LF-24/02

LOI FIESTA – 2024

6TH NATIONAL LAW FESTIVAL OF CPJ SCHOOL OF LAW

NATIONAL MOOT COURT COMPETITION, 2024

IN THE HON’BLE SUPREME COURT OF THE REPUBLIC

OF INDRAPRASTHA

WRIT PETITION [CRIMINAL] NO. 123/2024

IN THE MATTER OF

FIGHT FOR JUSTICE NGO & ORS. ………. (Petitioner)

V.

REPUBLIC OF INDRAPRASTHA ………. (Respondent)

 Loi-Fiesta 2024: National Moot Court Competition, CPJ School of Law

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS………………………………………………………………3

TABLE OF AUTHORITIES…………………………………………………………..........4-7

STATEMENT OF JURISDICTION……………………………………………………...... 8

STATEMENT OF FACTS………….……………………………………………………. 9-10

ISSUE RAISED……………………………………………………………………………...11

SUMMARY OF ARGUMENTS………………………………………………………....12-14

ARGUMENTS ADVANCED……………………………………………………...…….15-43

PRAYER…………………………………………………………………………………… 44

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LIST OF ABBREVIATIONS

S.NO. ABBREVIATION DESCRIPTION

1. & And
2. AIR All India Reporter
3. Anr. Another
4. Art. Article
5. Cl. Clause
6. Etc. Et Cetra
7. Hon’ble Honourable
8. i.e. That is
9. ILR Indian Law Reports
10. Ors. Others
11. Sec. Section
12. SC Supreme Court
13. SCR Supreme Court Reporter
14. v. Versus
15. SCC Supreme Court Cases

16. ICCPR International Covenant on Civil and

Political Rights
17. NHRC National Human Rights Commission
18. UDHR Universal Declaration of Human Rights

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INDEX OF AUTHORITIES

ACTS AND CONVENTIONS

1. Constitution of the Republic of Indraprastha

2. Code of Criminal Procedure,1973
3. Universal Declaration of Human Rights, 1948
4. International Covenant on Civil and Political Rights
5. Manual on Human Rights for Police Officers, NHRC

BOOKS

1. M P Jain Indian Constitutional Law, 8th Edition, 2018

2. V.N. Shukla Constitution of India, 13th Edition, 2018

3. J.N. Pandey Constitutional Law, 59th Edition, 2022

4. D. D. Basu, Introduction is the Constitution of India; 23rd Edition

5. Durga Das Bas, Shorter Constitution of India,14th Edition

6. Mahendra Pal Singh, Constitution of India, 13th Edition

ONLINE DATABASE AND ARTICLES

1. www.scconline.com
2. www.manupatra.com
3. https://www.myadvo.in/blog/article-21-right-to-life-all-you-need-to-know/
4. https://www.livelaw.in/columns/law-relating-to-encounter-killings-by-the-police-
151457
5. https://www.juscorpus.com/police-encounters-and-their-legal-provision/

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6. Extra-Judicial Killings in Indian Cop Films through a Legal Lens, 3.1 JCLJ
(2022) 896 at page 903
7. Are Encounters Masquerading Justice?, 1.3 JCLJ (2021) 253
[8.] Police Custody aAnd Human Rights Violations iIn India, Muskan Bhuteria, The
Society of Advancement of Criminal Justice.

