INDIAN INSTITUTE OF LEGAL STUDIES

IN THE HON’BLE SUPREME COURT OF REPUBLIC

OF INDIVA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF BINDIA)

IN THE MATTER BETWEEN

SAMAN ADHIKAR & ORS. …………………………………………Petitioner

V.

STATE OF ANKARA …....................................................................Respondent

MEMORIAL FILED ON BEHALF OF THE RESPONDENTS COUNSEL

APPEARING ON BEHALF OF THE PETITIONERS

TABLE OF CONTENTS

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

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

STATEMENT OF JURISIDICTION .....................................................................................5

STATEMENT OF FACTS .......................................................................................................6

ISSUES RAISED....................................................................................................................... 9

SUMMARY OF ARGUMENTS............................................................................................10

ARGUMENTS ADVANCED .................................................................................................12

PRAYER .................................................................................................................................. 24

2
LIST OF ABBREVIATIONS

AIR All India Reporter

Art Article

Hon’ble Honourable

Sec. Section

SC Supreme court

SCC Supreme Court Case

IPC Indian Penal code

CrPC Code of Criminal Procedure

PIL Public Interest Litigation

3
 INDEX OF AUTHORITIES

CASES CITED

 Mukesh and Anrs. vs. NCT of Delhi, 2017 (6) SCC 1

 PUCL vs. State of Maharashtra (2014) 10 SCC 635
 M/s. Andhra Pradesh Police Officers Association vs. A.P. Civil Liberties Committee
Civil Appeal No. 5646 of 2019
 Extra-Judicial Execution Victim Families Association v. Union of India (2016) 14
SCC 536
 Rattiaram v. State of Madhya Pradesh AIR 2012 SC 1485
 Mohd. Hussain @ Julfikar Ali v. The State (Govt. Of Nct), Criminal Appeal No. 1091
of 2006
 Noor Aga vs. State of Punjab and Anr CR No. 1034 of 2008
 Om Prakash & Ors. v. State of Jharkhand (2012) 12 SCC 72
 Vivek tiwari vs the State of UP Writ No. - 43260 of 2016
 Rayan International school vs Hemlata and Anr - CM NO 12836/2015

CONSTITUTIONAL PROVISIONS
❖ Article 32, Constitution of Republic of Indiva

❖ Article 21, Constitution of Republic of Indiva

STATUTES

 Constitution of Republic of Indiva, 1950

 The Indian Penal Code, 1860
 Universal Declarations of Human Rights, 1948

4
 STATEMENT OF JURISIDICTION

THE WRIT PETITION HAS BEEN INSTITUTED BY THE PETITIONERS UNDER

ARTICLE 32. THE PETITIONERS HAVE APPROACHED THE HON’BLE SUPREME
COURT OF REPUBLIC OF INDIVA FOR A SPECIAL LEAVE PETITION UNDER
ARTICLE 32 OF THE CONSTITUTION. THE PRINCIPAL BENCH OF THE HON’BLE
SUPREME COURT HAS CLUBBED ALL THE LITIGATIONS TOGETHER DUE TO
THE SAME COURSE OF ACTION.

THIS MEMORIAL PUTS FORTH THE FACTS, ARGUMENTS AND CONTENTS OF

THE COUNSEL FOR THE PETITIONER.

THE COUNSEL MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS COURT.

5
STATEMENT OF FACTS

1. Republic of Indiva is a country which has various cultural and historical glories to its
name and was often nicknamed as the “Land of Culture”. People from various
backgrounds lived in harmony and abided by the laws of the land. In Republic of
Indiva, the majority of the population worshipped deities in the personification of
women as a symbol of Strength and Fearlessness. Ankara is a State of Republic of
Indiva with the highest literacy rate among all other States of Republic of Indiva and
the people believed in the Equality between Men and Women in all spheres of life.

2. Shrishti was a young Advocate who had just passed her college and started practicing.
She was very ambitious about her work and always worked for the poor and needy
people free of cost. She was always the last one to leave her workplace and often took
her personal vehicle to travel home from workplace. One such night, on 17-01-2020
around 9:30 P.M. she was returning from workplace on her scooty, where she noticed
four men desperately asking for help beside the highway. Out of generosity, she
stopped her scooty and two men told her that they are tourists and one of their friends
is laying injured at a distance. While she got down from her scooty, two of them
accompanied her to a distant secluded place.

