BMS MEMORIAL 5TH NATIONAL MOOT COURT COMPETITION 2020

Team Code: A – 11

BEFORE THE HONOURABLE SUPREME COURT OF INDICA

IN THE MATTERS OF:

WRIT PETITION No. XYZ/2020

PUBLIC SOCIETY FOR CIVIL LIBERTIES PETITIONER

v.

REPUBLIC OF INDICA RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDICA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS.................................................................................................. 3

2. INDEX OF AUTHORITIES ................................................................................................... 4

ACTS AND CONVENTIONS .................................................................................................... 4

BOOKS ...................................................................................................................................... 4
CASES ....................................................................................................................................... 4
ONLINE DOCUMENTS AND JOURNALS .............................................................................. 5
WEBSITES ................................................................................................................................ 5

3. STATEMENT OF JURISDICTION ...................................................................................... 7

4. STATEMENT OF FACTS ...................................................................................................... 8

5. STATEMENT OF ISSUES ................................................................................................... 10

6. WRITTEN PLEADINGS ...................................................................................................... 11

1. THE ACTION OF THE POLICE OF UNKAR PRADESH CONSTITUTES A VIOLATION OF ARTICLE 21

OF CONSTITUTION OF INDICA SINCE THE DUE PROCEDURE ESTABLISHED BY LAW HAS NOT BEEN

FOLLOWED................................................................................................................................ 11
[A] The Fundamental Right to life and personal liberty has been violated. ............................ 11
[B] Violation of human rights of the accused persons............................................................ 12
2. THE POLICE OF UNKAR PRADESH IS NOT JUSTIFIED IN CAUSING THE DEATH OF VIVEK DAS IN
TERMS OF SELF-DEFENCE. MOREOVER, THE POLICE HAVE NOT FOLLOWED THE PRINCIPLES PROVIDED

UNDER THE CR.P.C. ................................................................................................................... 14

[A] The Supreme Court, in various instances, has condemned Police brutalities and
encounter-killings. ................................................................................................................ 14
[B] The action of the police does not fall under the right to self-defence. .............................. 15
[C] The principles of Cr.P.C like production of accused before the Magistrate within 24 hours
of arrest has not been followed by the police. ........................................................................ 17
[D] Encounter-killings violate the principles of free and fair trial. ........................................ 17
[E] Encounter-killings violate the International law.............................................................. 18

7. SUMMARY OF ARGUMENTS ........................................................................................... 19

8. PRAYER ................................................................................................................................ 20

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LIST OF ABBREVIATIONS

& : And
AIR : All India Reporter
Anr : Another
Art. : Article
Bom CR : Bombay Cases Reporter
C.W.P : Case Witnessing Process
Cri.L.J : Criminal Law Journal
Cr.P.C : Code of Criminal Procedure
DSP : Deputy Superintendent of police
Edn. : Edition
FIR : First Information Report
HC : High Court
Hon’ble : Honorable
ICCPR : The United Nations International Covenant on Civil and
Political Rights
IPC : Indica Penal Code
JT : Judgment Today
KHC : Karnataka High Court.
NHRC : National Human Right Commission
SCALE : Supreme Court Almanac
SCC : Supreme Court Cases
SCR : Supreme Court Reports
SI : Sub-Inspector
SO : Station Officer
SPT : Special Police Team
UDHR : Universal Declaration of Human Rights
UJ : Unreported Judgments
UP : Unkar Pradesh
v. : Versus

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INDEX OF AUTHORITIES

ACTS AND CONVENTIONS

1. CONSTITUTION OF INDICA, 1950

2. CODE OF CRIMINAL PROCEDURE, 1973
3. INDICA PENAL CODE, 1860
4. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966
5. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

BOOKS

1. D. D. Basu, Introduction to the Constitution of India; (23rd Edn.)

2. Durga Das Basu, Shorter Constitution of India; (14th Edn.)
3. H.M. Seervai, Constitutional Law of India; (4th Edn.)
4. Jasti Chelameswar Dama Seshadri Naidu, Indian Constitution Law; (8th Edn.)
5. M. P. Jain, Indian Constitutional Law; (8th Edn.)
6. Mahendra Pal Singh, Constitution of India; (13th Edn.)
7. Mahendra Pal Singh, V.N. Shukla’s Constitution of India; (12 th Edn.)

