JUMPING THE GUN?

By Sanjay Pinto

It’s a predictable end to a cop-robber chase in India. In movies and in real life. The criminal is either on the prowl or tries to escape from custody (usually on the way to court) or there is a clash and the police fire in ‘self defence’. The gangster is killed (usually with bullet wounds on the head and chest). A few (usually two) cops are injured (usually on the left hand and waist) . The Police Commissioner visits his wounded soldiers (usually Inspectors or Sub Inspectors) in a Govt hospital, the photographers click pictures of them receiving refreshments (usually apples, sweet limes and Marie biscuits) There is a media briefing after every encounter with the top cop claiming that the police party opened fire in self defence. Journalists all try to punch holes in the police theory (usually speaking at the same time and in English and the vernacular language) with questions like ‘Couldn’t you have caught them alive?’, ‘Why are there bullet wounds only in the head?’ . The Commissioner would often face enough provocation to put his boot in his mouth. The media reports are scathing. Human rights activists scream ‘murder’ from rooftops (usually when hardened criminals are involved). The case is handed over to the Crime Branch. Public interest litigation is kickstarted in the High Court demanding a CBI probe. There are impleading petitions filed as well. There is a Commission Of Enquiry (you can sometimes guess the name of the head, depending on the political regime!)  There are TV debates with anchors trying to out shout  activist guests. Newspapers carry editorials, the common man puts up angry posts on the social media and there are columns by ‘experts’!

Hello and welcome to the same old story!  Police encounters are routine in every State. Data from National Human Rights Commission Reports point to the registration of 1224 fake encounter complaints from 1993 to 2009. Is an ‘encounter’ always an euphemism for staged murder, a short cut to closing a case? Or are activists over react sitting on  arm chairs in  their ivory towers?

The Madras High Court is hearing a  public interest petition seeking a CBI probe into the recent gunning down of five gangsters in Chennai who were on the run after robbing two banks at gun point. A slew of petitions have been filed to counter the original plea. Interestingly, there has been overwhelming public support for the police action. In his counter affidavit, the Chennai Police Commissioner insists that the nomenclature of an ‘encounter’ in its strict sense does not tie in with the Chennai shoot out which he claims was firing in self defence during an attempt to arrest criminals identified  by victims after a laborious gleaning of close circuit television footage. This is perhaps the first time that the police has stuck to its guns in a legal battle.

Over to the debate. For starters, the police has no business to punish anyone. Their job is to arrest law breakers and bring them to trial. Neither is it the role of activists to sit in judgment over what is a genuine case of self defence induced killing or staged murder of a suspect. The problem primarily arises when both sides exceed their brief. That the men in khakhi are known for their brutality or at least widely perceived to be so,  loads the debate against them making what may well be an honest account of what transpired, seem like a cover up.

The Indian Penal Code does not mention the word ‘encounter’. It only deals with culpable homicide and murder from Sections 299 to 304. A ‘criminal’, whatever the police files may contain, is only an accused individual, whose guilt has to be proved in court beyond the shadow of doubt. Nothing in the law gives the police a licence to kill. There are instances of mistaken identity – of innocent persons gunned down in fake encounters. Planting weapons is not all that difficult.  A disturbing fact, many fear,  is that in our criminal justice system it is perhaps easier to kill than to prosecute. The temptation to dish out street justice is dangerous. There are also apprehensions that encounters are staged in order to get medals and bravery awards. And in some cases, the ‘glory’  is cornered by a top cop for an act of a subordinate officer. The Supreme Court’s notice to this possible practice was drawn by petitions filed by activists with the suggestion of a blanket ban on decorating an officer for an encounter killing. The trick of registering an attempt to murder case against the slain persons and then closing it later citing their death has also been frowned upon. 