CASE LAWS

S.NO. NAME PAGE

NO.
1. Amanullah v. State of Bihar, (2016) 6 SCC 699. 15
2. Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722 SC 1996. 15
3. S.P Gupta v. UOI, AIR 1982 SC 149. 15
4. Romesh Thappar v. State of Madras, AIR 1950 SC 124. 16
5. MC Mehta v. Union of India, AIR 1987 SC 1087. 16
6. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 16

7. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 17

SC 1369.
8. Om Prakash v. State of Jharkhand, (2012) 12SCC 72. 17,21,29
9. State of Uttar Pradesh v. Naresh and Ors., (2011) 4 SCC 324 17
10. Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434. 17,21
11. Vivek Dus Batra v. Union of India, AIR 2013 SC 1416 17
12. People’s Union for Civil Liberties v. State of Maharashtra & Ors., 18,20,25,43
(2014) 10 SCC 635
13. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746. 18

14. Union Carbide Corporation. v. Union of India, (1991) 4 SCC 584 18, 36
15. Zahira Habibullah Sheikh v. State of Gujrat, (2006) 3 SCC 374 18

16. Maneka Gandhi v. UOI, (1978) 2 SCC 621. 20

17. Kartar Singh v. State of Punjab, (1962) 2 SCC 395. 20
18. Extra-Judicial Execution Victim Families Assn. v. Union of India, 20,28
(2016) 14 SCC 536.

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19. Sunil Batra v. Delhi Administration, (1980) 2 SCC 557. 20

20. Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 21

21. Raghbir Singh v. State of Haryana, (1980) AIR 1980 SC 1087. 22

22. D.K Basu v. State of West Bengal (1997) 1 SCC 416. 22

23. Francis Mullin v. Administrator, (1981) SCC 1 608. 22
23. G.S. Mani & Anr. v. Union of India, Writ Petition (Civil) WP No. 23
1192/2020.
24. Prakash Kadam v. Ramprasad Vishwananath Gupta, (2011)6 SCC 24,29
189.
25. CBI v. Kishore Singh, (2011) 6 SCC 369. 25
26. Munshi Singh Gautum v. State of M.P. (2004) SC 0964 25
27. Chaitanya Kalbagh & Ors. v. State of UP, AIR 1989 SC 1452 26
28. B.G. Verghese v. Union of India, (2013) 11 SCC 525 27
29. People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 28
433
30. Inder Singh v. State of Punjab, (1995) 3SCC 702, Para 10. 29
31. Arnesh Kumar v. State of Bihar, (2014) 8SCC 72 Para 42. 29

32. R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 31

33. State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 32

386.

34. Prashant Bhushan, In Re 9Contempt Matter), (2021) 3 SCC 160. 32

35. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, 32

(2009) 6 SCC 498.
36. Bachan Singh v. State of Punjab, (1980) 2 SCC 684. 33
37. Khatri (II) v. State of Bihar, (1981) 1 SCC 627. 33,39
38. Sanjay Dutt v. State, (1994) 5 SCC 410 33
39. Commissioner of Police v. Mehar Singh, AIR 2013 SC 2861.. 35
40. K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1 35
41. RS. Sodhi Advocate v. State of UP and Ors,1994 Supp (1) SCC 37

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143
42. Satyavir Singh Rathi v. State, (2011) 6 SCC 1. 37
43. Rahish Kumar v. State of Haryana, (2013) 14 SCC 434. 37
44. People's Union for Civil Liberties v. U.O.I, (2005) 2 SCC 436. 38
45. Khatri (IV) v. State of Bihar, (1981) 2 SCC 493. 40

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction to entertain this matter under Article
32 of the Constitution of the Republic of Indraprastha which reads as follows:

“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 the 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.”

The jurisdiction of The Hon’ble Supreme Court under Article 32 of the Constitution of the
Republic of Indraprastha is invoked as there is a violation of Article 21.

