Disha murder case: The ‘encounter’ must be investigated

S Kalyanasundaram | Updated on January 06, 2020 Published on January 06, 2020

Congratulatory messages have been pouring in for the police and the Telangana government for the encounter   -  Nagara Gopal

Encounter should only take place if they are absolutely unavoidable, and not to satisfy the emotionally charged public by providing instant so-called justice.

The news that all the four accused in the kidnap, rape and murder of Disha in Telangana were killed in an apparent ‘encounter’ is indeed quite sensational.

Congratulatory messages have been pouring in for the police and the Telangana government for the encounter. Many celebrities from the film industry and some politicians are also expressing satisfaction through various public platforms. Social media erupted into jubilation. In the process, it seems that these people are supporting the extra-judicial powers exercised by the police, forgetting that there is a rule of law in place, and the primary principleof governance is to follow due process of law at all times.

Public anger on the perpetrators of a crime of this magnitude is understandable. But that does not empower anyone to provide instant ‘justice’ by shooting the accused. Government machinery has to follow the due process; otherwise it will be jungle law.

Proper procedure

It is a basic tenet in criminal justice administration that every accused must be provided with opportunity to defend him and the criminal action should be proved beyond doubt. We have elaborate procedures in place for these purposes. Allowing the police to short-circuit the criminal justice system will lead to anarchy. Celebrities who are praising the ‘encounter action’ of police without understanding the consequences are doing irreparable damage to public perception.

In ‘People’s Union for Civil Liberties & Another versus State of Maharashtra and Others’ (September 23, 2014), the Supreme Court issued a detailed 16-point procedure to be followed in the matters of investigating police encounters in the cases of death.

There are also guidelines issued by the National Human Rights Commission with regard to ‘encounters’ by police. In the words of former chief justice Venkatachaliah: “Under our laws, the police have not been conferred any right to take away the life of another person”, and “if, by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law”.

There are only two situations in which an encounter can be if death is caused in the exercise of the right of private defence; and under Section 46 of the Criminal Procedure Code, which authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.

An encounter should only be an exception, and not the norm to satisfy the emotionally charged public by providing instant so-called justice.

Real justice is possible only after due process of law; if the accused is killed before conviction, the appropriate punishment as per law cannot be conferred.

One expects the judiciary to initiate a suo moto to know the truth, and decide punishment if the alleged encounter is actually a crime of culpable homicide.

Otherwise, conferring a right to the police to take the life of a person will be a dangerous proposition, which people hailing the encounter must understand.

The writer is a retired banker

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Published on January 06, 2020
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