Assam Police ‘Encounters’: Right Route To Crack Down On Criminals?

Since the formation of the new government led by Himanta Biswa Sarma in May, Assam police has embarked on an encounter spree wounding around 35 suspected criminals and killing at least 21 as they allegedly tried to snatch service weapons or attempted to escape from custody.

The recent encounters bring a stark picture – functioning of a no-nonsense government or a government that has ‘dangerous ramifications’?

Earlier in July, National Human Rights Commission (NHRC) took suo moto cognizance of the matter and asked the state government to institute an enquiry into the circumstances that led to the death and injuries of the criminals in the recent encounters.

News reports say that all the accused were unarmed and in handcuffs when they allegedly snatched the guns from the holster and attempted escape. Is Assam police that incompetent?

Meanwhile, the Opposition has been slammed the unabated police encounters and accused the government of indulging in “open killings” and becoming “trigger happy” day by day.

During an assembly session, Chief Minister Himanta Biswa Sarma, undaunted by the criticism, said that Assam police has “full operational liberty within the ambit of law. He reiterated that shooting at criminals “should be the pattern” if they attempt to escape custody or try to snatch weapons from the holster of the policemen.

Since May, every month were get to know of a police encounter wherein a criminal tries to escape and gets shot at.

On Saturday, two such incidents were reported – one being the encounter of the prime accused in the Guwahati rave party case where he was shot dead while trying to escape from the police custody, while the other, the murder accused in the Nandita Saikia, who tried to escape and was shot in the leg, injuring him.

When an under-trial criminal is shot down, is it an attempt to cover up liabilities? There could be many angles to it, but, the numbers have gone haywire in recent times and it isn’t virtuous.

Retired IPS officer N.C Asthana said, “Such encounters send the wrong message in a democratic society. I have been observing what Assam’s chief minister has been saying. There have been so many Supreme Court’s orders against such encounters.”

“The continuation of such encounters is itself a violation of the Supreme Court. But what is more shocking is the silence from the public and it seems there is some form of silent societal approval of it. Look at what happened in the Hyderabad rape case of 2019 when police personnel were showered with flowers by people for killing the rape accused in an encounter,” he added.

He also asserted that the people of Assam are already living in a police state, which Congress leader Ripun Bora also mentioned earlier that Assam may soon become a “police state”.

On the other hand, AJP general secretary Jagadish Bhuyan, in July, also condemned CM Sarma’s governance and said that in a span of 30 days there have been 40 such “encounters”. He also said it was highly suspicious as to how CM Sarma could know that more such encounters would take place in the coming days.

Referring to the 65-year-old rape accused who also allegedly tried to flee from custody, Bhuyan said, “I would like to ask whether Assam Police is so weak that it has to shoot an accused. Are the accused not handcuffed? How can an old man try to escape? We suspect that there is the foul play behind it.”

However, he stressed the fact that criminals should be dealt with stringent punishment but not lawlessly.

Around 25 years back during the Assam movement, secret killings, as well as open killings, were prevalent but in 2001 after Congress’ Tarun Gogoi came to power, the numbers dipped. Now, it is going rampant once again.

There is no question of defending the criminals for their alleged crimes, but they have the right to be tried and given a chance to defend themselves in the court of law.

Moreover, what if an innocent man is picked up by the police and is shot, saying that he was a criminal? How is he going to defend himself if he is just shot dead?

One must think, if a criminal is caught, he should be shot down. But our Indian legal system does not give such powers to the police. The status of the judiciary in this country, the relevance of human rights, is still prevalent. Article 47 (2) of the CRPC states that – if a person obstructs or tries to evade arrest by the police, then the police may take all necessary measures.

In this context, Jyotirmoy Chakraborty, a senior police officer who recently retired from the Indian Police Service, wrote, “Of late, there has been a lot of public debate on certain instructions given to police officers by the highest executives of the state of Assam. Legality of the instructions has been called into question. I believe that when the instructions are finally recorded in the form of minutes and circulated to all concerned, the language and the content would be appropriately modified to put them in a form that will be in conformity with the law. A few issues, however, need to be discussed in the light of the provisions of the law even if it is for an academic purpose.

Section 46(2) of the Code of Criminal Procedure (CrPC) says that if a person resists arrest, or attempts to evade arrest, the “police officer or other person” making an arrest may “use all means necessary to effect the arrest”. Further, section 46(3) says, “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”. This provision is often erroneously interpreted to imply that when the offence is punishable with death or with imprisonment for life, there is a right or authority to cause death if the person accused of that offence resists arrest or tries to evade arrest. The correct position is that if death is caused, the mere fact of the offence being punishable by death or imprisonment for life will not provide blanket protection, and each case will have to be justified by the circumstances under which the death was caused. The word “necessary” tagged with “all means” can prove troublesome when one is required to justify the use of lethal force. One must also understand that the authority to use “all means necessary” is available not only to police officers but also to the “other person” who may well be a member of the public making a lawful arrest under section 43(1) of CrPC. In our criminal justice system, even in the case where a person has been duly convicted in a fair trial and awarded a death sentence, the matter may still go up to the Supreme Court and to the President of India for consideration before the lawful death sentence is executed. It is inconceivable, therefore, that the law would give an open license to policemen and to members of the public to shoot at a person or to cause death or grievous hurt to a person who is merely accused of committing a crime. Such empowerment by law, if held as valid, would make even public lynching justifiable. Lethal force can only be the last resort when all other means fail, and must be used with utmost discretion and restraint.” (Extracted from his Facebook handle)

Now it is assumed that the police have done a good job by continuously firing on criminals. But at the same time, who is responsible for the failure of Assam Police that criminals are able to escape, almost every time? Shouldn’t there be a high-level investigation on the matter?

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