CASES

Sl. Page of
Case Name
No Memo
1. Arnesh Kumar v. State of Bihar, [(2014) 8 SCC 273 Para 5]. 15
2. Commissioner of Police v. Mehar Singh, [ Para 35 (2013) 7 SCC 685)]. 13
Extra Judicial Execution Victim Families Association & Anr. v Union of India &
3. 11
Anr, [para 143 (2016 )14 SCC 578.]
4. Hussainara Khatoon v. Home Secretary, State of Bihar, [1979 AIR 1369]. 18
5. Inder Singh v. State of Punjab, [(1995) 3 SCC 702 Para 10]. 15
Justice K.S. Puttuswamy (Retd) v. Union of India, [WP (CIVIL) NO 494 OF
6. 14
2012].
7. Kartar Singh v State of Punjab, [1961 AIR 1787, 1962 SCR (2) 395]. 11
8. Maneka Gandhi V. UOI, [1978 SCR (2) 621]. 11

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Nirmal Singh Kahlon v State of Punjab, [Para 27 C.W.P No. 10861 of 2004 HC,
9. 12
Haryana].
10. Om Prakash v State of Jharkhand, [(2012) 12 SCC 72]. 12
People’s Union for Civil Liberties v. State of Maharashtra &Others [1999(4)
11. 11
BomCR 608].
Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr, [(2011) 6
12. 15
SCC 189].
13. People’s Union for Civil Liberties v. Union of India, [AIR 1997 SC 568]. 14
14. R.S. Sodhi Advocate v. State of U.P. and Ors, [1994 Supp (1) SCC 143]. 17
15. Rohtash Kumar v State of Haryana , [(2013) 14 SCC 434]. 18
16. Satyavir Singh Rathi v. State, [(2011) 6 SCC 1]. 17
17. State of Uttar Pradesh v. Naresh and others, [(2011) 4 SCC 324]. 18
18. Sunil Batra V. Delhi Administration, [1980 AIR 1579, 1980 SCR (2) 557]. 11

ONLINE DOCUMENTS AND JOURNALS

1. A Nirmal Singh Heera and N Prabhavathi, “Power of arrest is under arrest”: A critical
analysis in light of code of criminal procedure, 1973, 3 International Journal of Law,
(2017).

WEBSITES

1. Justice V. Ram Kumar, Law Relating to Encounter Killings by The Police, LIVE LAW (Jan
9, 2020 6:01 PM), https://www.livelaw.in/columns/law-relating-to-encounter-killings-by-
the-police-151457#:~:text=Article 21 of the Constitution,to who the culprit is.

2. Justice Markandey Katju, The Lawlessness of Encounter Killings, THE WIRE (July 10,
2020), https://thewire.in/law/hyderabad-police-encounter.
3. Mehal Jain, 'Demolition of Vikas Dubey's House an Act of Vengeance ': PIL In Allahabad
HC Seeks Independent Inquiry, LIVE LAW (July 11, 2020), https://www.livelaw.in/top-
stories/demolition-of-vikas-dubeys-house-an-act-of-vengeance-pil-in-allahabad-hc-seeks-
independent-inquiry-159740.

4. Akshita Saxena, Vikas Dubey Encounter: Plea in SC Seeks for Reconstitution of Inquiry
Commission on Allegations of Bias, LIVE LAW (Jul 24, 2020), https://www.livelaw.in/top-
stories/vikas-dubey-encounter-plea-in-sc-seeks-for-reconstitution-of-inquiry-commission-

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on-allegations-of-bias-read-application-160399.

5. Supriya Aggarwal, Encounter of the Rule of Law, COUNTERCURRENTS (Jul 24, 2020),
https://countercurrents.org/2020/07/encounter-of-the-rule-of-law/.

6. Rohan Deshpande, A reminder for UP: Supreme Court has said that fake encounters amount
to state-backed terror, SCROLL.IN (Jul 23, 2020), https://scroll.in/article/968284/dubey-
death-up-must-be-reminded-that-supreme-court-said-encounters-amount-to-state-backed-
terror.

7. Meera Emmanuel, Even State has no authority to violate Article 21: What the Supreme
Court said about Encounter Killings back in 2014, BAR AND BENCH - INDIAN LEGAL
NEWS (Dec 6, 2019, 2020, 11:00 PM), https://www.barandbench.com/columns/even-state-
has-no-authority-to-violate-article-21-what-the-supreme-court-said-about-encounter-
killings-back-in-2014.

8. Tarini Mehta, Vikas Dubey and the Problem of 'Encounter Killings' in India, THE
DIPLOMAT (Jul 17, 2020), https://thediplomat.com/2020/07/vikas-dubey-and-the-
problem-of-encounter-killings-in-india/.