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STATEMENT OF FACTS

1. Republic of Indraprastha is a country with various cultural and historical glories to its
name and is nicknamed the "Land of Joy". People from various backgrounds lived there
and abided by the laws of the land. The state with the highest literacy here was
“Devsena”.
2. Shivgamini was a young Advocate who had just started practising. She was returning
from the workplace on her scooty when she noticed six men desperately asking for help
on the highway. Out of generosity, she stopped her scooty. Three men asked for help and
introduced themselves as tourists and one of their friends was lying injured at a short
distance. While she got down from her scooty, two of them accompanied her to a distant
isolated place.
3. On her way, she realized that she had left her phone inside the scooty and when she
returned for the same, she noticed that her two-wheeler tyre had been punctured.
Shivgamini called her younger sister Lalita at 10.05 p.m. to inform her that her scooty had
broken down and she was all alone. All of a sudden, the three men, who had asked for her
help accompanied by three other men came towards her and started touching her in an
inappropriate manner. She got scared and slapped one of them, after which the men
dragged the girl to a distant place and raped her one by one. In fear of getting caught, all
the six men brought petroleum to pour on her body and burnt her alive. On 18-01-2023,
the partially burnt body was found at an underpass on the Devsena-Nangal national
highway by a farmer around 5 a.m. He informed the village Sarpanch, Chedilal who
alerted the local police. On confirmation that the victim was a female, police searched for
missing women cases with the help of a ring and a pendant the family members were able
to recognise her burnt body.

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4. The Police started the investigation and discovered a CCTV footage which witnessed six
men running towards the village at around 10:43 PM based on which, they started
searching for those men. People from various political background as well as the Film
Industry and Media houses demanded speedy Justice and #Hangthesedevils became viral
all over the Country and the Government and the Judiciary was pressurised to take some
measures for a speedy disposal of the case. On 03-02-2023, the media flashed the news
that all the six accused had been shot dead by the Police while they were being taken to
the Court and tried to flee.
5. The Investigator In-Charge in an Interview stated that the vehicle carrying all six accused
met with an accident, after coming out of the vehicle Natu and Raju snatched the
revolvers from the Constables while they were taken to the Court, fired two rounds in the
air. The said encounter of the accused was hailed by a section of people but the families
of the deceased and some of the human rights groups wrongly alleged that the police
whereas the police officers responsibly worked for the greater good of the society. The
police officer clarified the threat from the six accused in the press conference held by the
police department
6. The families of the six accused in their allegations against the police department
mentioned about the death threats received by them in the police station during their visits
with families. The families also alleged that the police department used hate speech
against the accused and on several occasions, they apprehended that the lives of the
accused were in danger. As soon as the News went viral, the entire Country cherished the
incident and supported the action of the Police and the same was called an "Act of
Gallantry" by various Political Leaders. But an NGO named as "Fight for Justice" filed a
Petition before the Hon'ble High Court of Devsena.
7. The Hon'ble High Court of Devsena after hearing all the arguments of the case held “The
Police had no other option but to shoot all the six 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 gallantry and sudden grave provocation to counter the
situation in hand.”
8. While families and friends of all the six accused who were shot dead by the police in an
alleged encounter, have approached the Supreme Court, seeking murder charges against
all the ten police officers involved. Alleging that the youth were killed in a staged
gunfight, the families filed a writ petition under the provisions of Article 32 of the

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Constitution that provides remedies against infringement of Fundamental Rights. 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 Indraprastha.

STATEMENT OF ISSUES

I. WHETHER THE WRIT PETITION FILED INVOKING THE

JURISDICTION OF THE HON’BLE SUPREME COURT UNDER
ARTICLE 32 OF THE CONSTITUTION OF THE REPUBLIC OF
INDRAPRASTHA IS MAINTAINABLE OR NOT?

II. WHETHER THE ACT OF KILLING THE ALLEGED SIX RAPE

ACCUSED BY THE POLICE LED TO THE VIOLATION OF DUE
PROCESS ESTABLISHED BY LAW AND THE RIGHT TO FAIR TRIAL
UNDER ARTICLE 21 OF THE CONSTITUTION OF THE REPUBLIC OF
INDRAPRASTHA?

III. WHETHER THE HIGH COURT ERRED IN ITS JUDGEMENT

ACQUITING THE POLICE OFFICER OF EXTRA-JUDICIAL KILLING?