Last year, the Apex Court hearing a plea from Sushila Devi , the wife of an alleged don Dara Singh, who was shot dead by a Rajasthan Special crack team,  even went to the extent of  asking why  a fake encounter shouldn’t be treated  as a ‘rarest of rare’ case of murder entailing the noose for the guilty men in khakhi. The logic:  "If crimes are committed by ordinary people, ordinary punishment should be given but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.”. Strong observations but can police officers be treated as a separate class of citizens? And would that run counter to constitutional principles? Or do we merely need to have a different yardstick for fake encounters of innocent persons with no criminal antecedents like some cases in Gujarat and the killing of  the ‘Most Wanted’ brigade where the police version of self defence cannot be brushed aside?

The  law is not lopsided. There are four exceptions to murder that could come in handy for the police. Culpable homicide is not murder in the event of grave and sudden provocation, a sudden fight, while exercising the right of private defence in good faith and in the course of the lawful exercise of power by a public servant for the advancement of public justice. In quite the same manner, obstruction of a police officer in the performance of his duty is also an offence. And when it comes to self defence, the doctrine of proportionate force is crucial. If the opposite party has a small blade or knife, shooting him is unwarranted. And there is a difference between shooting to kill and shooting to disarm. Technology today gives the law enforcers tools like tear gas and rubber bullets to disarm and immobilise criminals. Or how about the police party using button cameras to possibly record the actual incident as it happens? Why they are not usually used remains a mystery. Talking of shooting to kill, it’s important to have a basic idea of how firearms work. During arms training, a basic instruction, I gather from sources, is to take what is called ‘half a breath’ before pulling the trigger as even the slightest movement of the arm while breathing can determine whether the bullet hits the head or the thigh! 

It’s not always the police who can be accused of jumping the gun. Civil society is also often guilty of adopting double standards. Imagine a scenario when the cops locate the hideout of a dreaded criminal and in full public glare, the gangster opens fire and escapes. Or worse, takes a member of the public hostage. Even worse, kills the hostage. How would society react? There are bound to be sarcastic comments like ‘are these real men in khakhi?’ ‘Were they carrying toy pistols?’ ‘How can we feel safe if we have cowards paid to protect us?’ But when the police use bullets, they end up in the firing line of activists! Damned if they shoot, damned if they don’t? Why are police officers provided with service revolvers? Surely not as ornamental show pieces.  After the encounter killing of a van driver in Coimbatore accused of  raping and murdering two school children, I remember a parent saying on my news show ‘The Big Question’ on NDTV Hindu :  “today is my Diwali”. Is that a reflection of the delay in our criminal justice system? Or the disenchantment over what some consider ‘lenient’ bail provisions? And on the  silence of the Indian Penal Code on ‘encounters’  a court scene in a Tom Cruise classic ‘A Few Good Men’ comes to mind. The prosecutor asks a witness as to whether a military manual mentions the ‘Code Red’ (an order to deal with a delinquent trainee leading to his death), the defence attorney snatches the book and retorts :” Does it mention where the mess hall is?  It doesn’t right So you mean in your entire stint you never had a meal?!”

I also often wonder why activists conveniently forget about victims of crime and take up cudgels for perpetrators? Do victims not have human rights? Does a bank manager who has a gun pointed at his temple by dacoits not have human rights? Does a sole breadwinner of a family locked up by gun totting robbers who loot a bank not have human rights? Does a middle class father who loses all his savings in a bank meant for his daughter’s wedding not have human rights? Does a man in uniform who walks past a door in a hideout of criminals not hurling ice cream cones but firing bullets from  illegal country made weapons not have human rights? Human rights are for all.

The National Human Rights Commission’s guideline that every encounter must be investigated as a potential case of murder can be an adequate safeguard only if State police departments fall in line and intimate the Commission of every custodial death. And ‘custody’ is to be interpreted in a wider sense to include ‘control over.’  But the police is entitled to the benefit of doubt. There must be patience for the outcome of an honest enquiry. Sweeping generalisations are a national pastime. General distrust of the police is another reality. And whether a CBI probe is the only ‘independent’  and ‘neutral’ route may well hinge on political configuration! The debate can only end if these issues are addressed. Till that happens, it’s fair for the experts to say ‘Judgment Reserved.’