9. Harshit Sharma, Private Defence and Section 46(3) CrPC- "Way to Extra-Judicial
Killings", THE LAW BLOG (Jul 12, 2020), https://thelawblog.in/2020/07/12/private-
defence-and-section-463-crpc-way-to-extra-judicial-killings/#_ftnref6.

10. Nishant Tiwari, Article 21 Reduced to Pieces: Police Encounters in This U.P.
Government, RMLNLU CONSTITUTIONAL LAW AND PUBLIC POLICY BLOG (Mar
17, 2020), https://seclpp.wordpress.com/2019/03/17/article-21-reduced-to-pieces-police-
encounters-in-this-u-p-government/#_ftnref1.

11. Shivaang Maheshwari, Undermining the 'Rule of Law': Can the 'Extra-judicial' Killings be
Justified, THE CRIMINAL LAW BLOG (Dec 7, 2019),
https://criminallawstudiesnluj.wordpress.com/2019/12/07/undermining-the-rule-of-law-can-
the-extra-judicial-killings-be-justified-caution-graphic-content/.

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STATEMENT OF JURISDICTION

The Petitioner herein has approached the Supreme Court of India under Article 321 of the
Constitution of Indica, 1950.

This Memorandum sets forth the facts, law and the corresponding arguments on which the claims are
based in the instant case. The Petitioners affirm that they shall accept any judgement of this
Honourable Supreme Court as final and binding upon itself and shall execute it in its entirely good
faith.

1
Article 32: Remedies for enforcement of rights conferred by this Part:
(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 any
of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (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

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STATEMENT OF FACTS

1. Vivek Das, resident of Kaulpur, Unkar Pradesh (UP) has around 60 documented criminal cases
against him. He is linked to several crimes including the murder of a college manager in 2000 and
a cable operator in 2004. In 2001, he was charged with shooting Sandesh Shakula, a state minister
inside a police station in 2000 for which he was pronounced not guilty.
2. On 2nd-3rd August 2020, a team of about 20 policemen had gone to the residing village of Vivek
Das from Chandapur police station area to arrest Vivek Das. The team was attacked by henchmen
of Vivek Das. At least 7 UP police officers were injured in the attack and 10 police officers
(including a DSP and three SI) were murdered during a raid to arrest Vivek Das in Bishaal village,
near Kaulpur city.
3. On the same day, Vivek’s uncle and cousin were also shot down in an encounter while the
investigation and search were ongoing. In the meanwhile, Vivek Das is found to be
absconding. On 4th August 2020, it was discovered that Vivek’s house in Bishaal village was
demolished by police. The police subsequently lodged a FIR against 25 people, mostly residents
of Bishaal village, and 50-60 unidentified people in connection with the killing of the 10 police
personnel. Chandapur’s SO Vishal Trivedi was suspended under the perception that he tipped-off
Vivek Das regarding the raid in which those 10 officers were murdered.
4. Darshan Aggarwal, Vivek Das’ close aide was also named as an accused in the firing incident on
the policemen and was absconding. He was found by the police and eventually arrested. Upon his
arrest, Darshan confessed to being aware of the fact that Vivek was tipped-off by someone in the
police department, informing him about his impending arrest, and after that Vivek called his men
for a face-to-face bloodbath with the police.
5. A letter by officer Diwakar Mahajan, who was killed in the shootout in Bishal village on the 2nd-
3rd of August resurfaced. It was addressed to SP Angad Desai in March and it detailed the extent
of Vivek’s connections with the police and political authorities. Deceased Mahajan also sought
after to draw Desai’s attention to the unholy nexus between one of his sub-inspectors, the now-
suspended Vishal Trivedi and Vivek Das.
6. In operations across Kaulpur and Fitoorbad, several of Vivek’s aides were arrested including six
men and two women who were his relatives which included Vivek’s brother in law along with his
son were arrested and picked up after which his son was detained by the police. Other than them,
Vivek’s neighbour and house-help Rani were arrested. Rani’s husband Kailash, a key associate of
Vivek was arrested at Angadbad area on 5th August 2020.