IV. WHETHER THERE WAS A BLATANT VIOLATION OF HUMAN

RIGHTS?

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SUMMARY OF ARGUMENTS

I. WHETHER THE WRIT PETITION FILED INVOKING THE

JURISDICTION OF THE HON’BLE SUPREME COURT UNDER
ARTICLE 32 OF THE CONSTITUTION OF THE REPUBLIC OF
INDRAPRASTA IS MAINTAINABLE?
It is humbly submitted before the Hon’ble Supreme Court that in the instant case,
the writ petition filed by the petitioners to ISSUE AN APPROPRIATE WRIT OR
ORDER OR DIRECTION ESPECIALLY IN THE NATURE OF WRIT OF
MANDAMUS is maintainable under Article 32 of the Constitution of Republic of
Indraprastha, which gives citizens the right to approach the Hon’ble Supreme
Court on violation of a fundamental right. The petition is maintainable as there is
sufficient interest under the principle of locus standi. The Fundamental Rights,
particularly the right to equality guaranteed under Article 14, and the right to due
process, fair trial, and protection of life guaranteed under Article 21, have been
violated in the present case. Encounter killings violate the principle of free and
fair trial. The Supreme Court has recognized the right to a speedy and fair trial as
a fundamental right.
The fundamental rights of innocent under-trials accused have been violated, they
have the locus standi as well as the sufficient cause of action to approach the
Supreme Court and therefore their writ petition is maintainable under Article 32 of
the Indian Constitution.

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II. WHETHER THE ACT OF KILLING THE ALLEGED SIX RAPE

ACCUSED BY THE POLICE LED TO THE VIOLATION OF DUE
PROCESS ESTABLISHED BY LAW AND THE RIGHT TO FAIR TRIAL
UNDER ARTICLE 21 OF THE CONSTITUTION OF THE REPUBLIC OF
INDRAPRASTHA?
The counsels for the petitioners most humbly submits before the court that the
actions of police officers resulted in the violation of the right to life under Article
21 since there was no opportunity of fair trial given to the six accused and the
procedure established by law was not duly followed. The killing of six accused
who were not yet convicted led to the violation of their fundamental right under
Article 21 and the principle of Audi Alteram Partem of Principles of Natural
Justice. Article 21 of the Constitution of Indraprastha provides that “no person
shall be deprived of his life except in accordance with the procedure adopted by

law" and this has been violated in the present case. The killing of an accused by
the police before a fair trial has entailed the mockery of the due process of law and
the violation of fundamental rights that the Constitution has imposed upon the
accused.
The action of respondent police officials in killing the alleged 6 rape accused in a
fake encounter will cause the violation of fundamental rights of life, liberty,
safety, security, law and order and equality guaranteed under Articles 14 and 21 of
the Constitution of large number of innocent lives.
Therefore, the killing of six accused who were not yet convicted led to the
violation of their fundamental right.

III. WHETHER THE HIGH COURT ERRED IN ITS JUDGEMENT

ACQUITING THE POLICE OFFICER OF EXTRA-JUDICIAL KILLING?
It is most humbly submitted before this Hon’ble Court that the Hon’ble High
Court of Devsena erred in acquitting the police officers. The police harassed the
family of the deceased accused during the investigation by sending death threats
and using hate speech. The families believed their lives were in danger, which was
later confirmed when the police killed them and portrayed it as an encounter. The
investigator in charge did not consider this, indicating a biased investigation. The
police succumbed to the pressure of the masses and brutally killed the accused

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under the influence of the media trial due to widespread condemnation and
demand for the death of the six accused. Their actions were fuelled by their own
partiality against the accused, leading to their brutal murder in custody. The High
Court of Devsena passed an erroneous judgement due to the faulty and partial
investigation, accepting the investigator's statement without reconciling
inconsistencies. The incident was branded as an "Act of Gallantry" by the public
and politicians.

