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When Is An Encounter Fake ?

After the recent SC judgment on encounter killings, policemen will think twice before whipping out their guns, says Ushinor Majumdar

Bloody end The judgment makes probes into encounter killings mandatory in order to ascertain whether they were staged or genuine

Popular culture has always valourised trigger-happy policemen. Following the crackdown on the underworld in Mumbai in the 1990s, India venerated its encounter-specialists, who delivered speedy justice by eliminating criminal elements in gunbattles. It made for box-office hits, stories of valour, crime and the mafia. Bollywood lapped up these stories, as cops became overnight celebrities and collected gallantry awards from the State.

Cops have maintained that such operations help reduce the flagrant nature of organised crime and terror in the country. But something about the claim has always seemed amiss: the sheer number of people killed in such extra-judicial killings. In 2009-10 the number was 103, which went up to 129 in 2010-11 and then to 197 in 2011-12. In the past four years, 555 cases of  were registered against the  in different states.

This week, the tide turned against policemen as the  delivered a landmark judgment laying down the guidelines for investigations into encounter killings. This could ensure that there are fewer  in the future. To ensure that its orders are followed, the SC has barred awards, medals and promotions to cops until the  into an encounter is completed.

It all boils down to the question of distinguishing upright policemen from the trigger happy ones.

TEHELKA, since its inception, has probed several questionable encounters. At the same time, it has highlighted the plight of genuine heroes who fight crime. Very often, post-facto scrutiny has revealed several people labelled as criminals and killed in encounters to have been innocent.

Taking a cue from the past, the SC’s recent order makes it mandatory for the respective state governments to probe into encounter killings and ascertain whether they were staged or genuine. This is in line with Article 21 of the Constitution, which assures every Indian the right to a free and fair trial instead of summary executions carried out by trigger-happy policemen.

Encounter specialists entered into the common man’s psyche through Bollywood’s chronicles of the ’90s crime scene in Mumbai. In a span of less than two years, the Bombay Police killed 135 people between 1995 and 1997, in one short of a hundred questionable encounters. These killings were never probed into.

In 1997, the People’s Union for Civil Liberties (PUCL) filed a PIL before the Bombay High Court, in which it made several recommendations, including the formation of a State Human Right’s Commission in .

The Bombay HC issued guidelines directing the  to record tip-offs about suspects and criminal activities; registering an FIR and forwarding to a court after the encounter; investigators of the  station to probe the FIRs; and an exhaustive set of rules for the  to follow in such situations, both before and after the operations.

In 2008, after the media reported about  in Andhra Pradesh, the National Human Rights Commission (NHRC) prepared guidelines for these operations and the subsequent probes. It also said that information about encounters should be sent to all State Human Rights Commissions.

When the PUCL filed its PIL before the apex court, the government accepted its suggested guidelines, made cumulative with the Bombay High Court and NHRC guidelines. Lawyers who were part of the proceedings say that there was little or no resistance from the government.

On 23 September, three days before his retirement, Chief Justice of India RM Lodha delivered a stunning judgment in a bid to censure encounter killings. By removing entitlements and initiating an inquiry against the men who lead such encounters, the court has removed any last remaining incentive for a cop to pull the trigger except for self-defence.

The guidelines state that before proceeding to nab a suspect, the  party must record every intelligence input about the suspect’s movement in writing.

This is key to cases such as the controversial 1997 Connaught Place shootout, where the Delhi Police shot dead two businessmen in the heart of the capital. It is said that the main accused and former Assistant Commissioner of Police (ACP) SS Rathi had not conferred with his superiors about the encounter. He claimed that he was working on a tip-off from the  Police about a gangster accused of kidnapping and murder. A Crime Branch team intercepted the two innocent businessmen in their car and fired 33 bullets at them, leaving the two dead at the busy intersection in broad daylight.

Rathi had worked his way up from the post of sub-inspector to ACP of the Crime Branch. The then  commissioner had brought him in to clean up organised crime in the capital.

During the trial, Rathi, who had shot other suspected criminals before, claimed that by the time he had reached the scene, the Crime Branch team had already shot and killed the two persons, despite his directions to the contrary. The Crime Branch team later challenged his claims and Rathi was prosecuted for giving false information to his superiors. He was convicted in 2007 and is now behind bars.

The apex court has also directed that if the encounter results in any death, the must immediately register an FIR and furnish a copy to the nearest court.

This is important in impugned encounter killings such as that of Ishrat Jahan (2004) and Sohrabuddin Sheikh (2005) in Gujarat.

Whereas the Gujarat government continued to maintain that the encounters were genuine, in 2007, amid intense media pressure, senior  advocate KTS Tulsi, while appearing for the state government, disclosed that Sohrabuddin’s encounter was indeed fake. It eventually led to the jailing of the then Gujarat home minister .

The Gujarat Police had accused Sohrabuddin of being associated with a Pakistan-based terror outfit. Independent probes revealed that the  were executing a contract killing at the behest of the Gujarat government. More than 10 policemen, including the then Gujarat DIG, , were arrested in connection with the encounters. Vanzara continues to be behind bars.

The apex court suggested that the superintendent of  of another district could investigate encounter killings and not the same policemen responsible for the death. And the cops involved in the encounter will have to surrender their weapons after the encounter. The policemen found guilty would face both penal and departmental proceedings.

Lawyers point out that if merits and medals are blocked due to prolonged investigations into encounters, it could have adverse effects on the morale of policemen. “Why would a policeman put his life on the line if his actions wouldn’t reap any benefits? He would be reluctant to fully discharge his duties as a law-enforcing officer because the consequences could go either way. And, in the heat of the moment, it is difficult to always act judiciously,” says a senior advocate who has represented a policeman in a fake encounter case.

Faced with armed criminals, a policeman may not have the time to think before he acts in self-defence. However, the SC guidelines, if followed, could diminish the chances of losing more lives, both of suspects and policemen.

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(Published in Tehelka Magazine, Volume 11 Issue 40, Dated 4 October 2014)

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