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7. Arun Kumar, Vivek’s bodyguard, who was allegedly part of the group that was involved in the
shootout on the night of 2nd-3rd August, 2020, was killed by the policemen in Hukumpur district,
near Kaulpur, early on 8th August, 2020. SHO Vasu Tanvar was arrested on the charges of leaking
information and allegedly forewarning Vivek Das about the raid.
8. On 9th August 2020, almost a week after the shootout in Kaulpur, Vivek was arrested on the
premises of the Mahnatkash temple in Usherpur, Markhan Pradesh. He reportedly drove for about
six days since the shootout from Kaulpur, UP, to Fitoorbad, Husiyana to Kora, Rashusthan and
finally went to Usherpur. Hours after Vivek’s arrest, his wife Rinki Das was also arrested.
9. On August 10th, 2020 a vehicle carrying Vivek Das along with the policemen overturned on the
wet highway, after which Vivek tried to escape the cops. According to the police, Vivek tried to
escape by snatching a gun from them but was shot down dead like his fellow accomplice who
previously had also tried to escape. According to the SPECIAL POLICE TEAM (SPT) who were
responsible for Vivek’s escorting, further explained that while taking a turn to avoid herds of
cattle, the car flipped. In the time span of almost one week, Vivek went from being a dreaded yet
unknown, obscure neighbourhood criminal to one of the most discussed individuals in the nation.
10. The National Human Rights Commission (NHRC) in the past sent notice to the UP’s Government
in 2017, observing that the “police personnel in the State are feeling free, misusing their power in
the light of an undeclared endorsement given by the higher ups. They are using their privileges to
settle scores with the people.” However, the NHRC has also laid down two situations when police
can take away somebody's life, which is otherwise protected by the fundamental right to life and
personal liberty as guaranteed by the Constitution: First, if the death is caused by the right to
private defence when the police person or personnel are attacked by the suspect(s), but it does
come with restrictions under the IPC. Second, if the death is caused by use of force that was
necessary to arrest a person accused of an offence punishable with death or imprisonment for life,
which also comes with restrictions mentioned under the IPC.
11. Thereby, the Public Society for Civil Liberties (PSCL), a well-known human rights body in Indica
which is dedicated towards safeguarding the rights of the citizens, came forward and filed Writ
Petition No. XYZ/2020 before the Hon’ble Supreme Court under Article 32 of the Constitution
of Indica contending that there is every possibility of the concerned police department resorting
to kill Vivek Das in a fake encounter during his transit.
12. Taking into account the gravity of the situation, Hon’ble Supreme Court of Indica was pleased to
admit the writ petition and issued notice.

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STATEMENT OF ISSUES

1) Whether the actions and omissions of the Police of Unkar Pradesh resulted in the violation of
Article 21 of Constitution of Indica in as much as Vivek Das was killed and his life was away
without the due procedure established by law.

2) Whether the Police of Unkar Pradesh was justified in killing the dreaded criminal who had
brazenly killed scores of Policemen along with his henchmen and the action of Police is
justified in terms of self-defense (Chapter IV: General Exceptions, Section 96-106) of Indica
Penal Code. Also, whether the police have followed the principle as provided under Cr.P.C i.e.
to produce the accused before the concerned court and various other provisions of Cr.P.C.

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WRITTEN PLEADINGS

ISSUE -1:
Whether the actions and omissions of the police of Unkar Pradesh resulted in the Violation of Art.
21 of the Constitution of Indica in as much as Vivek Das was killed and his life was taken away
without the due procedure established by law.

1. The Action of the Police of Unkar Pradesh Constitutes a Violation of Article 21 of

Constitution of Indica since the Due Procedure Established by Law has not been Followed.
The Counsel for the Petitioner humbly submits before the honourable Supreme Court of Indica, that
the action of the police officers of UP resulted in the violation of the right to live with human dignity
and the right to life and personal liberty guaranteed by Article 21 of the Constitution. Vivek Das’ life
was taken away without the due procedure established by law. The killing of Vivek Das, his relatives,
and associates in different police encounters constitutes a violation of [A] the Fundamental Right to
life and personal liberty and [B] the human rights of the accused persons.

[A] The Fundamental Right to life and personal liberty has been violated.

Article 21 of the Constitution of Indica which provides that no person shall be deprived of his life
except in accordance with the procedure adopted by law2 has been violated in the present case.

