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4-min read

OPINION | Was the Hyderabad Encounter Genuine? Provisions of Law Make it Difficult to Accept Police Explanation

If the Hyderabad rape-and-murder accused were hit by bullets on lower parts of their bodies, they would not have been instantaneously killed.

Majeed Memon |

Updated:December 6, 2019, 11:21 PM IST
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OPINION | Was the Hyderabad Encounter Genuine? Provisions of Law Make it Difficult to Accept Police Explanation
Policemen stand guard where four accused in the rape-and-murder case were shot dead by police. (PTI)

Early morning today, it was reported that the four suspects involved in the gruesome rape and murder case in Hyderabad have been eliminated in a police encounter, whilst they were taken to the scene of offense in furtherance of investigation. The case of the police appears to be that all four suspects who were in custody were trying to flee and also attacked the police. Factually, it is difficult to accept this theory for more than one reason.

When the accused are being taken out of lockup or prison, they are always taken with adequate guards and under handcuffs. The police team in a case of such gruesome offense would not take chance by inadequately equipping themselves with the weapons. Therefore, it has to be assumed that there were sizable number of escorting people and the accused were taken with handcuffs. There was no question of the accused having any weapons.

In such a situation there was no question of accused attacking the policeman whilst they were also handcuffed. Secondly, assuming that the accused tried to flee, it is settled law that in such a case the escorting policeman is permitted by law to use a firearm, but only to hit them on the lower part of their body to fell them; to avoid their abscondence and not to kill them.

One does not know in the instant case whether all these four persons sustained bullet injuries on the lower part of their bodies. If they were hit by bullets on lower parts of their bodies, then they would not have been instantaneously killed. With these circumstances the case of police men – a genuine encounter – becomes difficult to be accepted.

Having said this, I am hastened to add that this is an extremely serious crime which was being investigated and which had in fact shaken the conscience of all the Indian citizens through the country. This has also accord in the Parliament, where some of our colleagues had even suggested lynching of such suspects. I do not subscribe to that idea because once lynching is made permissible in law, it will open a floodgate of abuse of authority. And it will completely undermine the authority of Rule of Law.

In the instant case, that the wheels of our administration of criminal justice move so slow that even dreaded criminals are not executed for decades, which is a matter of serious concern. The fact that our criminal justice moves with snail’s pace has resulted in two very important factors: a) the criminals have lost fear of law, and b) the victims and the common men have lost confidence in law. In the instant case, I am aghast to find that this is not just a case of rape and murder but it also relates to an important aspect of criminal justice, namely witness protection scheme by the government.

I am told that the woman, who fell victim, was about to give evidence in some matter and she has been treated in a beastly manner to prevent her from giving evidence. Where is our witness protection program?

In fact, I myself have made a few suggestions in relation to improvement in our witness protection scheme in several parliamentary standing committee meetings on Law and Justice. I'm sorry to say that the government has hardly examined those suggestions and has implemented them till date.

In our country, unfortunately, the importance of Article 21 is also undermined because the courts believe that accused if released on bail will threaten the witnesses. Latest case of senior Congress leader P Chidambaram. He had to remain in custody for over 100 days because CBI and ED believed that he is a powerful person and could threaten witnesses. This doesn't happen in other advanced countries. There is no apprehension of an accused released on bail to be abusing his liberty by threatening witnesses as much as in our country. This again suggests that our witness protection scheme is a failure.

In the present case of Hyderabad, instant justice appears to have been done to the satisfaction of a small section of the society. But, if the encounters are fake or stage managed, it does not improve the image of our system. It will have to be necessary to find out, as the law says, that for every police encounter there has to be a magisterial inquiry. We will have to find out whether the case by the policemen is factually true.

Policemen on duty, on the other hand, also need to be protected for the discharge of their honest duties. Section 100 of the Indian Penal Code provides that right to self-defense to be extended to causing death in appropriate cases. Whether the Hyderabad case, where as many as four suspects were killed, would be covered under Section 100 of IPC or not could be decided by the magisterial inquiry by collecting facts.

(The author is a Member of Parliament in Rajya Sabha and the country's foremost criminal lawyer. Views expressed are personal.)

(As told to Aditya Sharma of News18.com)

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