THE KILLING OF VIKAS DUBEY- DEMISE OF CONSTITUTIONAL AND CRIMINAL LAW JURISPRUDENCE

By: Swapnil Nayan and Mayank Tiwari

Introduction

Recent events have made people believe that terrorists may not be only be the people carrying an AK-47, nefariously killing men, women and children and vandalizing property, Terrorists could be someone carrying the badge of the Indian Police Service.

The Supreme Law of the land has stipulated the contours of the different institutions which must work harmoniously within their specified boundaries in order to prevent chaos. Several incidents have been witnessed where the police force have been working towards fulfilling the political interests of the ruling political party and seeking vengeance giving staunch disregard to any procedural guidelines.

Emphasis must be laid that the Police is only authorized to arrest the offender and the power to punish still resides with the Judiciary.

The recent incident on the Kanpur Highway, did not reveal but reaffirmed the presence of Extra-Judicial Killings rampantly executed by the police. The killings are conducted by the police by misusing the protection granted by the Code of Criminal Procedure under Section 46(2), where they are allowed to take all means necessary to effectuate the arrest. But, the judiciary have been stern on its view that the provision must be the last resort and never the first one.[1] But, the police authorities have been cunningly orchestrating events and purposefully killing the alleged offenders.

On 10th July 2020, after making the arrest of Vikas Dubey, a notorious criminal who had absconded after he resisted his arrest using heavy artillery on the police force killing seven and injuring several others on the intervening night of 2nd and 3rdJuly 2020. This incident acted as the commencement of the subsequent vengeful acts by the police through several violations of the procedural guidelines. On 4thJuly 2020, Vikas Dubey’s house in Bikru Village was demolished by the police authorities without any authorization or explanation. On 9thJuly 2020, he was arrested in Ujjain, Madhya Pradesh, but in the meantime the police authorities killed several of his close aides.

On 10th July 2020, the vehicle carrying the arrested Vikas Dubey allegedly overturned after which he tried to escape after snatching the police gun. Hence, in order to prevent him from escaping he was shot dead.

Co-incidentally a similar event happened in the December 2019, where the accused of the brutal rape and murder case in Hyderabad were taken early morning for scene recreation where they tried to escape by snatching the police gun. Any reasonable person would comprehend the purposiveness and orchestrated nature of the act where the in pursuance of preventing the escape by the criminals the murders by the police were harbingered.

Both the case carried public sentiments and was highly sensitized by the media and carried heavy public outrage.

Legal Perspective Of Extra-Judicial Killings:

Criminal Law Perspective:

It is a settled principle of Criminal Law Jurisprudence that, “Innocent until proven guilty” which is an extension of the principle of the National Justice. In the events of extra-judicial killings, there is a departure from the Criminal Law protocols at each step and pertinently in the case of Vikas Dubey’s assassination, the entire stage of Criminal Justice System is set on fire by the police,

  • The police acted in excess, which is neither justified in the light of Right to Private Defence. It is well-settled principle of Criminal Law, that in the light of self-defence one should not act as an aggressor[2]. The police, who were apparently more in number, could have taken other alternative steps to capture the accused live, but shooting him directly resulting in his death could have been the last resort of the police, but not the first one.
  • The role of police was also in excess to the power bestowed upon them in the light of Section 46(2) of the CrPC. The accused is shot down, which implies he was shot on a vital organ. The hon’ble Court has unfavored shooting any accused on the vital organ in order to effectuate the arrest[3].

Constitutional Law Perspective:

Article 21 is the safeguard against the life of any person, which is the most sacrosanct provision of the Constitution. In the celebrated case of Maneka Gandhi v UOI[4], the Hon’ble SC opined that the procedure for limiting the right to life must be just, fair and reasonable. In the episode of Vikas Dubey’s assassination, the steps taken by the police was unjust and unfair, as already explained from the criminal law perspective. This also led to,

  • Departure from the principles of Natural Justice, which advocates the importance of Right to fair trial of even the deadliest accused[5]. The steps taken by the police are violative of the principles of separation of powers as Vikas Dubey could be punished only by the competent court but the steps taken by the police, was already in excess led to his denial of fair trial.
  • The basic framework of democracy and criminal jurisprudence rests on the application of Natural Justice and the acts of the police in the light of extra-judicial killings leads to the sheer encounter to the principles enshrined under the Preamble which talks about the social equality and justice.

In Rohtash Kumar v. State of Haryana[6], it was held that merely because a person is a dreaded criminal or is accused of an offence, the police officers cannot kill them in cold blood and must make all effort to arrest them. This case further establishes that the Fundamental Right to life is sacrosanct and cannot be denied to an accused, except as per procedure established by law which must necessarily be fair, just and reasonable. 

Way Forward- What Next?

The recent incidents have proved without a speck of doubt that in the garb of protection and discharge of sovereign duty several extra-judicial killings have been made by the police authorities. The abysmal situation poses severe threat in the justice system of the country as a fame or money driven police officer could generously kill innocents and facilate the actual offenders to abscond. But, in order to address the problem firstly the real problem needs to be ascertained. The Problem is not the extra-judicial killings but the public approval of killings and eulogy offered to the executors. This reveals the people’s lack of belief on the Legal System of the country. The humongous time taken for the disposal of a single matter and the extensive legal process which prove to be harassing for the families of the victim. The quote ‘Justice delayed is Justice denied’ have manifested itself and rendered a nefarious solution of encounter-killings. The public support and reverence bestowed upon the police officers who execute the killings act as a motivator for them to continue the horrendous act. The media have recently made a significant contribution to the issue. Therefore,

  • The government should set up special courts for the fast disposal of matters.
  • The legal process should be made less cumbersome.
  • The country is currently facing a huge deficiency of Judges which result in pendency of matters, thus necessary recruitment must be made.
  • India is also facing a deficiency in needed number of police personnel, thus resulting the present forces to be overworked and even underpaid. Therefore, necessary recruitments and payment elevations must be made.
  • A strict vigilance must be made on the media in order to ensure that neither a eulogy is bestowed upon the police officers who execute encounter killings nor any encouragement for such an action is presented.

[1]Om Prakash v. State of Jharkhand, (2012) 12 SCC 72.

[2]State v. Ramesh AIR 2005 SC 1186

[3]Sri Gobag Nazari v. The State of Assam Writ Petition- 3050/2008 Decision on Aug 3, 2015 Gauhati High Court.

[4] AIR 1978 SC 597

[5]Supra Note. 1

[6](2013) 144 S.C.C. 290.

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