1. In the case of Maneka Gandhi v. UOI,3 the Supreme Court pronounced that the right to life
embodied in Article 21 of the Constitution of Indica, is not merely a physical right but it also
includes within its ambit, the right to live with human dignity. Further, in Kartar Singh v. State
of Punjab,4 the Court held that in order for a procedure to be fair, just and reasonable, it had to
conform to the principles of natural justice and core principles of natural justice audi alteram
partem5 should not be violated. Even the alleged ‘criminal’ in this case is a citizen entitled to all
fundamental rights including that under Article 21 of the Constitution.6 In the case of Sunil Batra
v. Delhi Administration,7 the apex court held that the conviction of a person for a crime does not
reduce him to a non- person vulnerable to a major punishment imposed by jail authorities without

2
People’s Union for Civil Liberties v. state of Maharashtra & others, [para 3 (1999 (4) BomCR 608)].
3
Maneka Gandhi V. UOI, [1978 SCR (2) 621].
4
Kartar Singh v State of Punjab, [1961 AIR 1787, 1962 SCR (2) 395].
5
Listen the other side.
6
Extra Judicial Execution Victim Families Association & Anr. v Union of India & Anr, [para 143(2016) 14 SCC 578,
AIR 2016 SC 3400 = 2016 KHC 6468 (SC)].
7
Sunil Batra V. Delhi Administration, [1980 AIR 1579, 1980 SCR (2) 557].

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observance of due procedural safeguards. Here the police personnel have doctored a ‘fake-
encounter’ in transit.
2. In Nirmal Singh Kahlon v. State of Punjab,8 it was held that an accused has the right to have a
fair trial, through a fair procedure and fair investigation. However, the arresting authority causing
the death of a person accused of a particular offence renders his rights under Article 21 void.
Presumption of innocence, an important concept in criminal law, is defeated if such a power is
given to an arresting authority.
9
3. In Om Prakash v. State of Jharkhand and Rohtash Kumar v. State of Haryana,10 the apex
court held that merely because a person is a dreaded criminal or is accused of an offence, the
police officers cannot kill them in cold blood. These cases further establish that the right to life is
sacrosanct and cannot be denied to an accused, except as per procedure established by law which
must necessarily be fair, just and reasonable.
4. In Prakash Kadam v. Ramprasad Vishwananath Gupta,11 a division bench of the Supreme Court
went to the extent of stating that death penalty must be awarded to policemen found guilty of
committing murders in the guise of encounters. It was said 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 the 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. 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. even
the State has no authority to violate that right of the accused individual.”

[B] Violation of human rights of the accused persons.

The Police of Unkar Pradesh has killed Vivek Das’ cousin, uncle, and close aide in different

8
Nirmal Singh Kahlon v State of Punjab,[Para 27 C.W.P No. 10861 of 2004 HC, Haryana].
9
Om Prakash v State of Jharkhand,[(2012) 12 SCC 72].
10
Rohtash Kumar v State of Haryana,[(2013) 14 SCC 434].
11
Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr, [(2011) 6 SCC 189].

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encounters, prior to the killing of Vivek Das. This constitutes a blatant violation of human rights of
the deceased and accused persons.
5. The National Human Rights Commission observed:
"the job of the police is to apprehend criminals and bring them to book. If the police
transgress its limits and takes the law in its own hands, the security of the citizen is seriously
jeopardized. Merely because a person is perceived to be a dreaded criminal and threat to
society, the Police can have no justification to deprive him of his life otherwise than in
accordance with the procedure established by law".
In the present case, the NHRC has sent notice to the UP govt related to the ‘encounters’ in 2017,
observing that “police personnel in the State are feeling free, misusing their power in the light of an
undeclared endorsement given by the higher ups. They are using their privileges to settle scores with
the people.”
6. In Peoples Union for Civil Liberties v. U.O.I,12 the Supreme Court held that the killing of two
people in a fake encounter by Imphal police was a clear violation of the right to life guaranteed
by Art. 21 and there is a presumption that an accused is innocent until proven guilty. The legal
burden of proof rests on the prosecution to prove that the accused is guilty of the offence by
adducing credible evidence and proving the same before the court of law and this is available to
every person and even the state has no authority to violate the rights.
7. In Commissioner of Police v. Mehar Singh,13 the Apex court observed that the Police force is a
disciplined force. It shoulders the great responsibility of maintaining law and order and public
order in the society & even a possibility of his taking to the life of crimes poses a threat to the
discipline of the Police force. In Extra Judicial Execution Victim Families Association v. Union
of India,14 the court held that the next of kin of the deceased victim are entitled to the right to
receive monetary compensation in addition to vindication of human rights violations arising out
of fake encounters by the Police.
8. Recently, the Supreme Court in People’s Union for Civil Liberties v. Union of India,15 while
discussing extra-judicial killings has held that not even State can violate the right to life and
obligation to follow the procedure established by law under Article 21. The Court opined that
encounter killings by the police must be investigated independently as it “affects the credibility of
the rule of law and the administration of the criminal justice system.” It has further issued 16

12
People’s Union for Civil Liberties V. U.O.I, [WP (Civil) No.196 of 2001].
13
Commissioner of Police v. Mehar Singh, [ Para 35 (2013) 7 SCC 685)].
14
Extra Judicial Execution Victim Families Association V. Union of India, [(2016) 14 SCC].
15
People’s Union for Civil Liberties v. Union of India, [AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318,
(1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC].

