encounter
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This is a case brief on the Ishrat Jahan Encounter case, 2004 written by Niharika Goel, student of VIPS, Guru Gobind Singh Indraprastha University. The article represents the legal scenario pertaining to encounter killings and right to fair trial in the light of Ishrat Jahan Case 2004, scrutinizes the reasons behind fake encounters, and provides steps of prevention as recommended by the 14 point program of Amnesty International. 

Introduction

This was an ongoing case in the court of Ahmedabad which put forth two aspects of an encounter that surfaced in the year 2004. One aspect demonstrated a successful lawful encounter of four operatives of the Lashkar-e-Taiba (LeT), who were plotting a suicidal terrorist attack to assassinate the then Chief Minister of Gujarat, Narendra Modi. The other aspect of the case accused the Ahmedabad police crime branch and members of the Subsidiary Intelligence Bureau (SIB) of Ahmedabad, of staging a deliberate encounter under the shadow of the UPA government. In July 2013, the CBI filed the first charge sheet in an Ahemdabad Court, declaring that the encounter was staged, but remained silent on the deliberation whether Ishrat Jahan was an LeT Associate or not. The entire affair developed into a political altercation between the Congress and BJP, turning into a series of controversies and dissension.

The situation of such pertinent question turns into a legal dilemma where one section applauds the police administration for immediate justice, while others raise questions on its authenticity. Since India holds a dubious record of encounter killings it becomes counter-intuitive to not scrutinize every encounter with a lens of suspicion.

Reasons behind fake encounters

There must be a perspicuous justification that a person with the stature of a public servant stoops down to kill an offender under a fake regime. The foremost reason that that can be comprehended in a country like India is certainly the impatience of the citizens with the fundamental principles of criminal justice. The main reason attributed to apprehension of relief over police execution is the lumbering pace of the Indian Judicial system. It must be an unfortunate adversarial system that police execution and fake encounters lead to rejoicing amongst the citizens of India putting forth the paradigmatic functioning and delay in justice by the courts.

Trials drag on for years, with uncertainty of the outcome particularly involving criminals or offenders including political power who also manage to win elections behind bars. Political pressure seems another reasons for encounter of such dreaded criminals who hold multiple records of heinous crimes against them including rape. These criminals manage to roam around either on bail or under lack of evidence since they instill apprehension of danger over anyone who holds strong witness against them. 

Facts of the case

Jishan Johar, Ajmad Ali Rana, Javed Shaikh and Ishrat Jahan were the four victims killed in the encounter, where the first two were recognized as Pakistani Nationals by the police, and Shaik as a source of their local network. Around 11 pm in July 2004, a personal source allegedly informed the police about the said victims travelling to Ahmedabad from Mumbai with firearms and explosives, as a plot to assassinate Narendra Modi. The entire situation led to a car chase ending in a barrage of gunfire, killing four victims by 5 am the next morning.

The controversy, however, began when the fourth victim was later identified as a college student from suburbs outside Mumbai, and her connection with the rest of the three victims stood abstruse. Ishrat Jahan, the aforesaid victim, was identified as a second year Bachelor of Science student at Mumbai’s Guru Nanak Khalsa College.

To cover expenses after her father’s death, Ishrat worked as a private tutor for children but had also allegedly worked for Javed Sheikh, handling his accounts as a secretary. However, David Headley, one of the 2008 Mumbai attacks conspirer, later stated, during an FBI interrogation, that Ishrat Jahan was a sacrificial aspirant working for someone named Muzammil Butt, and that she was targeting the Chief Minister of Gujarat, Mr. Narendra Modi under the directions of Lashkar-E-Taiba Terrorist organization.

The case in the month of July 2004, got subjected to media trials, bringing forth a news report from Lahore based Ghaza times, a declaration of LeT claiming Ishrat Jahan as one of their operatives. Meanwhile, in August, Ishrat’s mother filed a writ petition in the Gujarat high court seeking a CBI inquiry into the staged encounter, followed by a submission of report by the Assistant Commissioner of Police claiming the encounter as genuine. 

