The Flip Side of Simi En­counter ............................

Libertatem Magazine - - Content - By Vaishaki Mud­dana

An en­counter is a generic word used in In­dia, to la­bel ex­tra ju­di­cial killings done ei­ther by po­lice of­fi­cers or by the Army Per­son­nel. In the past, en­coun­ters have been very rare only used in spe­cial cases where the sit­u­a­tion has be­come com­plex or in case of self-de­fense, but from the past two decades i.e., from 90’s on­wards, the po­lice of­fi­cers have en­coun­tered many peo­ple in the cam­ou­flage of ex­tra ju­di­cial killings which have raised doubts in the minds of the peo­ple as to the le­gal­ity of the en­coun­ters done. Every­one has in­nu­mer­able ques­tions in their mind as to whether the en­counter is real or a fake en­counter? What is the cause be­hind fake en­coun­ters?

WHAT IS A FAKE OR STAGED EN­COUNTER?

In the cir­cum­stances where the po­lice of­fi­cers or the Army of­fi­cers had to kill the sus­pect ei­ther when he is un­armed or in the cus­tody in the name of self-de­fense is known as Staged or Fake en­counter. In th­ese sit­u­a­tions, there is a high chance where the of­fi­cers them­selves plant the weapons near the sus­pects so that they can cor­rob­o­rate the en­counter has taken place in self-de­fense.

• On the night of Di­wali, eight ter­ror­ists be­long­ing to Stu­dent’s Is­lamic Move­ment of In­dia (SIMI) which has been banned, and who are fac­ing charges (un­der­trails) for many crimes such as bomb blasts in 2008, cases of loot­ing and da­coity across many states have es­caped the Bhopal Cen­tral Jail in Mad­hya Pradesh. Out of the 8 ter­ror­ists 3 of them have been pre­vi­ously in­volved in the jail­break in Khandwa in 2013.This in­ci­dent has oc­curred around 2-3AM in the night. The of­fi­cials have said that the SIMI ter­ror­ists have used uten­sils such as steel plate and spoons as weapons in or­der to es­cape the prison. Af­ter break­ing through the cell bar­racks, they killed a po­lice guard “Ra­mashankar Ya­dav” who is on duty of sur­veil­lance that day, tied and gagged an other guard who came af­ter hear­ing the com­mo­tion which is be­ing taken place. Af­ter which, us­ing the blan­kets and wooden logs, they have scaled a 10 feet wall out­side their cells and the outer wall, which is of 35 feet height and a wall of 20 feet height sep­a­rat­ing the high risk ward. [Piec­ing To­gether An En­counter BY P. K. HORMIS THARAKAN]

All through this op­er­a­tion of es­cape by the ter­ror­ists none of the guards even those who have been as­signed on the top of watch­tower have no­ticed their es­cape. Al­most af­ter an hour of their es­cape the au­thor­i­ties have no­ticed their es­cape and started the search. On 31st morn­ing around 8-9AM, one Naresh Pal who is an old farmer and a ki­rana shop owner has spot­ted the SIMI ter­ror­ists and has re­ported to the po­lice that there are sus­pi­cious men in the Khe­jra Devi Vil­lage which is only about 10-15 kms from the Bhopal Cen­tral Jail. As soon as the po­lice re­ceived the in­for­ma­tion they reached the spot where the ter­ror­ists are to be seen. Mean­while, the lo­cal vil­lage peo­ple started fol­low­ing the ter­ror­ists who started climb­ing hil­lock by which the po­lice have ar­rived. By 10:30 AM the po­lice have sur­rounded that hil­lock and started their op­er­a­tion. Within an hour the op­er­a­tion has ended and all the eight SIMI ter­ror­ists have been en­coun­tered. [Bhopal jail­break: From es­cape to en­counter of SIMI ac­tivists By Milind Gaht­wai, Dipankar Ghose]

Many videos have been taken and when spo­ken with many vil­lage peo­ple in re­gard with the in­ci­dent, doubts have be­gun to rise in the minds of the peo­ple. As per the ver­sion of the po­lice of­fi­cers they claim that they acted in self­de­fense when the ter­ror­ists fired at them, but the vil­lages say that apart from the sharp­ened weapons which have been made out of uten­sils the ter­ror­ists dint pos­sess any guns in or­der to fire. The vil­lages made state­ments that the ter­ror­ists have tried to throw rocks but they dint see any fir­ing on part of them. They also claimed that they heard sounds of fir­ing but thought that they were com­ing from the po­lice of­fi­cers who are on the other side of the hil­lock. This has to be am­bi­gu­ity will be cleared only af­ter the in­ves­ti­ga­tion has been done.

