect the life and properties of the citizens and also to keep them safe from the unwanted incidents. Safety of the people is the supreme law of this land.

Every peace-loving citizen of this democratic nation must welcome and thank the aforesaid judgment of the Apex Court rendered in the case of Prakash Kadam. This judgment will be an eye-opener for the delinquent officers to show them that whenever they commit any act of custodial killings, they will not be spared by law. Law will take its oWn course. Whenever any act of extra judicial execution is committed by the law enforcing machineries, the victim's family should promptly approach the competent law court to book the culprits who committed the illegal acts by taking law into their own hands. Victim's family should come forward without any fear psycIJosis in their mind. Certainly, law will come to their rescue. The wrongdoers should not be let scot-free. In the meantime, we would like to remind that people are always ready to extend their co-operation to police in investigation of any crime. The above said judgment of the Apex Court is the Brahma Ashtra gifted by the Supreme Court for the families of the victims of the extrajudicial executions. In the light of the aforesaid judgment reported in (2011) 6 see 189, families of the victims of the extra judicial executions committed by the law enforcing machineries of the state can now approach the appropriate forums to redress their grievances which is provided by the Constitution as well as the law of this land. We should always remember that "howsoever high you be, the law is above you."