SEEDLING SCHOOL OF LAW AND GOVERNANCE

JAIPUR, NATIONAL UNIVERSITY,

JAIPUR, RAJASTHAN

IN
THE HON’BLE
SUPREME COURT OF REBUPLIC OF BHARAT

CASE CONCERNING VIOLATION OF FUNDAMENTAL

RIGHTS
SAMMAM[NGO] [PETITIONER]
VS.
STATE OF BOMBAY [POLICE] [RESPONDENT]

ON THE SUBMISSION TO THE HON’BLE COURT

MEMORIAL OF PETITIONER
SAMMAM [NGO]

SUBMITTED TO :VEER VIKRAM SIN

GH [ASSISTANT
PROFESSOR]
SUBMITTED BY : ETI PACHOURI [B.A. LLB.] [HON’S]
 TABLE OF CONTENT

INDEX OF AUTHORITY……………………………………………………………………...

STATEMENT OF JURISDICTION……………………………………………………………

STATEMENT OF FACTS……………………………………………………………………...

ISSUES RAISED……………………………………………………………………………….

SUMMARY OF ARGUMENT………………………………………………………………...

ARGUMENT ADVANCED…………………………………………………..
 LIST OF ABBREVIATION

1. HON’BLE HONORABLE
2. i.e THAT IS
3. S.C SUPREME COURT
4. D.t.d DATED
5. u/s UNDER SECTION
6. S/D SIGNED
7. A APPELLANT
8. CA COURT OF APPEAL
 INDEX OF AUTHORITY STATUES

THE CONSTITUTION OF INDIA

UNIVERSAL DECLERATION OF HUMAN RIGHTS

CASE CITED

• SMT UJJAM BAI V/S STATE OF U.P 1962

• EXTRA JUDICIAL EXECUTION VICTIM V/S UNION OF INDIA AND ORS.
2017
• A.K GOPALAN V/S THE STATE OF MADRAS. UNION OF INDIA 1950
• ROMESH THAPPAR V/S THE STATE OF MADRAS 1950
• J.K TRADERS ,HYD VS STATE OF A.P AND OTHERS ,2000
• KANTI DEVI & OTHER V/S STATE OF UP&OTHER ,2011
• DEJO KAPPEN V/S STATE OF KERALA REP
• SHAILESH KUMAR VS THE STATE OF BIHAR 2017
• GOPAL S/O . RAMDAS SHETYE V/S THE STATE OF MAHARASTRA ON 2017
• BANDARUPALLI RAJESWARI V/S THE STATE OF ANDRA PRADESH , 2019
• ALL MANIPUR SCHOOL STUDENT V/S THE STATE OF MANIPUR
REPRESENTED 2020

BOOKS CITED

• THE CONSTITUTION OF INDIA

• BARE ACT OF CONSTITUTION OF INDIA
• LAW OF FUNDAMENTAL RIGHTS
• FUNDAMENTAL RIGHTS AND ENFORCEMENT
• UNIVERSAL DECLERATION OF FUNDAMENTAL RIGHTS
STATEMENT OF JURISDICTION