The court headed by a Metropolitan magistrate, who later released a 248 page report accusing Ahmedabad city crime branch of a fake encounter, ordered a judicial enquiry. The judicial enquiry was later commanded by a three-member special investigation team (SIT), while Lashkar-e-Taiba, startlingly, issued a public apology for erroneously claiming Ishrat Jahan as an operative. To a downright surprise, the 248-page report was slammed as ultra vires, and the Metropolitan Magistrate was accused of exceeding his jurisdiction.

On 21st February 2013, CBI arrested Gujarat IPS officer G. L. Singhal then Assistant Commissioner of the Police Crime Branch, with reference to the alleged fake encounter. The CBI in its FIR alleged that Singhal, now Superintendent of Police at State Crime Records Bureau, played a lively role within the fake encounter deciphered by the Special Investigation Team (SIT) constituted by the Gujarat Supreme Court. CBI had formerly arrested senior cops Tarun Barot, J. G. Parmar, N. K. Amin, Bharat Patel and Anaju Chaudhary. However, even after the mandatory 90 days, CBI didn’t file their chargesheet in the case, all the accused were released on bail, except Amin. CBI court issued a bench warrant for an additional accused Additional DGP (Crime) P. P. Pandey, who later filed an appeal in the Supreme Court to get the FIR cancelled.

On 4 June, suspended IPS officer D.G. Vanzara was arrested by the CBI, from Sabarmati Central Jail in Ahmedabad, where he was lodged as an accused in Sohrabuddin Shaikh encounter killing case of 2005 as well as Tulsi Prajapati encounter killing case. CBI alleged that he led the team of Detection of Crime Branch (DCB), Ahmedabad, which had directed the Ahmedabad Police regarding the encounter. Thus, they wanted to interrogate him further. The following day, an Ahmedabad court remanded Vanzara to CBI custody till 10 June.

Laws that were referred to

Contrary to popular perception, the umbrella term ‘encounter killing‘—used only in regard to police personnel—is a right to non-public defence available to everyone, including the police. The Indian Penal code, 1860, has the relevant provisions handling the right to non-public defence under Sections 96 to 106.

The case was filed under Section 121(B) of the Indian Penal Code, which punishes a person for waging or attempting to wage a war against the government of India. Section 341- 343 of the Indian Penal Code, 1860 for wrongful restraint and confinement of a person for more than three days, Section 365 for kidnapping or abduction with intent to secretly and wrongfully confine a person, Section 368 for wrongfully concealing or keeping in confinement a kidnapped person, Section 302 for murder and 201 for causing disappearance of evidence of the offence.

They were also charged under Sections 25(1)(e) of the Indian Arms Act for acquiring in their possession or carrying prohibited ammunition and under Section 27 for using any arms or ammunition in the absence of a licence for manufacture. These were the charges filed against IPS officer GL Singhal, retired cop Tarun Barot and SRPF commando Anaju Chaudhari.

How Indian legal provisions interpret encounter killings versus Right to fair trial

Oxford dictionary defines encounter as an incident in which a public servant is killed by a suspected criminal and controversial circumstances. Encounter killing violates the basic structure of the constitution which holds the fundamental rights of every person, irrespective of his criminal repute. No person can be deprived of his life and liberty except by following the procedure established by law under article 21 of the constitution.

Article 21 of the Constitution of India also enumerates the Right to fair trial despite the gravity of the crime committed, which provides a fundamental liberty to every accused to hire a defence attorney and be given fair chances to prove his defence. Fake encounters rely on the role of justice by the police personnel instead of the judiciary which tends to run one-sided. The principle of natural justice enumerating audi alteram partem gets grievously violated as the accused does not get the chance to prove his innocence and is preconceived as an offender already.

The principles of natural justice and the functions of rule of law also hold the norm of presumption of innocence until proven guilty which holds the supremacy of law over administration and prevents arbitrary exercise of power. When Ajmal Kasab the perpetrator of the 26/11 attack received fair chance of trial, India became an example globally for its gratitude towards the fundamental rights irrespective of the gravity of the offence involved. Not only does a police personnel act judgemental against the accused, but also takes over the responsibility of the judiciary which does not run collateral to the constitution of a democratic country.

