The incidents of recent police encounters, also known as extra-judicial killings, have significantly increased, especially in Uttar Pradesh, prompting us to reflect on the path we are taking towards achieving justice. While some police encounters are intended to deliver instant justice, others are carried out to indirectly punish the accused when the established legal procedures may not be practically effective. Let’s examine some instances where convicting the accused seems impossible under the current circumstances and explore potential amendments to the law that could enable these seemingly impossible convictions.
The main reason for allowing extra-judicial killings through the Criminal Code was to effect the arrest and prevent the escape of the arrestee. The concept of encounters was proposed with the assumption that it would keep the accused in custody and facilitate the trial process. However, it was later discovered that effecting arrests and preventing escape was much simpler compared to protecting witnesses.
The Criminal Code failed to acknowledge the fact that sometimes the accused have a vast network of loyal individuals who obstruct the trial against them. This network targets and manipulates witnesses, judges, or prosecution counsel by bribing, threatening, or even eliminating them. Consequently, the trial becomes biased in favour of the accused, eroding public faith in the current legal system. As a result, encounters are now being conducted to prevent this vast network from interfering with the course of justice. Killing the accused before this network can act is seen as a safer alternative.
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Amend the laws
It appears that encounters can be reduced if witnesses, judges, and prosecution counsel are provided with protection. If all participants in a crime can freely participate without fear, the court can more easily secure convictions. While protecting judges and prosecution counsel is challenging, witnesses can be safeguarded to a significant extent by implementing anonymity measures. The names of witnesses should not be disclosed in the documents available to the accused. Only the witness statements should be sufficient to inform the accused of the charges they will face during the trial. Often, witnesses retract their original statements due to threats or inducements, which hinders a fair trial and administration of justice. Therefore, the court should provide effective protection to witnesses. Implementing anonymity for all witnesses simultaneously is feasible. However, in this process, we must not overlook the rights of the accused, such as cross-examination, test identification parade, and providing copies of witness statements to the accused free of cost.
It is not uncommon to acknowledge that judges should also be protected from bribery traps. Every criminal trial begins in the district court. A separate category should be established where trials involving hardcore criminals are held in high courts. In such cases, evidence can be recorded before the Registrar. Similarly, prosecution officers should also be shielded from bribery incidents. This can be achieved through the following methods:
(a) Supervision by senior judges and prosecution officers: Trials of hardcore criminals held at the district level courts should be supervised by higher courts and senior prosecution officers.
(b) Participation of private parties: Victims, who are usually considered strangers to criminal trials, should be allowed to participate so that they can inform the court if any participant is bribed.
(c) Involvement of private parties’ advocates: Currently, private parties’ advocates are not empowered to argue the case. Only the public prosecutor is allowed to present arguments, while private parties’ advocates can only assist the public prosecutor. Allowing private advocates to replace the public prosecutor would significantly impact conviction rates.
(d) Providing reasons for every action: Checks and balances must be in place for every participant’s actions, including judges, counsel, and victims. In cases where the prosecution counsel, who is influenced by the opposition party, acts in a casual manner to help the accused obtain bail, acquittal, or any favourable order, they should be required to provide compelling reasons for such actions to the court. Allowing private advocates to argue and submit their perspectives becomes crucial in such situations.
It is evident that we currently do not provide sufficient protection to witnesses or have adequate checks and balances on prosecution counsels and judges. As a result, hardcore criminals often go unpunished. It is high time we amend our criminal code to address the new evil designs employed by these criminals to secure their freedom.
Rishabh Attri is an advocate at the Supreme Court and Raunak Vuttsya at the Delhi High Court. Views are personal.
(Edited by Prashant)