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guidelines for the independent investigation of encounter killings which has to be followed by
each and every concerned official.
9. In the landmark Supreme Court decision in Justice K.S. Puttuswamy v. Union of India,16 it was
opined that the Constitution is designed to assure the dignity of the individual and therefore of
those cherished human values as the means of ensuring his full development and evolution. These
objectives of the framers draw attention to the concepts underlying the constitution which would
point to such vital words as “personal liberty” having to be construed in a reasonable manner and
to be attributed that sense which would promote and achieve those objectives and by no means to
stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire
constitutional theories.”

ISSUE – 2:
Whether the Police of Unkar Pradesh was justified in killing the dreaded criminal who had brazenly
killed scores of Policemen along with his henchmen and the action of Police is justified in terms of
self-defense and whether they have followed the principles provided under Cr.P.C.

2. The Police of Unkar Pradesh is not justified in causing the death of Vivek Das in terms of
self-defence. Moreover, the Police have not followed the principles provided under the
Cr.P.C.
The Counsel for the Petitioner humbly submits that the action of the Police of UP is not justified and
that the police has acted in blatant disregard of the various principles laid down under the provisions
of the Cr.P.C The killing of Vivek Das, his relatives, and associates in different police encounters
cannot be justified in law on the following grounds: [A] The Supreme Court of Indica has condemned
Police brutalities and encounter-killings; [B] The action of the police does not fall under the right to
self-defence;[C] The principles under Cr.P.C like production of accused before the Magistrate within
24 hours of arrest has not been followed by the police; [D] Encounter-killings violate the principles
of free and fair trial; [E] Encounter-killings violate the International law.

[A] The Supreme Court, in various instances, has condemned Police brutalities and
encounter-killings.

Police brutalities and encounter-killings have always been condemned by the Apex Court of the land.

16
Justice K.S. Puttuswamy (Retd) v. Union of India, [WP (CIVIL) NO 494 OF 2012].

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The Courts have held such acts to be against the rule of law, unfair, unjust, and unconstitutional.

10. The Supreme Court, in the case of Inder Singh v. State of Punjab,17 enunciated that:
"This Court has in recent times come across far too many instances where the Police have
acted not to uphold the law and protect the citizens but in aid of a private cause and to oppress
the citizen. It is a trend that bodes ill for the country and it must be promptly checked."
11. In the case of Om Prakash v. State of Jharkhand,18 the Apex Court held that it is not the duty of
the Police Officers to kill the accused merely because he is a dreaded criminal. Further it stated:
“The Supreme Court has repeatedly admonished trigger – happy Police personnel who
liquidate criminals and project the incident as an encounter. Such killings must be
deprecated. They are not recognized as legal by our criminal justice administration system.
They amount to State – sponsored terrorism”
12. In a 2014 decision,19 the Supreme Court condemned Police brutalities and opined:
"The Police has not come out of its colonial image. Despite 6 decades of independence the
Police is largely considered as a tool of harassment, oppression and surely not considered a
friend of the public".
13. In Prakash Kadam v. Ramprasad Vishwanath Gupta,20 the Supreme Court observed that fake
‘encounters’ by the police are nothing but cold-blooded murders, and those committing them must
be given death sentences, placing them in the category of ‘rarest of rare cases.’ It was observed that:
“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”.
14. In People's Union for Civil Liberties v. State of Maharashtra,21 the Apex Court noticing that
notwithstanding the repeated admonitions by the Court there had been 99 Police encounters
resulting in the death of 135 persons between the years 1995 and 1997 in Mumbai alone, issued
guidelines to be followed in matters of investigation of such Police encounters. Also, the Court had
warned policemen that they would not be excused for committing murder in the name of
“encounter”.

[B] The action of the police does not fall under the right to self-defence.
15. Section 99 of the IPC reads as follows:
“Extent to which the right may be exercised - The right of private defence in no case extends

17
Inder Singh v. State of Punjab, [(1995) 3 SCC 702 Para 10].
18
Om Prakash v. State of Jharkhand, [(2012) 12 SCC 72 Para 42].
19
Arnesh Kumar v. State of Bihar, [(2014) 8 SCC 273 Para 5].
20
Prakash Kadam v. Ramprasad Vishwanath Gupta, [(2011) 6 SCC 189].
21
People's Union for Civil Liberties v. State of Maharashtra, [(2014) 10 SCC 635 = 2015 Cri.L.J. 610].