THE HON’BLE COURT HAS JURISDICTION TRY THE INSTANT MATTER UNDER
A.32 OF INDIAN CONSTITUTION.
STATEMENT OF FACTS
• BHARAT IS A COUNTRY WHICH HAS VARIOUS CULTURE AND
HISTORICAL GLORIES. MOJORITIY OF POPULATION WORSHIPED DEITIES
IN THE PERSONIFICATION OF WOMEN AS SYMBOL OF STRENGTH AND
FEARLESSNESS.
• AS MENTIONED DRISTI A YOUNG ADVOCATE WAS THE LAST ONE TO
LEAVE HER WORKPLACE AND TOOK HER PERSONAL VEHICLE.
• ON THE NIGHT OF 17-01-21 AROUND 09:30 P.M SHE WAS RETURNING
FROM HER WORK PLACE ON HER SCOOTY WHERE SHE NOTICED FOUR
MEN DESPERATELY ASKING FOR HELP BESIDE THE HIGHWAY. DRISTI
STOPPED AND THE MEN TOLD HER THAT FRIEND IS LAYING INJURED
AT A DISTANCE.
• SHE GOT DOWN, TWO OF THEM ACCOMPAINED HER TO A DISTANCE
SECIUDED PLACE. ON HER WAY SHE REALIZED THAT SHE LEFT HER
PHONE INSIDE ,SO SHE RETURNED AND SHE FOUND OUT THAT HER
SCOOTY IS PUNCTURED ,SO SHE CALLED HER YOUNG SISTER NANCY
AT 09:30 P.M TO INFORM ABOUT THE SAME.
• ALL OF THE SUDDEN THE TWO MEN FOLLWED BY OTHER TWO MEN
STARTED TOUCHING HER IN A WRONG WAY.
• SHE GOT REALLY SCARED AND SLAPPED ONE OF THEM , TO WHICH
THE
MEN BECOME ANGRY AND THEY DRAGGED THE GIRL TO A DISTANCE
PLACE AND RAPED HER ONE BY ONE . IN THE FEAR OF GETTING
CAUGHT THE FOUR MEN PUT PETROLEUM IN HER BODY AND BURNT
HER ALIVE TILL SHE WAS DEAD AND RAN AWAY TO THE NEARBY
VILLAGE.
• ON 18-01-2021 THE PARTIALLY BURNT BODY WAS FOUND AT AN
UNDERPASS ON THE BOMBAY BENDIKAL NATIONAL HIGHWAY BYA
FARMER AROUND 6:00A.M . THE SARPANCH THEN INFORMED THE
POLICE.
• AFTER CONFIRMING THAT THE VICTIM WAS A FEMALE THE LOCAL
POLICE DID THE VERIFICATION OF RECENT MISSING CASES AND WITH
THE HELP OF A HANDBAG THE FAMILIES WAS ABLE TO RECOGNIZE
HER.
• THE POLICE STARTED INVESTIGATING PROCEDURES AND WITH THE
HELP OF THE CCTV THEY ARRESTED JAVED, RAJESH, NAVEEN, AND
KESHAV.
• ON 24-01-2021 POLICE PRESENTED THE FOUR ACCUSED IN FRONT OF
LOCAL MAGISTRATE AND REQUESTED A SEVEN DAYS REMAND FOR
FURTHER INVESTIGATION.
• ON 03-02-2021 THE MEDIA FLASED THE NEWS THAT THE FOUR
ACCUSED
HAVE BEEN SHOT DEAD BY THE POLICE WHILE THEY WERE BEINGB
TAKEN TO THE COURT AS NAVEEN AND KESHAV SNATCHED THE
REVOLVER FROM THE CONSTABLE AND FIRED ,JAVED AND RAJESH
ALSO FOLLOWED THEM.
• THE FAMILIES OF THE ACCUSED AMD HUMAN RIGHT GROUPS
ALLEGED THAT THE POLICE DID THE EXTRA JIDICIAL KILLING AND
THEY FRAMED A MURDER SCENE.
• AN NGO NAMED ‘SAMMAM’ FILED A PETITION BEFORE THE HON’BLE
COURT OF BOMBAY.
 1.WHETHER WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE
OR

STATEMENT OF ISSUE

1.WHETHER WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE OR

NOT?
2.WHETHER THER IS VIOLATION OF FUNDAMENTAL RIGHTS / HUMAN RIGHT/
NATURAL RIGHT/ OR NOT?
3.WHETHER THE ACT OF POLICE WAS MURDER OR NOT?
 1.WHETHER WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE
OR

SUMMARY OF ARGUMENT

YES, THE WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE

BECAUSE AS LED DOWN IN CONSTITUTION A.32 GIVES THE POWER TO MOVE
THE SUPREME COURT BY APPROPRIATE PROCEEDING FOR THE
ENFORCEMENT OF THE RIGHTS CONFERRED BY THIS PART IS GURANTEED.
2.WHETHER THERE IS VIOLATION OF FUNDAMENTAL RIGHTS /HUMAN
RIGHTS/NATURAL RIGHTS OR NOT?
YES, THERE IS A VIOLATION OF FUNDAMENTAL RIGHT ACCORDING TO
INDIAN CONSTITUTION BECAUSE A.21 OF CONSTITUTION OF INDIA ;
PROTECTION OF LIFE &PERSONAL LIBERTY .IT STATES THAT NO PERSON
SHALL BE DEPRIVED OF HIS LIFE OR PERSONAL LIBERTY EXCEPT ACCORDING
TO A PROCEDURE ESTABLISHED BY LAW. THUS A.21 SECURES TWO RIGHTS :-
RIGHT TO LIFE AND RIGHT TO PERSONAL LIBERTY.ACCORDIND TO
UNIVERSAL DECLERATION OF HUMAN RIGHT A.3 STATES THAT EVERY ONE
HAVE RIGHT TO LIFE , LIBERTY AND THE SECURITY OF A PERSON & OFC
NATURAL RIGHT WHICHB ARE GOD GIVEN WHICH INCLUDES RIGHT TO LIFE
WAS ALSO VIOLATED.
 1.WHETHER WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE
OR