In one of videos it was heard that the 5 ter­ror­ists were try­ing to talk to the po­lice of­fi­cers and the 3 of them have been try­ing to es­cape when the po­lice peo­ple were asked to sur­round the hil­lock from all the sides. While this is go­ing on it was shown in the video that a gun­shot has been fired. Ques­tion arises here as to why when they were try­ing to talk the gun has been fired?

In an­other video it was shown that a po­lice of­fi­cer has shot a ter­ror­ist from a very close range though it can­not be made out from the video whether the ter­ror­ist is alive or not. But even if one of the ter­ror­ists is alive, will it not be ben­e­fi­cial to the gov­ern­ment to ques­tion him and un­ravel the whole con­spir­acy as to who is be­hind it as the es­cape can­not be pos­si­ble with­out an in­sider help, as it has come to the no­tice of the au­thor­i­ties that the ter­ror­ists pos­sess blan­kets more than they were en­ti­tled to and in a prison of high se­cu­rity and tight rules where each and ev­ery in­for­ma­tion is recorded it is highly im­pos­si­ble to es­cape with­out the help.

It is also im­por­tant to note that the ter­ror­ists have es­caped around 2-3AM and the po­lice got the in­for­ma­tion as to their spot­ting at around 8AM. There have been ap­prox­i­mately 4-5 hours for the ter­ror­ists to es­cape and even if they walk they could have eas­ily cov­ered more than 10-15 kilo­me­ters. This re­mains a big ques­tion to the peo­ple and also as to why all the ter­ror­ists have stayed to­gether in­stead of dis­pers­ing af­ter their es­cape, which would have made the search of the po­lice more dif­fi­cult?

• Af­ter rais­ing of all the doubts, when the in­ci­dent of en­counter should have been a glory mo­ment to the po­lice au­thor­i­ties they are on the stand to take a de­fense so as to prove that the en­counter is le­gal. The au­thor­i­ties re­lied upon Sec­tion 46(2) and 46(3) of Crim­i­nal Pro­ce­dure Code, 1973 where it says that if and when a per­son tries to forcibly try­ing to re­sist the ar­rest, or evad­ing the ar­rest, then such of­fi­cer who is em­pow­ered by the au­thor­ity can use all the means nec­es­sary to ef­fect the ar­rest, in­clud­ing caus­ing of death in cases where the per­son is ac­cused of an of­fence pun­ish­able by death or life im­pris­on­ment.[ Piec­ing To­gether An En­counter BY P. K. HORMIS THARAKAN]

In the past two decades many fake en­coun­ters such as Ishrat Ja­han’s, Sohrabud­din’s, Ma­nipur killing by the Army peo­ple, have taken place and in each of the cases the court has or­dered a ju­di­cial probe. With the raise in the al­leged en­coun­ters there has been a de­mand for ju­di­cial probe to be done where a succession of the Supreme Court judg­ments show that “the law is pro­foundly, even fa­tally loaded against the po­lice of­fi­cers who were found guilty of fake en­counter”

In “Prakash Kadam v. Ram­prasad Vish­wanath Gupta” [(2011) 6 SCC 189] the Supreme Court held that “in cases where a fake en­counter is proved against po­lice­men in a trial, they must be given death sen­tence, treat­ing it as the rarest of rare cases. Fake “en­counter” is noth­ing but cold­blooded, bru­tal mur­der by per­sons, who are sup­posed to up­hold the law.”

In “Satyavir Singh Rathi, As­sis­tant Com­mis­sioner of Po­lice v. State of Cen­tral Bureau of In­ves­ti­ga­tion” [2011] where the po­lice peo­ple have al­leged sur­rounded a car and in­dis­crim­i­nately fired at the oc­cu­pants in the un­til they are dead the court held that the po­lice of­fi­cer were li­able un­der Sec­tion 302 read with sec­tion 34 of In­dian Pe­nal Code, 1860 and the court has also rep­ri­manded the state for not com­menc­ing the in­ves­ti­ga­tion.