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to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”.
Further, this right can extend to causing the death of an assailant only in very specific
circumstances enumerated by Sec 100 of the IPC.22
The facts make it clear that Vivek Das only tried to escape by snatching a gun from the police.
But he was shot down dead like his fellow accomplice who previously had also tried to escape. 23
Shooting down an escapee who posed no threat, therefore, amounts to the inflicting of more harm
than necessary for the purpose of defence. Herein, though Vivek Das snatched a police gun and
ran, he did not threaten or endanger the lives of the policemen. The action of the policemen also
does not come under the instances enumerated under Section 100 of IPC. Therefore, the action
of the police is not covered under the right to self-defence guaranteed by the IPC.
16. In the case of Extra Judicial Execution Victim Families Association v. Union of India,24 the
Apex Court held that the right of self- defence or private defence falls in one basket and the use
of excessive force or retaliatory force falls in another basket. The right of the next of kin of
deceased victims to receive monitory compensation in addition to vindication of human rights
violations arising out of fake encounters by the Police, through writ petitions, has also been
expatiated in this case.
17. In the case of R.S. Sodhi Advocate v. State of U.P. and Ors.,25 wherein10 persons were killed in
“encounters” between the Punjab militants and the local police, the Court observed that whether
the loss of lives was on account of a genuine or a fake encounter, the matter has to be inquired
into and investigated closely.
18. In the case of Satyavir Singh Rathi v. State,26 the matter before this Court arose from the FIR
registered against police personnel involved in a shoot-out for an offence punishable under
Sections 302/34 of the IPC. This Court concurred with the High Court and the trial Court on the
conviction under Section 302 IPC and rejected the defence set up by the accused persons relying

22
When the right of private defence of the body extends to causing death.—The right of private defence of the body
extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other
harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:—
(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such
assault; (Secondly) —Such an assault as may reasonably cause the apprehen-sion that grievous hurt will otherwise be the
consequence of such assault; (Thirdly) — An assault with the intention of committing rape; (Fourthly) —An assault with
the intention of gratifying unnatural lust; (Fifthly) — An assault with the intention of kidnapping or abduct-ing; (Sixthly)
— An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him
to apprehend that he will be unable to have recourse to the public authorities for his release.
23
Paragraph 9 of the Moot Problem.
24
Extra Judicial Execution Victim Families Association v. Union of India, [(2016) 14 SCC 578].
25
R.S. Sodhi Advocate v. State of U.P. and Ors, [1994 Supp (1) SCC 143].
26
Satyavir Singh Rathi v. State, [(2011) 6 SCC 1]

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on Exception 3 in Section 300 IPC27 as it was found to be not in good faith or due discharge of
their duty.
19. In the case of Rohtash Kumar v. State of Haryana,28 a two-Judge Bench of this Court was
confronted with killing of a person in an encounter by the police officials. Having found that the
death took place in the fake police encounter, the Court directed an independent investigating
agency to conduct the investigation so that guilty could be brought to justice.

[C] The principles of Cr.P.C like production of accused before the Magistrate within 24 hours
of arrest has not been followed by the police.

20. Sections 5629 and 7630 of the Cr.P.C mandate that the arrested person be produced before the
magistrate within 24 hours of arrest. In the present case, Vivek Das was arrested by the police on
9th of August 2020 and killed in an encounter on 10th of August 2020. The facts, therefore, make
it clear that the police have failed to fulfill its duty to produce the arrested person before a
magistrate within 24 hours of arrest as provided under sections 56 and 76 of Cr.P.C.
21. Vivek Das was not produced before the nearest magistrate after his arrest by the Police. This falls
foul of both the Constitution [Article 22(2)31] and Cr.P.C [Sec.5732& Sec.16733].

[D] Encounter-killings violate the principles of free and fair trial.