3. On her way, she realized that her phone was inside the scooty, so she returned for
taking the same and on return, she found that her two-wheeler tyre was punctured.
Shrishti called her younger sister Nancy at 9.35 p.m. to inform that her scooter had
broken down and she was alone on the road. All of a sudden, the two men, who had
asked for help accompanied by two other men came towards her and started touching
her in a wrong way. She got scared and slapped one of them, to which the men became
angry and then dragged the girl to a distant place and raped her one by one. In the fear
of not getting caught, the four men put petroleum in her body and burnt her alive till
she was dead and ran away towards the nearby village.

4. On 18-01-2020 the partially burnt body was found at an underpass on the Ankara-
Bendakal national highway by a farmer around 6 a.m. He informed the village
sarpanch, who alerted the local police. After confirming that the victim was a female,

6
 the local police verified the recent women missing cases and then, with the help of the
handbag and the scarf, the family members were able to recognise her.

5. The Police started various investigation procedures and discovered a CCTV footage
which was placed near the highway for traffic control. By looking at the CCTV
footage, the Police saw some faces where the recording timing showed around 10:00
P.M. based on which, they started searching for the four men who had run towards the
village and started the enquiry. On 23-01-2020, based on its investigation, the Police
arrested, Javed, Rajesh, Naveen and Keshav. In the meantime, as soon as the news
became viral, people all over the country started protesting and the news became
trending all over Social Media and people demanded Justice for Shrishti. People from
various political background as well as Film Industry and Media houses demanded
speedy Justice and #KillTheRapists became viral all over the Country and the
Government took initiative for a speedy disposal of the case.

6. On 24-01-2020, the Police presented the four accused in front of the local Magistrate
and requested for a 7 days remand for further investigation. Amidst the remand period,
the entire Country protested with candle light marches and various High-Profile
Personalities also got involved in the protests.

7. On 03-02-2020, the Media flashed the news that the four accused had been shot dead
by the Police while they were being taken to the Court. The Investigation In-Charge in
the Interview stated that Naveen and Keshav snatched the revolvers from the
Constables while they were being taken to the Court, jumped out of the Police Van
and fired two rounds in the air. Javed and Rajesh also followed them and tried to
escape. The Police claimed that they found no other ways and had to shoot down the
four accused otherwise the accused would have fled.

8. The killing of the accused in the alleged encounter was hailed by a section of
people, the families of the deceased and human rights groups alleged that the
police took law into its hands, terming this as extra-judicial killing. In the police
press conference that followed, questions as to how two of the four accused
managed to get hold of the pistols in the presence of 10 armed police officers went
unasked.
7
9. The families of the Four Accused also alleged that the police officers have have
framed the murder scene as they had threatened them when they went to the police
station. The families informed the reporters that the police officers angrily made the
statement to the families that the accused stand no chance of being saved from death
as the entire Nation was against their act.

10. As soon as the News became viral, the entire Country rejoiced and supported the
action of the Police and the same was called an “Act of Bravery” by various Political
Leaders. But, An NGO named as “Saman Adhikar” filed a Petition before the
Hon’ble High Court of Ankara. The Hon’ble High Court of Ankara after hearing all
the arguments of the case held “The Police had no other option but to shoot the four
accused failing to which they would have fled and which would have triggered mass
and widespread agitation throughout the Nation and the Role of the Police would have
been in question. Therefore, the Court finds the Act of the Police as an Act of Bravery
and sudden reflex to counter the situation which arose in front of them.”

11. Families of the four accused who were gunned down by the police in an
alleged encounter, have approached the Supreme Court, seeking registration of
murder case against the police officers involved. Alleging that the youth were
killed in a stage-managed gunfight, the families filed a writ petition under the
provisions of Article 32 of the Constitution that enables individuals to seek
redressal for the violation of their fundamental rights.