ARGUMENT ADVANCED

NOT?
YES, THE WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE
BECAUSE AS LED DOWN IN CONSTITUTION A.32 GIVES THE POWER TO MOVE
THE SUPREME COURT BY APPROPRIATE PROCEEDING FOR THE
ENFORCEMENT OF THE RIGHTS CONFERRED BY THIS PART IS GURANTEED.

IT IS NECESSARY, PERHAPS, TO START WITH THE VERY ARTICLE, NAMELY,

ARTICLE 32, WITH REFERENCE TO WHICH THE QUESTION HAS TO BE
ANSWERED."

32. (1) THE RIGHT TO MOVE THE SUPREME COURT BY APPROPRIATE

PROCEEDINGS FOR THE ENFORCEMENT OF THE RIGHTS CONFERRED BY THIS
PART IS GUARANTEED.

(2) THE SUPREME COURT SHALL HAVE POWER TO ISSUE DIRECTIONS OR

ORDERS, OR WRITS, INCLUDING WRITS IN THE NATURE OF HABEAS CORPUS,
MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI, WHICHEVER
MAY BE APPROPRIATE, FOR THE ENFORCEMENT OF THE RIGHTS CONFERRED
BY THIS PART.

(3) WITHOUT PREJUDICE TO THE POWERS CONFERRED ON THE SUPREME

COURT BY CLAUSES (1) AND (2), PARLIAMENT MAY BY LAW EMPOWER ANY
OTHER COURT TO EXERCISE WITHIN THE LOCAL LIMITS OF ITS JURISDICTION
ALL OR ANY OF THE POWERS EXERCISABLE BY THE SUPREME COURT UNDER
CLAUSE (2).

(4) THE RIGHT GUARANTEED BY THIS ARTICLE SHALL NOT BE SUSPENDED

EXCEPT AS OTHERWISE PROVIDED FOR BY THIS CONSTITUTION.