22. The right to speedy and fair trial has been recognized as a fundamental right by the Apex Court in
the case of Hussainara Khatoon v. Home Secretary, State of Bihar.34
23. The Supreme Court also equated extra-judicial killings with state-sponsored terrorism and held

27
IPC Section 300 Exception 3: If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
28
Rohtash Kumar v. State of Haryana, [(2013) 14 SCC 290].
29
Section 56: Person arrested to be taken before Magistrate of officer in charge of police station: A police officer making
an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take
or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police
station.
30
Person arrested to be brought before Court without delay: The police officer or other person executing a warrant of
arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested
before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any
case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate'
s Court.
31
Article 22 (2): Every person who is arrested and detained in custody shall be produced before the nearest magistrate
within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest
to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority
of a magistrate.
32
Section 57 of Cr.P.C: Person arrested not to be detained more than twenty-four hours.—No police officer shall detain
in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable,
and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
33
Section 167 of Cr.P.C: Procedure when investigation cannot be completed in twenty-four hours.
34
Hussainara Khatoon v. Home Secretary, State of Bihar, [1979 AIR 1369].

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that they are not recognized as legal by the Indian criminal justice system.35
24. Under Article 22 of the Constitution, the right of an accused person to be defended by an advocate
of his choice is recognized as a fundamental right. This is also a statutory right under Section 303
of the Code of Criminal Procedure, 1973. Moreover, the accused person can avail of all legal
defences available to him and he enjoys the presumption of innocence until proven guilty.36
25. In the case of Rohtash Kumar vs State Of Haryana,37 the conduct of the police in the shootout,
such as a fleeing suspect being shot in the back or the chest instead of non-vital body parts and
the fact that no policemen had been injured in the incident – also applicable in Vivek Das’ case –
were condemned by the Supreme Court in 2013 while holding that an encounter by the police was
fake.
26. In 2014, the Supreme Court reiterated38 that “killings in police encounters affect the credibility of
the rule of law and the administration of the criminal justice system”.

[E] Encounter-killings violate the International law.

The actions and omissions of the Police of Unkar Pradesh also constitute a grave violation of the
following provisions of International law:

27. The right to life and the corollary right to be free from the arbitrary deprivation of life were
formally codified in the International Covenant on Civil and Political Rights (“ICCPR”).
Article 6(1) provides that “every human being has the inherent right to life. This right shall
be protected by law.” The ICCPR indicates the right to life norm is non-derogable.
28. Articles 3 and 5 of the UDHR provides that “everyone has the right to life, liberty and security”
and that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment”
29. Article 9 of the UDHR further states that:
“no one shall be subjected to arbitrary arrest, detention or exile. Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against him.”
30. Article 11 of the UDHR stipulates that “everyone charged with a penal offense has the right to be
presumed innocent until proven guilty according to law public trial at which he has had all the
guarantee necessary for his defence.”

35
Om Prakash v. State of Jharkhand, [(2012) 12 SCC 72 Para 42].
36
State of Uttar Pradesh v. Naresh and others, [(2011) 4 SCC 324].
37
Rohtash Kumar vs State of Haryana, [(2013) 14 SCC 434].
38
People’s Union for Civil Liberties v State of Maharashtra,[(2014) 10 SCC 635 = 2015 Cri.L.J. 610].

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SUMMARY OF ARGUMENTS

1. The action of the Police of Unkar Pradesh constitutes a violation of Article 21 of

Constitution of Indica since the due procedure established by law has not been followed.

The counsel for the petitioner humbly submits that the action of the police officers of Unkar
Pradesh violates Article 21 of the Constitution of Indica since the due procedure established by
law has not been followed. The action of the Police was a flagrant violation of the fundamental
rights of the accused. Also, the fundamental legal principles of presumption of innocence and
right to free, fair and speedy trial have been flouted.

2. The Police of Unkar Pradesh is not justified in causing the death of Vivek Das in terms of
self-defence. Moreover, the Police have not followed the principles provided under the
Cr.P.C.

It is submitted that the Police of Unkar Pradesh is not justified in killing Vivek Das in terms of
self-defence. Also, the Police have not followed the principle provided under Cr.P.C viz.
production of accused before the Magistrate within 24 hours.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced, and authorities cited, it is humbly
requested that this Hon’ble Court may be pleased to adjudge and declare that:

❖ Vivek Das was killed in a fake police-encounter.

❖ The actions and omissions of the Police of Unkar Pradesh resulted in the violation of Article
21 of Constitution of Indica in as much as Vivek Das was killed and his life was away without
the due procedure established by law.
❖ The Police of Unkar Pradesh is not justified in killing Vivek Das in terms of self-defence.
❖ The Police have not followed the principles like production of the accused before the
concerned court and various other provisions provided under the Cr.P.C.
❖ The relatives of Vivek Das are entitled to compensation.
❖ The encounter be investigated and the responsible police personnel be tried and punished.

And pass any other relief that this Hon’ble Court may be pleased to grant in the interest of Justice,
Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF THE PETITIONER

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