12. The NGO, after the Judgment by the Hon’ble High Court, approached the Hon’ble
Supreme Court on the contention of violation of Human Rights as well as the violation
of Fundamental Rights guaranteed under the Constitution of Republic of Indiva. All
the petitions have been clubbed by the Hon'ble Supreme Court of Republic of Indiva
and stands pending before the Hon’ble Supreme Court of Republic of Indiva.

8
 ISSUES RAISED

1. Whether the police officers had taken the law into their hands, conducted a
fake encounter, grossly misused their powers and killed / murdered the
'alleged' four rape accused in the case of State of Ankara v. Javed and Ors.?

2. Whether the incident was (a clear) violation of Article 21 (Right to Life and
Fair Trial) of the Constitution of Republic of Indiva and further, inhumanly
stripping off the encounter victims of their basic Human Rights?

9
SUMMARY OF ARGUMENTS

1. The police officers took the law into their hands, conducted a fake encounter,
grossly misused their powers and killed / murdered the 'alleged' four rape
accused in the case of State of Ankara v. Javed and Ors.

Indisputably, no one including these Writ Petitioners will support the convicts involved in
the gang rape and murder cases against the innocent young women in this country.
However, an investigating agency of such cases and officers even in the high level police
officers like Commissioner of Police in the police department taking the law into their
hand, conducting fake encounter and killing alleged rape accused without conducting a
proper investigation, collecting evidences, framing charges and without bringing them
before the court for punishment is very unfortunate. Such fake encounter killing was
conducted only to divert the public reaction over sensational gang rape and murder cases
against innocent young girls and may be to protect the real culprits which is very serious,
painful and not only impermissible under the rule of law but such fake encounter killing is
amounts to pre-planned murders in the hands of police official with the help of power and
public support.

The police they themselves executed death sentence without any due process of law i.e.
without making and framing charges, without producing evidences and witnesses, without
conducting trial, without examining and cross examining and without there being on order of
sessions, thereafter the Hon’ble High Court confirmation over death penalty and thereafter
this Hon’ble Court’s confirmation making a complete mockery of the Criminal jurisprudence
and the procedure established by Law.

10
 2. The incident mentioned in Issue No. 1 was a clear violation of Article 21 (Right to
Life and Fair Trial) of the Constitution of Republic of Indiva and further,
inhumanly stripped off the encounter victims of their basic Human Rights.

Rule of law is the fundamental principle of governance of any civilised liberal democracy.
Article 21 of the Constitution of India stipulates that no person shall be deprived of his life or
personal liberty except in accordance with the procedure established by law. It means that if
the procedure established by law is followed, deprivation of life or personal liberty is not in
violation of Article 21 of the Constitution of India. In the Universal Declarations of Human
Rights, 1984, Art.11.1 thereof reads:

"Everyone charged with a penal offence has the right to be presumed innocent until proven
guilty according to law in a public trail at which he has had all the guarantees."

The human rights law also enshrines ‘Right to a fair trial’, a concept which is essentially
embodied in the Constitution of Indiva. In a democratic country like Indiva, even an accused
cannot be denied his right to life and personal liberty. The Constitution of Indiva through its
Article 21 renders the fair trial a part of life and personal liberty.

The Supreme Court in the case of Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 1485
observed that the fair trial is the heart of criminal jurisprudence. Denial of the fair trial is the
denial of human rights. Also, the Court in Mohd. Hussain @ Julfikar Ali v. The State (Govt.
Of Nct), Criminal Appeal No. 1091 of 2006, stated that every person, therefore, has a right to
a fair trial by a competent court in the spirit of the right to life and personal liberty. Thus, right
to a fair trial being a fundamental right cannot be refused to any person by the virtue of
Constitution.

11
ARGUMENTS ADVANCED

1. Whether the police officers had taken the law into their hands, conducted a fake
encounter, grossly misused their powers and killed / murdered the 'alleged' four rape
accused in the case of State of Ankara v. Javed and Ors.?