"THE ARTICLE OCCURS IN PART III OF THE CONSTITUTION HEADED

&'FUNDAMENTAL RIGHTS&'. IT IS ONE OF A SERIES OF ARTICLES WHICH FALL
UNDER THE SUB-HEAD, "RIGHT TO CONSTITUTIONAL REMEDIES". THERE CAN
BE NO DOUBT THAT THE RIGHT TO MOVE THE SUPREME COURT BY
APPROPRIATE PROCEEDINGS FOR THE ENFORCEMENT OF THE RIGHT
CONFERRED BY PART III IS ITSELF A GUARANTEED FUNDAMENTAL RIGHT.
INDEED, CLAUSE (1) OF THE ARTICLE SAYS SO IN EXPRESS TERMS. CLAUSE (2)
SAYS THAT THIS COURT SHALL HAVE POWER TO ISSUE DIRECTIONS OR
ORDER OR WRITS, INCLUDING WRITS IN THE NATURE OF HABEAS CORPUS,
MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI, WHICHEVER
MAY BE APPROPRIATE, FOR THE ENFORCEMENT OF ANY OF THE RIGHTS
CONFERRED BY PART III. CLAUSE (4) MAKES IT CLEAR THAT THE RIGHT
GUARANTEED BY THE ARTICLE SHALL NOT BE SUSPENDED EXCEPT AS
OTHERWISE PROVIDED FOR BY THE CONSTITUTION. ARTICLE 359 OF THE
CONSTITUTION STATES THAT WHERE A PROCLAMATION OF EMERGENCY IS IN
OPERATION THE PRESIDENT MAY BY ORDER DECLARE THAT THE RIGHT TO
MOVE ANY COURT FOR THE ENFORCEMENT OF SUCH OF THE RIGHTS
CONFERRED BY PART III AS MAY BE MENTIONED IN THE ORDER AND ALL
PROCEEDINGS PENDING IN ANY COURT FOR THE ENFORCEMENT OF THE
RIGHTS SO MENTIONED SHALL REMAIN SUSPENDED ETC. IT IS CLEAR,
THEREFORE, THAT SO LONG AS NO ORDER IS MADE BY THE PRESIDENT TO
SUSPEND THE ENFORCEMENT OF THE RIGHTS CONFERRED BY PART III OF THE
CONSTITUTION EVERY PERSON IN INDIA, CITIZEN OR OTHERWISE, HAS THE
GUARANTEED RIGHT TO MOVE THE SUPREME COURT FOR ENFORCEMENT OF
THE RIGHTS CONFERRED ON HIM BY PART III OF THE CONSTITUTION AND THE
SUPREME COURT HAS THE POWER TO ISSUE NECESSARY DIRECTIONS,
ORDERS OR WRITS WHICH MAY BE APPROPRIATE FOR THE ENFORCEMENT OF
SUCH RIGHTS. INDEED, THIS COURT HAS HELD IN MORE THAN ONE DECISION
THAT UNDER THE CONSTITUTION IT IS THE PRIVILEGE AND DUTY OF THIS
COURT TO UPHOLD THE FUNDAMENTAL RIGHTS, WHENEVER A PERSON
SEEKS THE ENFORCEMENT OF SUCH RIGHTS. THE OATH OF OFFICE WHICH A
JUDGE OF THE
SUPREME COURT TAKES ON ASSUMPTION OF OFFICE CONTAINS INTER ALIA A
SOLEMN AFFIRMATION THAT HE WILL "UPHOLD THE CONSTITUTION AND THE
LAWS".THE CONTROVERSY BEFORE US CENTRES ROUND THE EXPRESSION
"ENFORCEMENT OF THE RIGHTS CONFERRED BY THIS PART" WHICH OCCURS
IN CLAUSES (1) AND (2) OF THE ARTICLE. IT HAS NOT BEEN DISPUTED BEFORE
US THAT THIS COURT IS NOT TRAMMELLED BY TECHNICAL CONSIDERATIONS
RELATION TO THE ISSUE OF WRITS HABEAS CORPUS MANDAMUS,
PROHIBITION, QUO WARRANTO AND CERTIORARI. THIS COURT SAID IN T. C.
BASAPPA V. T. NAGAPPA ( 1955 (1) SCR 230, 256.)."

2.WHETHER THERE IS VIOLATION OF FUNDAMENTAL RIGHTS /HUMAN

RIGHTS/NATURAL RIGHTS OR NOT?

YES, THERE IS A VIOLATION OF FUNDAMENTAL RIGHT ACCORDING TO

INDIAN CONSTITUTION BECAUSE A.21 OF CONSTITUTION OF INDIA ;
PROTECTION OF LIFE &PERSONAL LIBERTY .IT STATES THAT NO PERSON
SHALL BE DEPRIVED OF HIS LIFE OR PERSONAL LIBERTY EXCEPT ACCORDING
TO A PROCEDURE ESTABLISHED BY LAW. THUS A.21 SECURES TWO RIGHTS :-
RIGHT TO LIFE AND RIGHT TO PERSONAL LIBERTY.ACCORDIND TO
UNIVERSAL DECLERATION OF HUMAN RIGHT A.3 STATES THAT EVERY ONE
HAS THE RIGHT TO LIFE , LIBERTY AND THE SECURITY OF A PERSON & OFC
NATURAL RIGHT WHICHB ARE GOD GIVEN WHICH INCLUDES RIGHT TO LIFE
WAS ALSO VIOLATED. XTRAJUDICIAL KILLINGS ARE ACTS OF VIOLENCE
CARRIED OUT BY LAW ENFORCEMENT AGENCIES WITHOUT ANY JUDICIAL
AUTHORIZATION. THIS IS USUALLY DONE BY THE STATE TO ENFORCE WHAT
MAY BE CALLED ‘INSTANT JUSTICE’ BY CIRCUMVENTING THE ELABORATE
PROCEDURE ESTABLISHED THROUGH THE CRIMINAL JUSTICE SYSTEM. EVEN
THOUGH IT MUST BE SEEN AS AN ABERRATION TO THE WELL-ENTRENCHED
PRINCIPLE OF RULE OF LAW, PUBLIC CONSCIOUSNESS IS OFTEN UNMOVED BY
SUCH BRAZEN MISUSE OF STATE POWER. FAR FROM CRITICIZING THESE
INCIDENTS AS HEINOUS CRIMES, PEOPLE USUALLY CELEBRATE WHEN SUCH
HIGH PROFILE ENCOUNTERS TAKE PLACE. THE POLITICIANS FORMING PART
OF THE GOVERNMENT HAVE ALSO SENSED THIS, AND THEREFORE THEY
 1.WHETHER WRIT FILED BY THE FAMILIES UNDER A.32 IS MAINTAINABLE
OR