Legal Provisions safeguarding Encounter killings

India does not hold any legal provision which directly and expressly legalises or authorises encounters by police personals. However, there are certain circumstances which fall under the general exceptions of the Indian penal code given under chapter IV.

Firstly, if the death is caused in the exercise of the right of private defence it falls under the purview of Section 96 of the Indian Penal Code, 1860 where section 96 to 106 of the penal code define how private defence and in what scenarios is necessary for the protection of one’s own life in order to justify instilling harm on someone else. The right to private defence holds the theory of proportion which makes it absolutely necessary that the harm caused by the private defence shall be equally proportional in gravity to the harm that was apprehended thereof.

Secondly, if the death caused falls under the exception 3 of Section 300 Indian penal code which defines Murder. Exception 3 of section 300 provides that if any public servant or a person authorised by the public servant does an act in the advancement of justice which leads to an ultra vires act causing death of a person, however, is believed to be done with bonafide intention and considered necessary for the purpose of discharging duty as a public servant without any ill-treatment or malice in the intention, the public servant shall not be liable for murder.

Thirdly, Section 46 of the code of criminal procedure 1973 provides for how an arrest should be made. Clause 2 of the section provides that if the person of whose arrest is supposed to be made by the police servant in discharge of his legal duty, and such person forcibly tends to evade the arrest the clause provides relaxation in in the conduct of the police officer to use any means necessary to effect such arrest.

Despite heavy criticism faced on non-ratification of UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment of 1987, India has not ratified despite being the world’s largest democracy. However, Article 6 of the International Covenant on Civil and Political Rights has been ratified by India, which states that every human being holds the inherent right to life which shall be protected by law and shall not be arbitrarily deprived of.

Why did the question of fake encounter arise

The foremost aspect to look into was that the fourth female victim of the encounter was originally unidentified by name in the complaint, nor did it explain the coherence behind her inclusion therein. Secondly, the Identity cards claiming the first two victims as Pakistani nationals was later alleged to have been forged, in the report by the Metropolitan Magistrate, which claimed that they were Indian citizens. The CBI also said that the victim was abducted by the Gujarat Police and IB officials from the outskirts of Ahmedabad, and an AK 51 Rifle was planted by the police officials later on. This created a political squabble between Congress and the BJP for the next seven years. When the UPA government filed another affidavit in the Gujarat High court withdrawing its claim of Ishrat jahan as a Lashkar-e-Taiba operative, it created a stir.

The case was transferred to the CBI which, upon due course of legal procedure, sent Additional Director General of Police into judicial custody who was later jailed. After two years, when PP Pandey got released on bail, he reinstated a case against Satish Verma’s said probe. When David Headley picked Ishrat Jahan, identifying her as an LeT operative, the entire situation became a huge turmoil again. The Home Secretary GK Pillai claimed that Home Minister Chidambaram had revised the affidavit to remove any reference to Ishrat Jahan as an LeT operative.

The then Home Minister Rajnath Singh also declared in the Parliament that Congress was using the case to frame minister Narendra Modi, under a feud. However, as one of the accused, IPS officer D.G. Vanzara had been formerly lodged as an accused in Sohrabuddin Shaikh encounter killing case of 2005 as well as Tulsi Prajapati encounter killing, it perpetuated the unfeigned suspicion regarding the authenticity and sanctity of the encounter.

Instances of a similar scenario 

Batla House Encounter 2008 (Shahzad Ahmed vs State on 9 February, 2018) 

In September 2008, an encounter was carried out by the Delhi Police special team in Jamia Nagar where two suspected Indian terrorists were killed along with an inspector. Many questioned the veracity, while NHRC conducted an investigation filed by the People’s Union for Democratic Rights where a clean chit was given to the accused personnels. However the post-mortem report which had raised several flags was not included in the NHRC report.