Indisputably, no one including these Writ Petitioners will support the convicts involved in
the gang rape and murder cases against the innocent young women in this country.
However, an investigating agency of such cases and officers even in the high level police
officers like Commissioner of Police in the police department taking the law into their
hand, conducting fake encounter and killing alleged rape accused without conducting a
proper investigation, collecting evidences, framing charges and without bringing them
before the court for punishment is very unfortunate. Such fake encounter killing was
conducted only to divert the public reaction over sensational gang rape and murder cases
against innocent young girls and may be to protect the real culprits which is very serious,
painful and not only impermissible under the rule of law but such fake encounter killing is
amounts to pre-planned murders in the hands of police official with the help of power and
public support.

Due to the utter failure of the local police of the State of Ankara, in the night hours of 17th
January, 2020, the victim – young Advocate in the Ankara District was raped and
murdered. When, this rape and murder news reached to the public, the same was shocked in
the minds of larger public all over the nation as like Nirbhaya1 case. The larger public and
young girls’ and boys’, student and other sector people started protest against the police and
demanded severe punishment like death penalty to the criminals.

It is pertinent to note that the concerned local police was refused to take immediate action
and to register case against unknown accused, when the victim’s family member went to
the police station to lodge a complaint prior to the rape and murder stating that his daughter
was missing last several hours. But the concerned local police replied that your daughter
might have gone up along with some one.

These are all coming in news. Because of these reasons, the larger public went against the
police. In order to divert the minds of the larger public reactions, it is submitted that the

1
Mukesh and Anrs. vs. NCT of Delhi, 2017 (6) SCC 1
12
concerned police personals have claimed that they have arrested 4 accused persons within 24
hours. Having recorded the statements of all the 4 alleged accused persons, and having taken
7 days of police remand, the respondent police took the 4 alleged accused in the spot where
the victim was raped and murdered and killed 4 alleged accused persons in the name of
encounter.
The police they themselves executed death sentence without any due process of law i.e.
without making and framing charges, without producing evidences and witnesses, without
conducting trial, without examining and cross examining and without there being on order of
sessions, thereafter the Hon’ble High Court confirmation over death penalty and thereafter
this Hon’ble Court’s confirmation making a complete mockery of the Criminal jurisprudence
and the procedure established by Law.

The police involved have violated the guidelines or observations of this Hon’ble Court in the
case of PUCL vs. State of Maharashtra2, the respondent police official conducted illegal
fake encounter and killed 4 alleged rape accused in the state of Ankara. There is a clear
chance of the tampering evidences and witnesses by the respondent police official in the case
of fake encounter killing.

The respondent authorities not at all bothered about the latest judgment of three judges bench
of this Hon’ble Court’s order dated 18.07.2019 in the case of the M/s. Andhra Pradesh
Police Officers Association vs. A.P. Civil Liberties Committee3 while upholding the 16
directions have been issued by this Hon’ble Court earlier have again held that the directions
issued by this Hon’ble Court to be treated as law under Article 141 of the Constitution.
There is a lot of fog in the police’s version of the cooked up story of the encounter which
requires an independent investigation in this regard. The families of the encountered four
accused have a “Right to know the truth”. The Hon’ble Supreme Court in Extra-Judicial
Execution Victim Families Association v. Union of India (2016)4 made an observation about
“Right to know the truth” as:

“The right to know the truth has gained increasing importance over the years…..With the
emergence of the practice of enforced disappearances in the 1970s, the concept of the right to
the truth became the object of increasing attention from international and regional human
rights bodies and special procedures mandate-holders”

2
(2014) 10 SCC 635
3
Civil Appeal No. 5646 of 2019
4
14 SCC 536
13
The right to the truth relates to the obligation of the State to provide information to victims
or to their families or even society as a whole about the circumstances surrounding serious
violations of human rights. The domestication of this right in India is a positive sign of
dilution of state control and consolidation of constitutionalism.

The Police Commissioner while speaking to the media on the 03rd of February, 2020 said that
the accused persons Naveen and Keshav snatched the revolvers from a Constable, jumped out
of the police vehicle and fired two rounds in that air. Javed and Rajesh followed them and
tried to escape. The police did not find any other way to stop them but to “gun them dead”.

There is nothing but flaws in this version of the police’s “story”. It would be laughable to
believe that the four accused men in a heinous crime who have become a matter of mass
protests would even try to “snatch” a revolver from a constable in the presence of 10 armed
police men. The Counsel would like this Hon’ble Court to order an investigation and find out
why were the accused being taken to the Court 13 days after the remand was ordered for just
7 days. The families have a Right to know why the police waited for another 6 days.

