Encounter Under Section 46 Of Criminal Procedure Code: Boon Or Bane

Author: Ashwini Vernekar Student, Mumbai University

Introduction

Indian judiciary plays an important role in the balance of the society. It is necessary to have proper distribution of power and to suppress misuse of the power by the superior authority which otherwise could lead to imbalance and injustice to the subjects of the state.

With changing society, the laws of the state are weakening and the media is playing a vital role in shaping the emotions of the subjects and the idea of quick or instant justice is increasing day by day which is associated with hard and fast rules. The basic legal principles are not being followed in the shed of other powers.

How is an arrest made under S. 46 of Criminal Procedure Code?

Arrest is considered as an important tool in order to provide justice, equity and good conscience. Arrest would simply mean confining someone or depriving one’s liberty. Section 46 of the Criminal Procedure Code, 1973 deals with the Procedure of the Arrest. In State of Punjab vs. Ajaib Singh, arrest is defined as “Arrest means a physical restraint put on a person as a result of allegation of accusation that he has committed a crime or an offence of quasi criminal nature.”

Section 46 states that, (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 imprisonment for life.

Rights of the Arrested Person

It is necessary to protect the rights of the accused or the arrested person under various laws of the country. Article 21 of the Constitution guarantees the right to life and liberty which can be only deprived in accordance of procedure established by law. Article 14 of the Constitution which talks about the equal protection before law and Article 22 of the Constitution which deals with the rights of the accused person.

Section 55A of Criminal Procedure Code, 1973 lays down the duty on the person having the custody of an accused to take reasonable care of health and safety of the accused. Section 163 provides that no police officer shall offer any inducement, threat or promise as is mentioned in India Evidence Act, 1872. It also provides that no police officer shall prevent or prohibit any arrested person to make any disposition out of his own free will.


Interpretation of S.46 of Criminal Procedure Code and Misuse of Power

Interpreting the section 46 (2) and (3) of Criminal Procedure Code, 1973 it states that if the accused refuses for submission to the custody, the police may use all means necessary to effect the arrest and a right is given to cause death of an accused punishable of offence equivalent to death or imprisonment for life. This right is given for the safety and security of the officials and other subjects of the State. Sometimes, the officials end up taking advantage of the power for their political intention or for the depth of crime committed by the accused. Needless to say, the very recent encounter i.e., “Vikas Dubey Encounter[1]” which had all eyes who was shot by the Uttar Pradesh Police stating that he tried to escape from the custody. Various debates and controversy took place, some supporting the encounter and some against it.

As per the NHRC (herein referred as National Human Rights Commission) report, the state of Uttar Pradesh accounted as the highest number of fake encounter cases almost 122 alleged criminals were killed between the year 2017 to 2020.

For the cause of self-defense or security there must be a reasonable apprehension of threat or danger to body or property of a person and it must satisfy the condition as per the provisions of Section 100 of Indian Penal Code, 1860. So, understanding the circumstances of incident is difficult, a proper investigation of such encounter and punishing the officer if found guilty of culpable homicide would limit and control the extra judicial killing and educating subjects with the “rule of law” and basic rights of every individual can suppress the motivation of such encounters by the police officers.

The question arises that can an administrative authority take in hands the power to punish or to end life of an accused without judicial intervention violating the basic principles like “Audi alteram partem”, “Innocent until proved guilty” and Fundamental Rights of a Citizen as per the provisions of Article 21, Article 14 of the Indian Constitution and so on. On the other hand, the media influencing the people and supporting the injustice for the sake of quick justice or to fulfill social or political motives, such actions alarm gross human rights violation and apathetic legal system in the country.

In the recent case,“Jaipal Bhullar Encounter[2]”, which is now before the Hon’ble Supreme Court, wherein the Court set aside an order passed by the Hon’ble Punjab and Haryana High Court which had dismissed the petition filed by the father of alleged gangster Jaipal Bhullar, who was allegedly killed in a fake police encounter by Punjab police at Kolkata, seeking directions to the State of Punjab to get a second postmortem examination conducted on his son’s dead body.

There have been a lot of cases wherein the validity of S. 46(3) of Criminal Procedure Code, 1973 is questioned, one being “Anita Khushwaha v Pushap Sudan[3], access to justice was considered as fundamental right under Art.14 and 21 of the Constitution of India. Also, if S.46 (3) of Criminal Procedure Code was interpreted literally, the state would end up denying justice to many accused irrespective of the fact that they are innocent or not as every accused has rights under Art.22 of the Constitution of India.

As per the NHRC Reports 2017-18, there were 164 deaths by encounters that year. Earlier NHRC and Supreme Court laid down various guidelines with regard to extra-judicial killings including registering of FIR, investigation, compensation for the dependents of the deceased etc. yet the political and media influence leading to increase day by day a greater number of encounters.

In one of the rape cases in Hyderabad, all the accused for the crime of rape were gunned down by the police officer and later informed that all the accused tried to escape from the custody. The people in Hyderabad supported the encounter as the heinous crime committed by the accused had saddened and had created revengeful mindset while, media endorsed the act of the police officer as heroic which brings down the faith of the people in judiciary. Though, in this case the NHRC demanded serious probe in matter doubting it to be extra judicial killing. However, the large population favored such incident opining the instant justice.

It is important to note that a justice cannot be served by emotions but by abiding the laws of the country and the judiciary. Excessive powers to the administrative authority would lead to destruction of the faith in judiciary and the police authority might end up deceiving the law with the sole excuse of the self-defense.

Conclusion

Every encounter case must be independently investigated and stricter actions must be taken in regards to the same. It would be appropriate for the Law Makers to amend a particular section, or for the court to read down and/or to interpret the section to mean that under the grab of the procedure, the death of the accused cannot be caused. It is necessary to adhere to the guidelines of the Hon’ble Supreme Court [4]and NHRC. There should be no interference of police or the political people when it comes to investigation of the matter of encounter. The credibility of the courts and rule of law should always prevail.

[1] https://www.indiatoday.in/india/story/encounter-erupts-as-vikas-dubey-tries-to-escape-upon-reaching-kanpur-report-1698900-2020-07-10;

[2] https://www.livelaw.in/top-stories/jaipal-bhullar-encounter-punjab-police-supreme-court-ph-hc-to-hear-fathers-plea-for-second-postmortem-175944;

[3] https://lawtimesjournal.in/anita-kushwaha-vs-pushap-sudan/;

[4] https://www.drishtiias.com/loksabha-rajyasabha-discussions/in-depth-encounter-supreme-court-guidelines;

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