An Unconstitutional Approval for Encounter

The concept of ‘instant justice’. Isn’t it an enticing one?

Remember the stories of those Kings who used to declare their verdict instantaneously, just after hearing the case from both sides. The guilty party would be ordered to repay the victim or to be hanged the very next day.

Whereas in present times, the courts take the whole damn year just to accept that the crime has taken place. Take the Nirbhaya case, as an example, it took the judiciary whole 8 years to punish the men who had already been proven guilty of their crimes.

Now, who wants to wait that long? Why don’t we just call a Bollywood cop who will not only catch the criminals but also punish them on the spot? Eh?

But the thing is that this ‘instant justice’ will always require the extrajudicial killings (or encounters) of the accused. Now if the accused happens to be guilty of the crimes that require death punishment? That’s alright

But what if the accused was later found to be innocent? Wouldn’t that be a bummer?

Let’s see what the Law of our Country (Code of Criminal Procedure) says in this matter.

Most of the time, all of the encounters are defended by the Government on the grounds that they were spontaneous and unplanned. Simple arguments presented in the court in the Defense of encounters are:

1. Self-Defence, the police/armed forces had to kill the accused to protect themselves from danger.
2. They are entitled to do so under provisions of AFSPA, 1958 or CrPC.

This article just focuses on a provision of Cr.PC., namely Section 46 (3) and how it allows officials to get away from Murder (or Encounter)

Section 46 of the Code of Criminal Procedure

Section 46 of Cr.PC. lays down the procedure of arresting someone. The provisions of the section are reproduced hereinbelow;

46. Arrest how made.
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

According to its sub-clause (2), if an accused tries to run away from being arrested or even attempts to run away, then the police (or any person) authorized to arrest him can use any means necessary to do so.

Necessary Means depend upon whether a reasonable man with no intention of causing severe injury to others, would use the same means.

And Section 46(3) states that;
“Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.”

Now if we read Section 46(2) and Section 46(3) together, it will lead to the meaning that;

“One can cause the death of a person if he is just accused of an offence punishable with death or life imprisonment while trying to arrest him.”

This interpretation has been upheld in various judgements like Harendra Kumar Deka v. State of Assam or Extra Judicial Execution Victim Families Association v UOI (EEVFA).

Constitutional Validity

Article 14 of the Constitution of India states that;

“the state shall not deny to any person equality before the law or equal protection of laws within the territory of India.”

In State of West Bengal v. Ali Anwar, the Hon’ble Supreme Court held that Article 14 applies to both procedural and substantial laws. Although legislation is empowered to create a reasonable categorization of people to meet certain ends.

For ex- Differences in the treatment of TADA offences and White-collar crimes.

However, one test that legislation must pass before creating any category is that of reasonable classification. It must fulfil the following criteria:

1. it should not be arbitrary, evasive or artificial.
2. The basis of categorization must be in some nexus with the target objectives.
3. And the target object in itself must be non-discriminatory as held in Nagpore Investment Trust vs. Vithal Rao and Subramanian Swamy v. CBI

Thus, the provisions of the CrPC are applicable to all persons accused of offences under the Indian Penal Code (IPC), 1860.

Such people form a class. However, reading Section 46(2) and 46(3) together, this class of accused(s) have been further categorized into 2 categories;

— Those who are accused of offences that are punishable with death/life imprisonment.

— And those who are not.

For the latter, the arresting authority cannot use means that involve causing death to effect the arrest. But for the former, the police are allowed to do whatever they can.

In Subramanian Swamy v CBI (supra), while holding Section.6(A) of the Delhi Special Police Establishment Act 1946 to be violative of A.14, it was observed that

“[para 69…]… every public servant against whom there is reasonable suspicion of commission of a crime or there are allegations of an offence under the Prevention of Corruption Act, 1988 had to be treated equally and similarly under the law. Any distinction made between them on the basis of their status or position in service for the purposes of inquiry or investigation was nothing but an artificial one and offending Article 14.”

Similarly, the mere fact that an offence attracts greater punishment cannot be the basis on which one group is subject to a harsher procedure (in this case, death) by the same law. They are all, ultimately, accused of a particular offence and are innocent until proven guilty in a court of law.

👉Thus, the classification is not based on any intelligible differentia and is arbitrary👈

Even if such a classification is held to be valid, it does not have any rational nexus with the object of the CrPC. If one of the objects of the CrPC is that an accused person must have a fair trial in accordance with the principles of natural justice, one fails to see how allowing the arresting authority the power to cause the death of some accused and not others has any connection with the object. In fact, it is entirely contrary to the object of the CrPC.

Article 21 of the Constitution states thus: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

In Maneka Gandhi v Union of India, it was held that the procedure to be established by law had to be fair, just and reasonable and could not be unfair or arbitrary

Further, in Kartar Singh v State of Punjab, it was held that in order for a procedure to be fair, just and reasonable, it had to conform to the principles of natural justice.

One of the core principles of natural justice is Audi alteram partem, or to hear the other side.

It further includes two facets:

1. notice of the charge against the said person and;
2. 2) an opportunity to explain the said charge.

In Nirmal Singh Kahlon v State of Punjab, it was held that Article 21 contemplates the right of an accused to have a fair trial, through a fair procedure and fair investigation.

However, by allowing the arresting authority to cause the death of a person accused of a particular offence renders their rights under Article21 a dead letter as they are denied an opportunity to be heard by an independent adjudicatory authority.

Presumption of innocence is an important concept in criminal law, however, that is defeated if such a power is given to an arresting authority.

For Section.46(3), for death to be caused it must simply be shown that;

1. the accused attempted to evade or forcibly resist arrest and; 2) the person was accused of an offence which was punishable with life imprisonment or death. It must be observed that; 1) the bar is set rather low in the latter case and;
2. one situation involves a legitimate exercise of self-defence while the other can be used vindictively and masked as a procedural defence.

It would be very easy to justify the extrajudicial killings of persons accused of an offence, say sedition, by simply showing that they were attempting to evade arrest.

This is rather absurd and completely antithetical to the rule of law.