No one including the investigating agency like police has right to punish any accused without
due process of law. The Court alone after applying all the procedure and law and affording an
opportunity all the right of free and fair trial and hearing can impose punishment of
imprisonment or death sentence. Here the respondent police have become hero in the public
domain as they have killed the rapists. When the Police Commissioner was addressing the
media, his body language clearly established that he or his police team has no regret to the
encounter 4 killings. But his body language reflects that he and his police team have achieved
a victory and he and his police team have got very high regards and respects from the larger
public. The public surrounding the encounter spot throwing the garlands to this police
commissioner for their commission of fake encounter. If this type of activities allowed, then
there is no meaning of civilized societies and there is no hope that we all are governed by rule
of law.

There is a clear chance of destroying the evidences available against the respondent’s police
officers who are involved in the fake encounter killing, it is therefore, this Hon’ble Court may
an independent agency like CBI, SIT, CID or any other police team of another State Police
under the supervision of a senior officer and ISSUE AN APPROPRIATE WRIT OR ORDER
directing the independent investing agency to strictly comply with the 16 guidelines issued by
14
this Hon’ble Court in the case of PUCL & Anr. vs. State of Maharashtra & Ors.5 (in
regard to the investigation over fake encounter killing); and for the enforcement of
fundamental rights of equality life and liberty guaranteed under Article 14, 19 and 21 of the
Constitution

This ‘encounter’ bears a stark resemblance to two previous incidents: one from a decade ago
in the united Andhra Pradesh state and another from 2015, after the formation of Telangana.

In December 2008, the Andhra Pradesh police gunned down three men who were accused of
throwing acid on two engineering students in Warangal. It was widely believed then that the
three men were killed in a staged encounter to quell public anger. Another eery parallel is that
the police chief, who is handling the Advocate’s rape-and-murder case, was the
superintendent of police in Warangal when the three accused were killed.

The police’s version then had also been that a team had taken the accused to the crime scene
to collect evidence. The cops opened fire in self-defence when the men apparently tried to
attack them with crude bombs.

Almost seven years later in April 2015, after the Telangana state was formed, police killed
Viqaruddin Ahmed, a member of Tahreek Galba-e-Islam (TGI) and four others in an
‘encounter’ in Nalgonda district. The official version was that the five men, who were
undertrial prisoners lodged in the Warangal central prison, tried to “overpower” the police and
snatch their weapons while they were being taken to Hyderabad to be produced in court. The
prisoners were accused in terror cases, including the killing of policemen.

Police said that Viqaruddin had asked the vehicle to be stopped to urinate, when the five
prisoners “attacked” the police and snatched a weapon to open fire. The other policemen
opened fire and killed them.

Encounters of alleged Maoists and Naxalites

A year after Telangana was formed, two ‘encounters’ which occurred in quick succession
showed the approach the state had adopted to deal with alleged members of Naxal and Maoist
groups.

In June 2015, 19-year-old Vivek Kodamagundla and two other women Maoists were killed
near the Telangana-Chhattisgarh border.

5
(2014) 10 SCC 635
15
Vivek’s father said that his son had been caught by the police before the encounter and then
killed in cold blood. A member of a group called the Association of Maoist Martyrs’ Parents
said that all the three were killed in a “fake encounter”. “They were tortured, their arms
twisted before they were shot dead and they suffered fractures.

A few months later, in September 2015, two alleged Maoists, Sruthi alias Mahitha (23) and
Vidyasagar Reddy alias Sagar (32) were killed in an encounter. Varavara Rao, who has since
been arrested in the Bhima Koregaon case for alleged links to Maoist organisations, dubbed
the encounter ‘fake’ and accused the police of “brutally torturing” and killing the duo.

This would become the template for future ‘fake encounters’ of alleged Maoists, with families
of those killed claiming that the police had first captured them, before taking them to a spot
where they would be tortured and then killed.

