Friday, May 13, 2011

Fake encounters: Supreme Court recommends death sentence

In a stern warning to policemen resorting to fake encounters, the Supreme Court on Friday made it clear that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases.

Rejecting the bail plea of five policemen, said to be members of a team that shot dead a businessman in a fake encounter, a Bench of Justices Markandey Katju and Gyan Sudha Misra said: “fake encounters are nothing but cold-blooded, brutal murders by persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.”

Writing the judgment, Justice Katju said, “We warn policemen that they will not be excused for committing murder in the name of ‘encounter' on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials, the Nazi war criminals took the plea that ‘orders are orders,' nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter,' it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty, sentenced to death.”
The Bench said, “The ‘encounter' philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen who think they can kill people in the name of ‘encounter' and get away with it should know that the gallows await them.”
In the instant case, appellants Prakash Kadam and four others were alleged to have been engaged as contract killers and they shot dead businessman Ramnarayan Gupta in a fake encounter near Mumbai. While the trail court granted bail, the Bombay High Court cancelled their bail. The present appeals are directed against the High Court order and they sought their release on bail.

Dismissing the appeals, the Bench said:

“This case reveals to what grisly depths our society has descended. This is a very serious case and cannot be treated like an ordinary case. The accused, who are policemen, are supposed to uphold the law, but the allegation against them is that they functioned as contract killers. Their version that Ramnarayan Gupta was shot [dead] in a police encounter has been found to be false during the investigation.

“If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial to save themselves. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals.
“Thus, the protectors have become the predators. As the Bible says ‘If the salt has lost its flavour, wherewith shall it be salted?', or as the ancient Romans used to say, ‘Who will guard the Praetorian guards. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle.

“This idea of Matsyanyaya [the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak] is frequently dwelt upon by Kautilya, the Mahabharata and other works.”

The Bench dismissed the appeals and asked the trial court to decide the case uninfluenced by any of the observations in this judgment.

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