ADVERTISE SUCH ENCOUNTERS AS BADGES OF HONOR. THIS MIGHT VERY

WELL BE AN INDICATION THAT THE PUBLIC IS LOSING TRUST IN OUR
JUDICIAL SYSTEM AND IN THE PRINCIPLE OF RULE OF LAW.
ON 10TH JULY 2020, VIKAS DUBEY, A DREADED GANGSTER IN THE INDIAN
STATE OF UTTAR PRADESH (U.P.), WAS GUNNED DOWN BY THE POLICE IN AN
ENCOUNTER. THE POLICE CLAIMED THAT WHILE THEY WERE ON THEIR WAY
TO U.P. AFTER HAVING ARRESTED DUBEY FROM UJJAIN, HE HAD SNATCHED
THE PISTOL FROM ONE OF THE COPS AND OPENED FIRE ON THEM. THUS, THE
POLICE HAD TO SHOOT HIM IN SELF-DEFENSE. THERE IS NO DOUBT THAT THE
POLICE HAVE THE RIGHT TO DEFEND THEMSELVES WHILE BEING FIRED
UPON BY AN ACCUSED. IT IS WITHIN THE PURVIEW OF THEIR POWERS TO USE
ALL MEANS POSSIBLE TO ARREST A PERSON IF HE RESISTS HIS ARREST.
THEREFORE, IF THE POLICE ACCOUNT IS TRUE, THEN THE COURT NO LONGER
REMAINS OBLIGED TO INTERVENE. NONETHELESS, MANY
HAVE QUESTIONED THE VERACITY OF THESE CLAIMS, THUS BRINGING
BACK INTO FOCUS THE EXTRAJUDICIAL AND EXTRA-CONSTITUTIONAL
MEANS THAT ARE SOMETIMES EMPLOYED BY THE STATE WHILE DEALING
WITH CRIMINALS. IN THIS ARTICLE, THE AUTHOR EXPLORES THE DYNAMICS
OF SUCH EXTRAJUDICIAL KILLINGS AND THE REASONS WHY THE POLICE
ALWAYS GET AWAY WITHOUT BEING CONVICTED.

THE SUPREME COURT HAS RULED AGAINST EXTRAJUDICIAL KILLINGS IN

MANY CASES IN VIEW OF THE INCREASING INCIDENTS. IT EVEN WENT TO THE
EXTENT OF PRESCRIBING DEATH SENTENCES AGAINST THOSE POLICEMEN
WHO WERE INVOLVED IN FAKE ENCOUNTERS. IN A 2012 LANDMARK
JUDGMENT, THE SUPREME COURT TERMED THESE KILLINGS AS
‘STATESPONSORED TERRORISM’.