The Counsel makes a submission that the police officers have taken the law into their
hands, conducted a fake encounter, grossly misused their powers and killed / murdered the
'alleged' four rape accused in the case of State of Ankara v. Javed and Ors. The police
succumbed to the public pressure and came out as a hero in the public eye. Although we
cannot disregard the fact that the administration of justice in our country is very slow, and
encounters of culprits indulging in such crime may give satisfaction up to certain extent, the
State through its functionaries cannot be emotionally driven or directly work according to
the impulsive opinions of the masses, as we have a proper procedure that needs to be
followed. Moreover, rather than pandering in the alleged illegal killing and supporting and
glorifying the same, the State should devise a better procedure for speedy disposal of such
cases.

16
2. Whether the incident was (a clear) violation of Article 21 (Right to Life and Fair
Trial) of the Constitution of Republic of Indiva and further, inhumanly stripping off the
encounter victims of their basic Human Rights?

Rule of law is the fundamental principle of governance of any civilised liberal democracy.
Article 21 of the Constitution of Indiva stipulates that no person shall be deprived of his life
or personal liberty except in accordance with the procedure established by law. It means that
if the procedure established by law is followed, deprivation of life or personal liberty is not in
violation of Article 21 of the Constitution of Indiva.

In the instant case, two fundamental rights according to the constitution of Indiva has been
violated i.e.,

Article 20 - “No person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the time of
the commission of the offence,” and

Article 21 – “No person shall be deprived of his life or personal liberty except according to
procedure established by law.”

The Article 19 of the constitution provides 6 freedoms to the citizens of Indiva .among these
“freedom of movement”,” freedom to reside and settle”, and “freedom of profession,
occupation, trade or business” cannot be enjoyed by the prisoners as it will conflict with the
concept of prisons and the authorities have the power to restrict it. But other freedoms like
“freedom to speech and expression “freedom to become a member of association” can be
accessed by a prisoners convicted for a crime.

DOES THE POLICE ACTION QUALIFY FOR RIGHT TO SELF DEFENSE?

Section 96 & 100 of Indian Penal Code6, provide with right to private defence. As per Section
96, no offence is made out if any act is done in self-defence. But it needs to pass the test
of Section 99 of Indian Penal Code, which provides that the act should not extend to causing
more harm than that is required for the purpose of self-defence. Section 100 provides when

6
The Indian Penal Code, 1860 (45 of 1860)
17
the right of self-defence extends to causing death. For an act to fall under this defence, certain
conditions need to be satisfied:

1. The accused should be innocent while committing that act;

2. There should be absence of any safe/ reasonable mode of escaping by retreat;
3. There must be apprehension of death/ severe bodily injury; and
4. There should be the necessity of taking life.

Clause 3 of Section 300 of IPC, comes into light which provides that if any public servant/
any person authorized by public servant, exceeds their power to causing death while acting for
advancement of justice and which they believe as lawful and mandatory for discharging his
duty without any ill intention, then they will not be liable for murder.

In this case the action of the policemen of the state of Ankara does not qualify for the right
of self defense. The above defenses are available only to the victim of aggression provided
those extenuating circumstances take place in the course of the same occurrence. To put it
differently, when once the offence has been committed and the offender has decamped, there
is no question of any outsider exercising any of the aforesaid defenses. if a Police officer were
to hunt after and apprehend the alleged culprits and were to shoot them dead, he is, by all
definitions, an aggressor who cannot plead the right of private defense.

In the case of Inder Singh v. State of Punjab7 the court held 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."

Justice, after a trial, may be slow but is fortified by the procedure established by
law.Retribution is not the policy of a civilized society death penalty may undoubtedly be a
condign punishment for gang rape and murder. But, only in rarest of rare case.

According to the NHRC8, The only two conditions in which such killing would not
constitute an offence were:

1. If death is caused in the exertion of the right of private defence, and;

2. Under Section 46 of the Code, which ‘authorises the police to use force, extending
upto the causing of death, as may be necessary to arrest the person subjected to an
offence adjudicated with death or life imprisonment’.

7
(1995) 3 SCC 702
8
National Human Rights Commission
18
It is relevant to refer to the judgment by Division bench of the then Chief Justice of India RM
Lodha and Justice Rohinton F. Nariman in 2014 case of People’s Union for Civil Liberties
(PUCL) v State of Maharashtra9, where the genuineness of encounters in which nearly 130
people died was in question.