IV. WHETHER THERE WAS A BLATANT VIOLATION OF HUMAN

RIGHTS?

It is humbly submitted to the Hon’ble Court that there is a gross violation of

human rights in the present case. Human rights violations occur when basic rights
and freedoms are denied. As per, Article 6(1) of Part III of the International
Covenant on Civil and Political Rights and Article 3, Article 5, Article 9 and
Article 11 of the Universal Declaration of Human Rights shows gross violation
of Human Rights . The six accused who were not yet convicted were denied
the basic human right to free and fair trial. They were killed in a staged
encounter where they were portrayed to be the criminials whereas they were
denied the basic human right to live with dignity as the law always say that an
acused is innocent until proven guilty, As per the present facts and
circumstances, we can very well conclude that the actions of the police have
resulted in a gross violation of human rights in this case, leading to a grave loss of
six innocent lives and endangering the human rights of the citizens of
Indraprastha.

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ARGUMENTS ADVANCED

ISSUE I

WHETHER THE WRIT PETITION FILED INVOKING THE JURISDICTION OF

THE HON’BLE SUPREME COURT UNDER ARTICLE 32 OF THE
CONSTITUTION OF THE REPUBLIC OF INDRAPRASTHA IS MAINTAINABLE
OR NOT?

It is humbly submitted before the Hon’ble Supreme Court of Indraprastha that in the instant
case, the writ petition filed by the petitioners who have filed the present petition to ISSUE
AN APPROPRIATE WRIT OR ORDER OR DIRECTION ESPECIALLY IN THE
NATURE OF WRIT OF MANDAMUS is maintainable under Article 32 of the Constitution
of Indraprastha, which gives citizens the right to approach the Hon’ble Supreme Court on
violation of a fundamental right.

1.1 THAT THERE IS THE PRESENCE OF REQUIRED LOCUS STANDI

The Supreme Court, while referring to the Concise Oxford English Dictionary, has held that
the term ‘locus standi’ refers to the right or capacity to bring an action or to appear in a
court.1 It means that it gives the legal power to have recourse to the jurisdiction of the court.

1
Amanullah v. State of Bihar, (2016) 6 SCC 699.

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Also, it is not necessary that the victim should personally approach the court. The court can
itself take cognizance of the matter and proceed suo moto2.

In S.P Gupta v. UOI,3 the court observed that “any member of the public having sufficient
interest can maintain an action for judicial redress for public injury arising from breach of
public duty or from violation of some provisions of the constitution”. In the instant case, the
petitioners prima facie have sufficient interest and hence, the present writ is maintainable
under Article 32 of the Constitution of Indraprastha.

1.2 THAT THERE HAS BEEN VIOLATION OF FUNDAMENTAL RIGHTS

In the instant case, the petitioners have filed writ petitions under Article 32 of the
Constitution. The Fundamental Rights of the Petitioner, particularly the Right to equality
guaranteed in our constitution under Article 14 as well as the right to due process, fair trial
and protection of life guaranteed under Article 21 have been violated.

The right to life guaranteed under Article 21 is extended to every person and even the State
has no authority to violate the fundamental right, the act of killing of the accused persons has
directly infringed their right to free trial which inherently flows from Article 21.

The killing of the six accused persons has also violated the provisions of Articles 14 and 22
of the Constitution. Article 14 establishes equality before the law and equal protection of the
law; thus everyone has the right to a fair trial and the provision provides fair opportunity to
every accused or victim to present him/herself. Article 22 has also been violated which gives
rights to a person held in custody, which also states that a procedure has to be followed after
an arrest of a person and in contravention of the same, extra-judicial killings attract violation
of a fundamental right.

In Romesh Thappar v State of Madras4 it was held that Article 32 provides a guaranteed
remedy for enforcement of those rights and these remedial rights are made a fundamental
right being included in Part III. The decision in the landmark judgement of MC Mehta v.
Union of India5 expanded the scope of Article 32 to include social interest litigation as well.
The remedial relief now includes compensation in needed circumstances by the authority.