EXTRA-JUDICIAL KILLINGS IN THE FORM OF FAKE ENCOUNTERS ARE AN

ATTACK ON THE FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLE
14 WHICH GRANTS THE RIGHT TO EQUALITY, AND ARTICLE 21 THAT
PROTECTS LIFE AND PERSONAL LIBERTY. EVERY PERSON IS ENTITLED TO A
FAIR INVESTIGATION AND TRIAL UNDER ARTICLE 14 AND ARTICLE 21 OF
THE CONSTITUTION. IT HAS BEEN HELD BY THE APEX COURT IN THE YEAR
1978 THAT ANY STATE ACTION WHICH IS AGAINST PRINCIPLES OF NATURAL
JUSTICE IS VIOLATIVE OF ARTICLE 21. IN FAKE ENCOUNTERS, THE POLICE
ASSUME THE ROLE OF THE JUDICIARY AND THE EXECUTIONER WITHOUT
GIVING A PROPER CHANCE TO THE ACCUSED TO BE HEARD AT AN
APPROPRIATE JUDICIAL FORUM, THEREBY VIOLATING THE PRINCIPLE
OF AUDI ALTERAM PARTEM. IN A 2009 SUPREME COURT JUDGMENT, IT WAS
HELD THAT FAIRNESS, JUSTICE, AND REASONABLENESS CONSTITUTE THE
ESSENCE OF THE GUARANTEE OF LIFE AND LIBERTY AS ENSHRINED IN
ARTICLE 21 OF THE INDIAN CONSTITUTION. IN OUR CRIMINAL JUSTICE
SYSTEM, THE ACCUSED IS AN INDIVIDUAL WHO IS PITTED AGAINST THE
MIGHT OF THE STATE. THE INVESTIGATING AGENCIES, ADJUDICATING
AUTHORITY AND JAIL AUTHORITIES ARE ALL INSTITUTIONS OF THE STATE.
THEREFORE, AN ACCUSED SHOULD BE PUNISHED ONLY AFTER HE HAS GONE
THROUGH THE ENTIRE LEGAL PROCESS AND HAS BEEN PROVEN GUILTY
BEYOND A REASONABLE DOUBT.
IN THE CASE OF E. P. ROYAPPA, THE SUPREME COURT HAD CATEGORICALLY
HELD THAT ARBITRARY ACTS OF THE STATE ARE IN STARK CONTRAVENTION
OF ARTICLE 14. WHEN THE POLICE FORCE ARBITRARILY RESORTS TO
ENCOUNTERS WITHOUT ANY FAIR JUSTIFICATION, IT DENIES THE ACCUSED
THE PROTECTION OF LAW THAT HE IS ENTITLED TO UNDER ARTICLE
14. MEDIA REPORTS POINT OUT THAT VERY RARELY HAVE ENCOUNTER
KILLINGS BEEN CARRIED OUT AGAINST THE MOST WANTED AND POWERFUL
CRIMINALS OF THE STATE. THUS, ENCOUNTERS HAVE BEEN USED AS AN
INSTRUMENT OF THE STATE AGAINST THE VULNERABLE SECTIONS OF
SOCIETY. IT HAS BEEN INDICATED THAT SINCE MAY 2017, HALF OF THOSE
KILLED IN ENCOUNTER KILLINGS IN U.P. WERE MUSLIMS AND THE OTHER
HALF LARGELY COMPRISED OF BACKWARD CASTES.

THE SUPREME COURT CAME DOWN HEAVILY ON THE POLICE OFFICERS

INDULGING IN SUCH FLAGRANT PRACTICES AND ISSUED GUIDELINES THAT
PRESCRIBE A PROCEDURE FOR THE INVESTIGATION OF DEATHS BY
ENCOUNTER. HOWEVER, THESE HAVE STILL NOT PREVENTED LAW
ENFORCEMENT AGENCIES FROM CARRYING OUT THESE KILLINGS.

THE PERPETRATORS HAVE LARGELY BEEN ABLE TO GET AWAY WITH THESE
KILLINGS BECAUSE IT IS THE POLICE THAT INVESTIGATES ITSELF AND IT
DOES SO WITH A BIASED APPROACH. THE SUPREME COURT GUIDELINES
MANDATE THAT AN INVESTIGATION ON ALLEGATIONS OF FAKE
ENCOUNTERS HAS TO BE CARRIED OUT BY A SEPARATE TEAM OF C.I.D. OR BY
A POLICE STATION OTHER THAN THE ONE INVOLVED IN THE SAID
ENCOUNTER. IN CASES WHERE THE AUTHORIZATION OF SUCH FAKE
ENCOUNTERS COMES FROM THE PEOPLE IN POWER, THE INVESTIGATION IS
USUALLY TAMPERED WITH BECAUSE THE C.I.D. AND THE OTHER POLICE
STATIONS COME UNDER THE STATE GOVERNMENT, WHICH THWARTS A FAIR
INVESTIGATION IN SUCH CASES. NOTABLY, OUT OF THE 74 MAGISTERIAL
INQUIRIES AGAINST U.P. POLICE OFFICERS IN CASES OF ENCOUNTER
KILLINGS, THE POLICE HAVE FILED A CLOSURE REPORT IN 61 CASES,
ACQUITTING THE POLICE PERSONNEL.