The court first highlighted that ‘Article 21 of the Constitution guarantees ‘sacred and
cherished right’ to life or personal liberty to ‘every single person’ in the country and that
even the state is not exempt to abide by that right.

Here according to the CCTV footages followed by other investigations, the 4 accused
committed the crime as per police but the trial was yet to commence by the judicial system of
the country where the presumption of innocence is important not only being a justice
principle but also a human right that cannot be taken away and if violated it will only lead to
miscarriage of the justice as mentioned by the apex court in the case of Noor Aga vs. State of
Punjab and Anr10.

The policemen here should not have been implemented "guilty until proven innocent" instead
of "innocent until proven guilty"

In the case of Om Prakash & Ors. v. State of Jharkhand11, the Supreme Court held that it
is not the duty of the police to kill the accused on the ground that he is a dreaded
criminal..The encounter has left little scope for people to know whether the four men who
were shot dead by the police were actually perpetrators or innocent. If the latter turns out to be
true, it’ll mean that the culprits are still out in the open, free to rape and kill more women. The
indication is that women and young girls will continue to suffer violence and that people will
occasionally make a spectacle of some men who don’t come from high-profile rich families.
Crime will not be deterred by these shortcuts. Let us not cheer today because tomorrow can be
equally grim and horrific like in the case of Vivek tiwari vs the State of UP12 where he was
shot dead and his offence was refusing to stop. Looking at this situation the UN experts call
for urgent progress in the investigation of fake encounters kilings as the past years there have
been more than 1500 cases of extra judicial killings registered.

Justice M.N Venkatchaliah who was then the -Chairperson of NHRC in 1977 wrote to all the
9
(2014) 10 SCC 635
10
CR No. 1034 of 2008
11
(2012) 12 SCC 72
12
Writ No. - 43260 of 2016
19
Chief Ministers of the state. In the letter, he expressed his concern over the increase in the
number of complaints of fake encounters by the police and recommended following
guidelines on behalf of the commission to be followed in the cases of encounter –

1. When the police officer who is in charge of the police station receives information
regarding the death in the encounter between police parties and another person, he shall
record such information in the appropriate register.

2. The information which is received should be regarded as sufficient to suspect any

cognizable offence and immediate steps should be taken in the facts and circumstances which
lead to the death of the person and if any offence was committed and by whom.

3. If the police party is member of the same police station in that situation the case should be
transferred to any independent investigation agency such as State CID.

4. If the police officers are prosecuted and convicted based on the result of the investigation
compensation may be granted to the kin of the deceased.

In the year 2010, these guidelines were extended by the NHRC by including

1. An inquiry must be held by the Magistrate in cases of death in police action expeditiously
(-preferably within 3 months).

2. In all cases of death in police action in the state, a preliminary report must be sent to the
District Magistrate within 48 hours of death. Further, a second report must be sent within 3
months mentioning details such as post-mortem report, finding of magisterial inquiry etc.

The International Covenants On Civil And Political Rights, 1966:

The ICCPR remains the core instrumental treaty on the protection of the rights of the
prisoners. Following relevant provisions of the covenants are as in the (ICCPR, 1966,
Article.10)

● No one shall be subjected to cruel, inhuman or degrading treatment or punishments.

● Everyone has the right to liberty and security of person. No one shall be subject to
arbitrary arrest or detention.
● All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person.

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Article 2, para. 3 -International human rights law is binding on all States and
their agents, including prison officials.

THE REASONS OF POLICE ACTING FOR THE BENEFIT OF THE POLITICIANS

AND INFLUENTIAL PEOPLE:

The report by CSDS13 in the Status of policing in India Report, 2019, tells us that the
police officers aren't even imparted sufficient training. There are only 144 police officers per
1 lakh people in the country whereas the UN recommends that there should be 220 police
officers as per 1 lakh people. So as there are not sufficient number of policemen the existing
police officers are extremely over worked .this report released by CSDS states clearly that an
average police officer in our country works 14-16 hours a day they don't even get a week off.
So kind of police we have is that not only over worked , but also understaffed doesn't have
enough resources and is being denied payments obviously they will easily accept bribe to kill
innocents, so the police have been reduced to mere puppets in the hands of the politicians.
Their actions cannot be trusted and they should not have power to take justice as today it is
the four accused that has been killed but in the future if there is some high profile personality
is accused of the same crime, they can bribe them with money and stage a different story
where an innocent will be accused.

