Custodial Death isn’t an Encounter
Kartikeya Bahadur
With the news of the death of Vikas Dubey, the prime accused in the death of eight policemen in the state of Uttar Pradesh coming in, a common feature of reporting in the mainstream media was calling it an encounter. Dubey was in custody on the basis of a court order and was in process of being transported to UP where the FIR against him had been filed, a routine procedure when someone is arrested outside the jurisdiction of the police station where he was alleged to have committed a crime. But what was not routine, however, was that Dubey ended up being shot by the Police escorts, after he purportedly attempted to flee following the vehicle suffering an accident. Vikas Dubey’s alleged aid was also killed in almost identical circumstances only a few days prior.
What leads to reportage of this incident as an encounter rather than a case of custodial death? To understand the difference between the two one must first and foremost understand what an encounter refers to. In the celebrated 2014 PUCL judgement, the Supreme Court laid down guidelines for investigation of police encounters which resulted in death. The first and foremost guideline is that ‘whenever the police are in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of the grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.’ This is followed by the guideline that ‘if pursuant to the tip-off or receipt of any intelligence, as above, the encounter takes place and the firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered ...’ The court then goes on to lay down how the investigation is to be carried out to ensure impartiality and fairness. Most importantly, the guidelines seem to suggest that ‘encounters’ are situations where the police attempts to apprehend violent criminals and are forced to resort to firing/violence resulting in death. The legal threshold for deciding when the use of deadly force is justified was laid down in the Rohtash Kumar Judgement wherein the court observed that even for the most dreaded of criminals, lethal force can be justified if the criminal launches a murderous attack on the police trying to apprehend him.
In the case of Dubey’s killing, the situation is different from what was envisioned by the Courts. Dubey was in police custody and was being transported by police personnel. The situation of an accused in custody is different from the suddenness associated with an encounter, the subject is already subdued and usually restrained. The section 175 1A CrPC law also mandates that in case of death of any person in custody on orders of a magistrate, a separate inquest is to be carried out by the judicial magistrate in whose jurisdiction such death occurs.
This is not the first case in recent times when an accused in custody has been killed purportedly when he snatched firearms from police personnel escorting them. Recently four accused in a rape and murder case in Hyderabad were killed when they were accompanying the police to the scene of the crime. The Supreme Court in 2019 itself ordered the setting up of a Judicial Commission to look onto the events that transpired, while specifically recording that “it is desirable and necessary to know the truth relating to the incident which has resulted in the death of all the four accused persons when they were in the custody of the police pursuant to an order passed by the Court. In other words, the police were given custody of the four accused persons under a Court order.”
Thus, when every incident of the use of lethal force by Police is called an encounter, the word begins to lose meaning for society. In essence, police personnel being forced to respond with deadly force in an unforeseen assault is not equivalent to someone in their custody being killed during a planned transfer. The biggest threat arising out of such conflation of these two scenarios is that it risks misguiding the public at large about how events unfolded. Interestingly the Supreme Court is currently seized of a PIL seeking compulsory judicial inquiry in cases of custodial death, which states that currently in only 20% of these cases judicial inquiry has been carried out.
The media clamour of calling a custodial death an encounter not only misguides readers, but it completely whitewashes the actual underlying issue, i.e. the failure of the police to ensure the safety of a person in their custody. ‘Encounter’ has slowly turned into a euphemism which conveniently covers even instances of custodial death. Only last month the country was shocked by the custodial death of Jayaraj and Beniks two shopkeepers in Tamil Nadu, and the incident is currently being probed by a Judicial Magistrate under the watch of the Madras HC. The public sentiments on Dubey’s killing are understandably not so strong, considering that he was accused in the murder of eight police personnel, but the obligation of the police to ensure his safety isn’t any lesser. The circumstances leading to the use of lethal force on a person in custody have to be inquired into by a Judicial probe, but in the meanwhile, let’s do the courtesy of not calling a custodial death an ‘encounter’.