2
Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722 SC 1996.
3
S.P Gupta v. UOI, AIR 1982 SC 149.
4
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
5
MC Mehta v. Union of India, AIR 1987 SC 1087

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In the case of Bandhua Mukti Morcha v. Union of India,6 it was observed that:

“It is the fundamental Right of everyone is this country…to live with human dignity free
from exploitation. This Right to live with human dignity enshrined in Article 21 derives its
life breath from the directive principles and state policy and particularly clause (e) and (f)
of Article 39 and Article 41 and 42. The right to live with human dignity which is included
in the term right to live under Article 21 of the Indian Constitution is one of the main
aspects and a Constitutional value and the main target of the Indian Constitution”.

“Article 21 lies at the soul of the constitution of India. If any individual, including an
individual not being a citizen, is aggrieved by the action of the State brought about by law
under Article 13, and such action leads to a violation of the right to life and liberty of such an
individual, then a writ petition can be filed under Art 32 to the Supreme court or under Art
226 to the High Court”.7

1.3 ENCOUNTER- KILLING VIOLATE THE PRINCIPLE OF FREE AND FAIR

TRIAL.

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 Bihar8

The Supreme Court also equated extra-judicial killings with state-sponsored

terrorist and held that they are not recognized as legal by the Republic of Indraprastha
criminal justice system.9

Under Article 22 of the Constitution, the right of an accused person to be defended by an

advocate of his choice in recognized as a fundamental night. 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 as stated in State of Uttar Pradesh v. Naresh and Ors10.

In the case of Rohtash Kumar v. State of Haryana11, 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
6
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
7
2 DD BASU, CONSTITUTION OF INDIA (2010).
8
Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369.
9
Om Prakash v. State of Jharkhand, (2012) 12 SCC 72.
10
State of Uttar Pradesh v. Naresh and Ors., (2011) 4 SCC 324.
11
Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434.

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and the fact that no policemen had been injured in the incident. It is also applicable in Vivek
Dus case12, where police officers were condemned by the Supreme Court in 2013 while
holding that an encounter by the police was fake.

In 2014, the Supreme Court in People’s Union for Civil Liberties v. State of Maharashtra
& Ors. reiterated that "killings in police encounters affect the credibility of the rule of law
and the administration of the criminal justice system"

Discussing about right against custodial violence and death in police lock-ups or encounters,
relying upon the right to life and liberty under Article 21 the court has given detailed
directions to be observed by the police authorities against custodial violence and death of the
accused in police lock-ups as well as in cases of encounter deaths.13

The Supreme court’s view on the violation of Article 21 in Nilabati Behera v. State of
Orissa14finds support from the decisions of this Court in the Bhagalpur Blinding cases
wherein it was said that the court is not helpless to grant relief in a case of violation of the
right to life and personal liberty, and it should be prepared “to forge new tools and devise
new remedies” for the purpose of vindicating these precious fundamental rights.

It was also indicated that the procedure suitable in the facts of the case must be adopted for
conducting the inquiry, needed to ascertain the necessary facts, for granting the relief, as the
available mode of redressal, for enforcement of the guaranteed fundamental rights. More
recently in Union Carbide Corporation. v. Union of India 15 Justice Misra stated that “we
have to develop our own law and if we find that it is necessary to construct a new principle of
liability to deal with an unusual situation which has arisen and which is likely to arise in
future, there is no reason why we should hesitate to evolve such principle of liability.” To
the same effect are the observations of Justice Venkatachaliah who rendered the leading
judgment in the Bhopal gas tragedy case16 with regard to the court's power to grant relief.