This judg­ment has be­come a prece­dent for the fol­low­ing cases and when the case of a fake “en­counter” has come be­fore the court in “Peo­ple’s Union for Civil Lib­er­ties v. State of Ma­ha­rash­tra and Ors.” [2014] The Supreme Court has laid down the guide­lines to pre­vent fake en­coun­ters by po­lice of­fi­cers. The Guide­lines are:

 When­ever the po­lice ob­tain any in­tel­li­gence or tipoffs in re­gard to crim­i­nal move­ments or ac­tiv­i­ties of the crim­i­nal, then it has to be recorded ei­ther in the writ­ten form or in an elec­tronic form.

 If based on the in­tel­li­gence, an en­counter takes place and the po­lice use fire arms and on ac­count which the death takes place an FIR has to be reg­is­tered by the po­lice and that has to be for­warded to the court as per Sec­tion 157 and 158 of Crim­i­nal Pro­ce­dure Code, 1973.

 An in­de­pen­dent CID team to probe into the death which has to meet min­i­mum eight re­quire­ments of the in­ves­ti­ga­tion such as iden­ti­fy­ing the vic­tim, to re­cover ev­i­den­tiary ma­te­rial, fin­ger­prints are sent for chem­i­cal anal­y­sis etc.,

 There has to be a com­pul­sory mag­is­te­rial in­quiry un­der Sec­tion 176 of Crim­i­nal Pro­ce­dure Code, into all the en­counter cases.

 The in­for­ma­tion in re­gard to the en­counter has to be in­formed im­me­di­ately to the Na­tional State Hu­man Rights Com­mis­sion or State Com­mis­sion.

 The in­jured vic­tim must be pro­vided with med­i­cal aid and the state­ment given by the vic­tim has to be recorded by the Mag­is­trate.

 All the doc­u­ments such as FIR, Panch­na­mas, and Dairy en­tries have to be sent to the con­cerned court with­out any de­lay.

 A full in­ves­ti­ga­tion re­port un­der Sec­tion 173 of Crim­i­nal Pro­ce­dure Code has to be sent to the com­pe­tent court.

 In the event of death, then the next kin of the crim­i­nal must be in­formed.

 Re­ports in re­gard to the en­coun­ters have to be sent bi-an­nu­ally to the Na­tional Hu­man Rights Com­mis­sion in a set date and in a set for­mat

 Sus­pen­sion and Dis­ci­plinary ac­tion against the po­lice has to be taken in case of wrong­ful en­counter.

 Sub­ject to the Rights un­der Ar­ti­cle 20 of the In­dian Con­sti­tu­tion, the po­lice of­fi­cer must sur­ren­der his weapon for in­ves­ti­ga­tion.

Po­lice of­fi­cers fam­i­lies must also be in­formed

 For all the of­fi­cers in­volved in the wrong­ful en­counter, there would be no out-of-turn pro­mo­tions or gal­lantry awards shall be con­ferred.

 If the vic­tim’s fam­ily finds out that the above guide­lines have not been fol­lowed then in that case they can com­plaint to the Ses­sions Judge and he will take cog­nizance of the mat­ter.

In “Ex­tra Ju­di­cial Ex­ec­u­tive Vic­tims Fam­i­lies v. Union of In­dia”[2013] the Supreme Court has held that “it does not mat­ter whether the vic­tim was a com­mon per­son or a mil­i­tant or a ter­ror­ist, nor does it mat­ter whether the ag­gres­sor was a com­mon per­son or the State. The law is the same for both and is equally ap­pli­ca­ble to both. This is the re­quire­ment of a democ­racy.” [SC ver­dicts talked tough against se­cu­rity per­son­nel on fake en­coun­ters by KRISHNADAS RA­JAGOPAL]

In Bhopal en­counter case, with so many doubt aris­ing af­ter the videos have been viewed and on the over­all es­cape, a probe is to be con­ducted by the Re­tired High Court Judge “Jus­tice S.K Pandey” and the whole de­tails of the en­counter will be con­firmed when the Na­tional In­ves­tiga­tive Agency com­pletes its in­ves­ti­ga­tion. If the videos are con­firmed to be true then the au­thor­i­ties have dis­obeyed the guide­lines of the judg­ments.

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