The encounter took place after a seven-member Delhi police team led by Inspector Mohan Chand Sharma in the special cell of Delhi police force entered Atif ameen and his companions in their address Batla House where DCP Sanjeev Kumar Yadav also played a vital role. Allegedly, the entire apprehension was on the basis of specific information received that they are suspected in the connection with the serial bomb blast in Delhi. Ameen was found hiding in a flat in Batla House area of Jamia Nagar.

When the police allegedly reached the four-storey house, their attempt to prevent the suspects from fleeing led to a heavy exchange of fire resulting in the encounter of Atif Ameen and Mohammed Sajid. It was alleged that they had links with Dawood Ibrahim, who is an Indian crime lord and drug dealer.

October 2016, Bhopal Jail Encounter

Eight people associated with the Student’s Islamic Movement of India (SIMI) allegedly escaped from the Bhopal Central Jail. They were subsequently shot dead by the police since they allegedly began firing at the police and public, and showed no intentions to surrender. However many videos surfaced claiming the encounter as fake, questioning the existence of clothes, weapons and firearms on the escapees. In 2018, a retired judge of MP High Court gave a clean chit to the police official.

A catena of proofs, including police control room audios, had emerged with the apprehension, allegation and counterclaims that the encounter was staged. 

CBI’s Sohrabuddin Fake Encounter case (Rubab Uddin Sheikh vs State Of Gujarat & Ors on 12 January, 2010)

Sohrabuddin Fake Encounter Case is one of India’s most sensitive criminal trials of the alleged fake encounter of Sohrabuddin Sheikh and his associate Tulsiram Prajapati, and the killing of Sheikh’s wife Kausar Bi. However, all suspects including senior IPS officer and politician, among them the now BJP president Amit Shah had been discharged by the court when ninety two of the two hundred ten witnesses became hostile.

Saurabh Uddin Sheikh was involved in a criminal extortion racket in Gujarat. Not only was he involved in arms smuggling in Madhya Pradesh but also had model charges registered against him in Gujarat and Rajasthan. Alleged by the police personnel, Sheikh was also associated with the Global terrorist organisation Lakshar-e-taiba and Inter-Services Intelligence (ISI), Pakistan’s Intelligence Agency. He had also, allegedly, planned to create communal riots in the state with the view of assassinating a pertinent political leader, unnamed.

He was also accused of possessing forty AK47 rifles in his house in Rania village of Ujjain district while he had sixty pending cases against him, offences ranging from extortion of money from marble factories to arms smuggling and murder cases. The Gujarat government had allegedly strongly resisted the case from being transferred to the Central bureau of investigation (CBI) causing suspicion of involvement by senior politicians.

Vikas Dubey Encounter case 

UP’s biggest gangster, accused of killing eight policemen in Kanpur, was shot dead in an alleged encounter. While the police were bringing him back from Ujjain to kanpur, the vehicle was toppled and Dubey allegedly attempted to flee, as claimed by the police officials. Since five associates were also killed in encounters over the past week, circumstances raised a question on the authenticity of Uttar Pradesh police’ claims.

Vikas Dubey was in Indian history-sheeter Crime Boss and gangster converted politician, based in the Indian state of Uttar Pradesh. He had his first criminal Case registered in the 1990 and had over 60 criminal cases by the year he was killed, offences including assassination of a minister of state and killing of eight policemen during an attempt arrest. The police had declared a bounty of 5,00,000 rupees when he absconded from Uttar Pradesh.

Development in the case in 2021

At the outset, the Court noted that the records and reports received from the C.B.I. were carefully and thoroughly examined by the House Department and thereafter, order of refusal of sanction was passed supporting the whole material belonging to the case. The Court also noted that the Central Government, Government of Gujarat and Police Agencies of other States had accepted that out of 4 persons allegedly killed in the encounter, 2 were admittedly Pakistani nationals having entered into Indian territory illegally. As stated by the authorities, they were Lashkar-e-Taiba (LET) operatives and that they had entered the State of Gujarat with a view to hold out a huge terrorist operation including the assassination of some important leaders as a module of terrorist operation of LeT.

