How the Indian criminal law interprets encounter killing

The increasing number of extrajudicial killings in India is atrocious. The major form is the encounters criminal advocates in bangalore by police, military, or other security forces which challenge the Rule of Law in a civilized society. Extrajudicial killings manifest outlawed force through which the person is executed illegally. It is a gross human rights violation and the reflection of the apathetic criminal justice system in India.

The recent infamous encounters of Vikas Dubey in Uttar Pradesh and the encounter of 4 accused in the Hyderabad gangrape case in 2019 in India put intense indignation over the functioning of police and the legitimacy of the use of force. Also, it puts a lack of faith in the present criminal justice system among people. The Supreme Court of India has instructed to set up an enquiry for both the cases.

When does it not amount to a criminal offence?
It must be noted that no law in India directly authorises encounters of criminals. The pertinent question that arises here is that in what circumstances a death in an encounter shall not constitute an offence in India. It shall be when:

firstly, if death is caused in the exercise of the right of private defence i.e., under Section-96 IPC (short for Indian Penal Code, 1860);
secondly, if death is caused under Section-100 IPC or exception-3 of Section-300 IPC; or

thirdly, if it is necessary to arrest the person accused of an offence punishable with death or imprisonment for life i.e., under Section-46 CrPC ( short for Code of Criminal Procedure, 1973) which authorises the police to use force, extending up to the causing of death, as the case may be.

Thus, the police officer have the right to injure or kill the criminal for the sole purpose of self-defence or maintaining peace and order. However, nothing must be done with any mala fide or dishonest motive or to settle personal benefit. And if the use of force cannot be justified and death falls outside the scope as per NHRC Guidelines 2010, then it shall be a crime and the police officer shall be guilty of culpable homicide under Section-299 IPC and disciplinary proceedings may be initiated by the concerned Police Department.

Increasing rate of encounter cases
With the above-mentioned provisions in our criminal justice system, there still have been many killings without the sanction of any judicial proceeding. An RTI inquiry revealed that the National Human Rights Commission of India (hereinafter referred to as NHRC) registered a total of 1782 fake encounter cases between the years 2000 and 2017. The state of Uttar Pradesh accounted for the highest number of fake encounter cases, almost 45.55% of the total cases registered and at least 122 alleged criminals were killed in more than 6,000 encounters between March 2017 to June 2020 in the State.

In this regard, NHRC laid down guidelines in 1997 that FIR shall be registered in case of encounter; conduct an immediate investigation on receiving information; grant compensation to the dependant of deceased; and refer the case to other fair investigation agency in case of the policemen belong to the same police station.

However, in 2010, these guidelines were extended by including a magisterial enquiry under Section-176 CrPC in case of death within 3 months and mandatory reporting of all encounter deaths to the Commission within 48 hours of happening. A second report within 3 months must also be sent to the Commission under Section-190 CrPC which includes a post mortem report, findings of the magisterial enquiry, etc.