01/11/2016 1:02 PM IST | Updated 02/11/2016 10:32 AM IST

Bhopal Killings: Fake Encounters Should Be Punishable By Death

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An Allahabad High Court judge, Justice A.N. Mulla said in a judgment in 1960 or so, "I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organized unit which is known as the Indian Police Force."

No doubt the Supreme Court had expunged this observation as being too broad a generalization, and no doubt there are also some upright policemen, but far and large the Indian police, by its misdeeds, has acquired an unenviable and unsavoury reputation. The people of India, through their own bitter experience, have learnt about most of our policemen's misbehaviour—demanding "hafta", conducting fake encounters, refusing to lodge FIRs or conduct proper investigations unless money is paid, custodial deaths, torture in custody, etc.

I demand chargesheeting for murder not only the police personnel who committed these cold-blooded killings, but also the politicians and senior bureaucratic and police officers who gave the order...

And now comes this Bhopal "encounter", which was, in my opinion, clearly fake.

Consider the following facts:

1. Sanjeev Shami, the Inspector General of the Anti Terror Squad, said that the eight SIMI under-trial escapees were unarmed, and no cop was injured. It is thus evident that the escapees were shot in cold blood.

2. Bhupendra Singh, the Home Minister of Madhya Pradesh, said that the escapees were armed only with spoons and plates.

3. There is a video clip showing five escapees waving from a rock, and some policeman shouting,"Control, these five men are trying to talk to us. They are trying to run away. Surround them."

4. There is a video clip showing policemen pumping bullets into some escapees, possibly still alive, lying on the ground.

5. There's a video clip with someone shouting "Zinda hai, maaro. Put one in his chest. He will die."

In Prakash Kadam vs. Ramprasad Vishwanath Gupta in 2011, a bench of the Supreme Court consisting of Justice Gyan Sudha Misra and myself held that in cases of fake encounter, the death sentence must be given. The relevant part of the judgment is below:

"In our opinion, the High Court was perfectly justified in cancelling the bail to the accused-appellants. 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?'"

We are of the view 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. Fake `encounters' are nothing but cold blooded, brutal murder 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.

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 `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."

So I demand chargesheeting for murder not only the police personnel who committed these cold-blooded killings, but also the politicians (including any minister) and senior bureaucratic and police officers who gave the order, and if found guilty, they must be hanged.