THE POLICE HAVE ALSO BEEN SEEN TO BE PROTECTING ITS OFFICERS BY NOT
INITIATING PROCEEDINGS AGAINST THEM. SECTION 197 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 (CRPC) REQUIRES THE SANCTION OF COMPETENT
AUTHORITY BEFORE INITIATING A CRIMINAL CASE AGAINST ANY PUBLIC
SERVANT. HOWEVER, THE SUPREME COURT IN 2006 MADE IT VERY CLEAR
THAT THERE IS NO NEED TO TAKE PRIOR SANCTION FOR PROSECUTING A
PUBLIC SERVANT WHERE THE ACT HAS BEEN CARRIED OUT FOR PERSONAL
BENEFIT. THE POLICE OFFICERS HAVE OFTEN BEEN FOUND TO CONDUCT
SUCH KILLINGS BY TAKING MONEY FROM RIVAL GANGS OR ON THE ORDERS
OF THEIR POLITICAL BOSSES. THE IMMUNITY THAT IS PROVIDED IN SECTION
197 OF CRPC IS ONLY APPLICABLE TO ACTS DONE IN PURSUANCE OF OFFICIAL
DUTY. EVEN IN 2019, A THREE-JUDGE BENCH OF THE SUPREME
COURT DIFFERENTIATED BETWEEN OFFICIAL ACTS AND ACTS WHICH ARE
DONE UNDER THE GARB OF OFFICIAL DUTY FOR PERSONAL BENEFIT. THE
COURT WENT ON TO HOLD THAT ACTS DONE FOR PERSONAL BENEFIT DO NOT
WARRANT A PRIOR SANCTION UNDER SECTION 197 OF THE CRPC TO INITIATE
CRIMINAL PROCEEDINGS AGAINST A PUBLIC SERVANT.
IT HAS BEEN NOTICED THAT THE POLICEMEN INDULGE IN ENCOUNTER
KILLINGS TO GET MONETARY REWARDS FROM THE GOVERNMENT OR BRIBES
FROM THE RIVALS OF THE VICTIMS. IN 2017, THE U.P. GOVERNMENT HAD
PERMITTED A REWARD OF UP TO RS. 1 LAKH TO POLICE TEAMS THAT
CARRY OUT ENCOUNTERS AGAINST SUSPECTED CRIMINALS. THIS IS A
BLATANT VIOLATION OF THE SUPREME COURT GUIDELINES WHICH, AMONG
OTHER THINGS, PROHIBIT OUT OF TURN PROMOTION OR REWARDS UNTIL THE
INQUIRY HAS ABSOLVED THE ACCUSED POLICEMEN OF ALL ALLEGATIONS.

THE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

HAS ALSO OBSERVED THAT THE RELUCTANCE OF THE POLICE TO INFORM
THE FAMILIES OF THE VICTIMS ABOUT THE KILLINGS AND WITHHOLDING
THE POST MORTEM REPORTS FROM THEM, STANDS IN COMPLETE DEFIANCE
OF THE SUPREME COURT GUIDELINES. THE SUPREME COURT GUIDELINES
GIVE THE VICTIMS’ FAMILIES THE RIGHT TO MOVE TO COURT IF THEY ARE
DISSATISFIED WITH THE POLICE INVESTIGATION. HOWEVER, THEIR VOICES
ARE EASILY QUASHED BY IMPLICATING THEM IN FALSE CASES AND
HARASSING THEM WITH DEATH THREATS.

