Police have said that they killed the four accused in the rape-murder case because they “attacked” the police. Cyberabad Police Commissioner V C Sajjanar told news agency PTI: “The four accused were killed in an encounter with police. Will the police just watch if the accused attack them?”
Under what circumstances can police shoot to kill a suspect?
In a note sent to all states and Union Territories on March 29, 1997, then Chairperson of the National Human Rights Commission (NHRC), Justice M N Venkatachaliah said there were only two situations in which police could act with lethal force.
Any killing carried out under circumstances outside the scope of these two situations would amount to “the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law”, Justice Venkatachaliah, who was also Chief Justice of India from February 12, 1993 to October 24, 1994, said.
First, Justice Venkatachaliah wrote, “Under the scheme of criminal law prevailing in India, it would not be an offence if death is caused in the exercise of the right of private defence.”
This is what the Cyberabad Police Commissioner has claimed in defence of the police action. In most cases of encounters across India, police take this plea.
The second “provision under which the police officer can justify the causing of death of another person, is Section 46 of the Criminal Procedure Code”, the NHRC circular said.
“This provision authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life,” Justice Venkatachaliah wrote.
He added: “Whether the causing of death in the encounter in a particular case was justified as falling under any one of the two conditions, can only be ascertained by proper investigation and not otherwise.”
Section 46 of the CrPC, 1973 reads as follows:
“(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action: (With a special provision for women)
“(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
“(3) 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.”
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