Stressing that there was no question of any fake encounter on the part of any such police officer, the Court observed that seriousness and gravity of data can’t be ignored by high rank cops which they’re always dedicated to their duties. Significantly, the Court noted that based on the intelligence input, which was based on ‘sound, solid and correct information, Gujarat Police was required to keep watch and supervision on the movement and activities of the above said 4 persons. 

Lastly, noting that when the court earlier observed that the act of the accused was while discharging official duties, nobody challenged the order, which said, “There is nothing on record even clear to suggest that the victims weren’t terrorists and that the I.B. inputs weren’t genuine.” Discharging the aforementioned cops, the court observed, “It is obvious that the act which is imagined to be done by the accused was in discharge of their duties or alleged to be in discharge of their duties. Number of anti-national & terrorist activities were spread all over India, more particularly in Gujarat. Being high-rank cops, it had been their duty to require necessary steps,” and ruled, “There is not any question of any fake encounter on the part of any such policeman. There is no evidence to point out that Jahan and therefore the other three weren’t terrorists.”

Prevention of Extra-Judicial killings

Amnesty International provides a 14 point programme for the prevention of extra judicial execution enumerating the replication of extradition execution resulting in fundamental violations of human rights and an affront to the conscience of humanity.

The first point recommends establishing official condemnation of such acts by the highest authority to demonstrate absolute opposition to such extrajudicial execution. It must be made absolutely clear to all the members of police, military and other security forces that extrajudicial executions will not be tolerated and will not lead to any impunity, whatsoever. The second point provides for creation of a chain of command control to ensure a hold of power and authority over the police personnel. Officials leading the chain of command who order or tolerate acceleration of any such executions, either themselves or by anyone under their authority, shall be held criminally liable.

The third point provides that the use of force shall be strictly subjected to minimum extent. Point 5 of the 14 point programme provides for the necessity to ensure absolute protection of any official who is under an apprehesion of death threats by police personnels. There shall be no secret detention and prisoners shall be held in publicly recognised places, making all the information regarding such arrest and detention easily accessible. The governments are recommended to ensure that the commission of extra judicial execution shall be constituted and construed as a criminal offence punishable by sanctions proportianated with the gravity of the practice. It shall be avoided and prevented by regular instructions and training to the officials. The officials shall be trained and guided on the rights and duty to refuse to obey any order for participation in an extrajudicial execution. Such orders shall never be construed as a justification for such participation.

It provides that the government should ensure that all compliance reports of such executions are investigated promptly, impartially and effectively with efficient methods including suspension of officials suspected. The relatives of the victim should be given prior access to such investigation, and shall be entitled to carry and appoint their own doctors for a report of autopsy. It shall be ensured that the witnesses, lawyers and judges involved in such cases shall be protected from any intimidation apprehended.

The last point of the 14 point programme by Amnesty International provides that the victims shall be entitled to obtain fair redressal from the state including financial compensation. The governments should ratify International treaties containing safeguards and remedies against extrajudicial executions and shall ensure full implementation of such provisions including the   and comply with the recommendations of intergovernmental organisations concerning these abuses.

Conclusion

Allegedly, encounters have been a contested and purposive calculated police procedure from decades. Often the justifications are staged with hypothetical situations. The escapee’s deliberate attempt to flee, causing harm to the police officials or merely the incapability of any citizen to stand against a deleterious criminal, dominate such justifications. Although justice imparted by the courts often seems to be inert, extra judicial killings do not form a place in a liberal and democratic living country.

The need of the hour is an impartial, independent and coherent investigation, which helps uncloak the indecorous nexus between a few fragments of the administration and the law enforcement officers. There shall be no room for loopholes to protect a cold blooded criminal, and sheath the homicide.

On the other hand, an authentic, unaltered investigation post the alleged controversy of a fake encounter shall be administered, since the allegations may just be a political swindle. If the allegations stand fabricated, such proclamations not only falsely convict reputed police officials, but also creates a scepticism and mistrust on the administration.The entire sitch is an unfortunate state of affairs which should not be a part of a quasi federal democratic country. 

References


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