THE INVESTIGATION CARRIED OUT IN CASES OF ENCOUNTER KILLINGS ARE

USUALLY BIASED AND PARTIAL IN THEIR APPROACH. THE APEX COURT IN
THE CASE OF PRAKASH SINGH HAD DIRECTED ALL THE STATES TO
ESTABLISH A POLICE COMPLAINT AUTHORITY (PCA), WHICH WOULD BE AN
INDEPENDENT INSTITUTION TO LOOK INTO THE COMPLAINTS OF
MISCONDUCT IN CASES OF CUSTODIAL DEATH AND TORTURE. A RETIRED
JUDGE OF THE SUPREME COURT OR HIGH COURT IS APPOINTED AS THE
CHAIRMAN OF THE PCA AT STATE LEVEL BY THE STATE GOVERNMENT UPON
RECOMMENDATION FROM THE CHIEF JUSTICE OF THE HIGH COURT OF THAT
PARTICULAR STATE. OTHER MEMBERS ARE SELECTED BY THE STATE
GOVERNMENT FROM AMONG THE NAMES SUGGESTED BY LOKAYUKTA,
STATE HUMAN RIGHTS COMMISSION, AND STATE PUBLIC SERVICE
COMMISSION. THE CHAIRMAN AND MEMBERS AT THE DISTRICT LEVEL ARE
ALSO SELECTED THROUGH THE SAME PROCEDURE. SUCH A SELECTION
PROCESS ENSURES THAT ITS MEMBERS CAN WORK INDEPENDENTLY
WITHOUT ANY FEAR OR FAVOR. TILL NOW ONLY 12 STATES HAVE SET UP
PCAS, AND EVEN THESE STATES HAVE NOT DONE IT IN ACCORDANCE WITH
THE SELECTION PROCEDURE MANDATED BY THE SUPREME COURT
DIRECTIVE. THERE IS AN URGENT NEED TO APPOINT A PCA IN EVERY STATE
AS PER THE SUPREME COURT DIRECTIVES TO FACILITATE INDEPENDENT
INVESTIGATIONS IN CASES OF ENCOUNTER KILLINGS.
THE COMMON EXCUSE GIVEN BY THE POLICE FOR CARRYING OUT SUCH
KILLINGS IS THAT THE ACCUSED HAD SNATCHED THE PISTOL OF ONE OF THE
POLICEMEN AND OPENED FIRE. EVEN IN THE ENCOUNTER OF VIKAS DUBEY,
THE POLICE USED THE SAME EXCUSE. AT THIS JUNCTURE, IT IS WORTH
RETHINKING THE RELEVANCE OF THE 1995 APEX COURT ORDER WHICH
PROHIBITED THE HANDCUFFING OF UNDERTRIAL PRISONERS WITHOUT
JUDICIAL CONSENT IN ORDER TO PROTECT THEIR RIGHTS. HOWEVER, THE
SAME IS NOW BEING USED AGAINST THEM, THEREBY THREATENING THEIR
LIVES. THUS, IF IT IS MADE MANDATORY TO HANDCUFF ALL UNDERTRIALS
WITH THEIR HANDS BEHIND THEIR BACK, THEN IT WOULD BE DIFFICULT FOR
THE POLICE TO COOK UP A FAKE NARRATIVE OF ‘SHOOTING IN
SELFDEFENSE’.

THE PHENOMENON OF FAKE ENCOUNTERS BRINGS GREAT DISREPUTE TO THE

IMAGE OF A COUNTRY THAT IS A CONSTITUTIONAL DEMOCRACY AND
CLAIMS TO UPHOLD THE PRINCIPLES OF THE RULE OF LAW AND NATURAL
JUSTICE. JUDICIAL INSTITUTIONS MUST WIN BACK THE TRUST OF THE
PEOPLE. THE POLICEMAN INVOLVED IN THE COMMISSION OF SUCH OFFENSES
SHOULD NOT BE LET OFF THE HOOK AND AN EXAMPLE SHOULD BE SET IN
ORDER TO DETER SUCH ACTS OF BARBARISM IN THE FUTURE.
 PRAYER

THEREFORE IN THE LIGHT OF FACTS STETED, ISSUES RAISED, ARGUMENT

ADVANCED AND AUTHORITIES CITED IT IS MOST HUMBLY PRAYED AND
IMPLORED BRFORE THE HON’BLE COURT BE PLEASED TO ADJUDGE AND
DECLARE THAT THE DEFENDANT CLAIM AGAINST THE PLANTIFF IS WRONG.

PASS ANY ORDER THAT THE HON’BLECOURT MAY DEEM IN THE INTEREST OF
EQUALITY ,JUSTICE AND GOOD CONSCIENCE AND FOR THIS ACT OF
KINDNESS THE COUNCIL SHALL DUTY BEYOND FOREVER PRAY.