The consequences of encounters:

Rayan International school vs Hemlata and Anr14 where a small kid was murdered in the
school, the police first nabbed a bus conductor who had himself confessed that he had
executed the murder but later it was found by the investigation of CBI that the bus conductor
was innocent the police tortured him and forced him to confess in reality it was kid of class 11
of the same school ,was the murderer . The police was bribed to protect the actual accused .

Even in various part of the country of Indiva there is a trend going on cash for Encounter
Raj, according to a report by India Today.in where the policemen have been exposed that
they are ready to kill an innocent with a fixed price of Rs.8 lakhs. In that investigation it was
found that in Agra there have been 241 Encounters have taken place. The people of Indiva

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CENTRE FOR THE STUDY OF DEVELOPING SOCIETIES
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CM NO 12836/2015
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cheering for the encounter is the proof that they o longer have faith in the slow justice system
and bad prosecution as we can see the amount of time it took in the nirbhaya case . But it has
to be understood that there is no solutions in the encounters. The country is turning into a
place where a protectors of law turning into a puppet who kill any one for money , promotion,
or even publicity. The encounters like that is not a reason to celebrate but a serious point to
worry that t any day any one of our family might be encountered even if they didn't commit a
crime.

According to international standards including the International Convention of Civil and

Political Rights (ICCPR), to which India is a party, States have a duty to investigate
allegations of extrajudicial executions with due diligence and good faith, regardless of
whether or not there is a formal complaint. The investigation of extrajudicial, summary or
arbitrary executions must be thorough prompt, impartial and independent, towards
establishing the crime committed and prosecuting those responsible for the crimes. This has
been reiterated by the Supreme Court of India, which has condemned encounter killings, and
set out guidelines for their investigation.

In the article 14 of IICPR it mentioned that “All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals, public order (ordre public)
or national security in a democratic society, or when the interest of the private lives of the
parties so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall be made public except where the interest
of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or
the guardianship of children….”

This is reason why the people who framed our constitution put three Pillars in place
LEGISLATIVE, EXECUTIVE and JUDICIARY. If only the legislative and executive is
enough to bring justice in the society they would not have need the judiciary system. We have
the three pillars of the democratic society that is the executive, the legislature, and the
judiciary. All of them are equally important to build a democratic civilized society if one. The
three pillars that keep each other in check is the system of checks and balances. We know that
current judicial system is slow but that doesn’t undermine its importance to avoid these kind

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of encounters, we are here talking about instant action versus real justice.

The Counsel submits in conclusion that the incident was a clear violation of Article 21 (Right
to Life and Fair Trial) of the Constitution of Republic of Indiva and further, inhumanly
stripping off the encounter victims of their basic Human Rights.

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 PRAYER

WHEREFORE, IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED,

ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS MOST HUMBLY
PRAYED AND IMPLORED BEFORE THE HON’BLE SUPREME COURT OF
REPUBLIC OF INDIVA THAT IT MAY BE GRACIOUSLY PLEASED TO:

I. ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTION ESPECIALLY IN

THE NATURE OF WRIT OF CERTIORARIFIED MANDAMUS calling for
the records of State authorities pertaining to the Fake Encounter killing of
alleged 4 rape accused by the Police personals and order for registration of FIR,
an Independent Investigation against the above said Police Personals;
II. ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTION to the State of
Aankara to compensate families of each of the killed person in the encounter
with a minimum amount of Rupees Twenty Five Lakhs considering their
financial condition;
III. Pass such other and further order or orders as this Hon'ble Court may deem fit and
proper in the facts and circumstances of the case

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND
FOREVER PRAY.

COUNSEL FOR THE PETITIONERS

ON BEHALF OF SAMAN ADHIKAR AND ORS.

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