Lok Raj Sangathan President, Justice Hosbet Suresh (Retd.) elaborates on important legal issues.
- The question is not one of terrorist links Ishrat, Javed and others are alleged to have had. The question is how, why and under what authority the Police killed them. Unfortunately, the media debate is confined to the former question and not the latter. Assuming that they had terrorist links, what did they do? Did they take part in overt or covert acts? Question arises whether mere terrorist links, without any act of commission or omission, is sufficient to kill any person?
- What were the police doing? Was it an investigation? If so, who lodged the FIR and when? What does it say? If it was not an investigation, what was it? Was it any dispersal or any unlawful assembly? Obviously, there was no unlawful assembly. Was it a preventive action of the police within the meaning of Section 149 of Criminal Procedure Code? If so, what information they had of these persons committing a cognizable offence? When did they get the information? And what information? Was there any information that at the place where they were killed, they would commit a cognizable offence? Could the Police not have prevented the commission of cognizable offence, without killing them?
- Under what law, the police can kill any person? There is no provision either in the constitution or in the Criminal Procedure Code, giving any right to the police to kill. The only provision, giving any person the right to kill is under Section 100 Indian Penal Code. That is as a matter of private defence. And who decides that killing was justified? The answer is the Court – the Sessions Court. If any one kills any other person, prima-faci it is murder under Section 302 of Indian Penal Code. It is for the accused to plead that it was as a matter of private defence that he had to kill, as otherwise that person would have killed the accused or would have caused injury to the property. The Court, and not the police, would decide whether killing was justified or not.
- In the case of an unlawful assembly, while dispersing the crowd, the police may have to use armed forces, and it may result in death or injury to several persons. In that event there are provisions of Section 130 to 132 of Criminal Procedure Code for an enquiry by the Executive Magistrate. In the present case, there is no question of any dispersal of unlawful assembly.
- Legally, the position is clear. The Police cannot justify killing under any provision of Law. The Police who have killed these persons are patently liable to be charged for murder under Section 302 of Indian Penal Code.
- Mostly, it is the police who select a spot and time, for encounter killings. Generally, there is no witness, and no policeman is hurt. After the killing, it is only the police version. They kill, they decide, and they justify – the police become the investigator, the prosecutor and the Judge!
Justice H Suresh (Retd.)