The right to fair trial is not expressly mentioned in any article of the Constitution but is very
much an important aspect of life and liberty protected in Article 21-The fair trial for a
criminal offence, the court has observed, "consists not only in technical observance of the

12
Vivek Dus Batra v. Union of India, AIR 2013 SC 1416.
13
People’s Union for Civil Liberties v. State of Maharashtra & Ors., (2014) 10 SCC 635.
14
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
15
Union Carbide Corporation. v. Union of India, (1991) 4 SCC 584.
16
Ibid.

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frame, and forms of law, but also in recognition and just application of its principles in
substance, to find out the truth and prevent miscarriage of justice”.17

In the present case, the petitioners are an NGO and have no personal interest in this present
petition against the Respondent whereas the family members of the deceased are also the
party to this case and they do have a personal interest in this as are the relatives of the
victims.

There has been purely a violation of fundamental rights of innocent under-trials and fellow
citizens who were victimized at the hands of the police officials through fake encounter
killing.

Also, Article 6(1) of Part III of the International Covenant on Civil and Political
Rights states that “Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life”. The ICCPR indicates
the right to life norm is non-derogable.

The fundamental rights of innocent under-trials accused have been violated, they have the
locus standi as well as the sufficient cause of action to approach the Supreme Court and
therefore this writ petition is maintainable under Article 32 of the Indian Constitution.

17
Zahira Habibullah Sheikh v. State of Gujrat (2006) 3 SCC 374.

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ISSUE II

WHETHER THE ACT OF KILLING THE ALLEGED SIX RAPE ACCUSED BY

THE POLICE LED TO THE VIOLATION OF DUE PROCESS ESTABLISHED BY
LAW AND THE RIGHT TO FAIR TRIAL UNDER ARTICLE 21 OF THE
CONSTITUTION OF THE REPUBLIC OF INDRAPRASTHA?

The counsels for the petitioners most humbly submit before this Hon’ble Court that the brutal
and inhumane act of police officers not only was a failure in their duty to protect the
fundamental right to life but on the contrary transformed them to be the predators of the
fundamental right to life under Article 21 as the six accused were gunned down without any
opportunity of fair trial given and the procedure established to be followed. The killing of six
accused who were not yet convicted led to a violation of their fundamental right under Article
21 and the basic principle of Natural Justice ‘Audi Alteram Partem’.

2.1 THE FUNDAMENTAL RIGHT UNDER ARTICLE 21

Article 21 of the Constitution of Republic of Indraprastha which provides that “no person
shall be deprived of his life and personal liberty except in accordance with the procedure
adopted by law”18 has been violated in the present case.

In the case of Maneka Gandhi v. Union of India19, the Supreme Court pronounced that the
right to life embodied in Article 21 of the Constitution, is not merely a physical right but also
18
Id. at 13.
19
Maneka Gandhi v. UOI, (1978) 2 SCC 621.

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includes within its ambit, the right to live with human dignity. Further, in Kartar Singh v.
State of Punjab20, 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 partem21 should not be violated. Even the alleged 'criminals’ in the case are citizens
and are entitled to all fundamental rights including that under Article 21 of the Constitution 22.
In the case of Sunil Batra v. Delhi Administration23, 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 observance of due procedural safeguards. Here the police
personnel have doctored a "fake encounter” in transit.

In Nirmal Singh Kahlon v. State of Punjab 24, 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. The presumption of innocence, an important concept in criminal law,
is defeated if such a power is given to an arresting authority.

In Rohtash Kumar v. State of Haryana25 it was held by the Hon’ble Supreme Court that

“10. …. But merely because a person is a dreaded criminal or a proclaimed offender,

he cannot be killed in cold blood. The police must make an effort to arrest such
accused. In a given case if a dreaded criminal launches a murderous attack on the police
to prevent them from doing their duty, the police may have to retaliate and, in that
retaliation, such a criminal may get killed. That could be a case of a genuine encounter.
But in the facts of this case, we are unable to draw such a conclusion.”

In Om Prakash v. State of Jharkhand26 and Rohtash Kumar v. State of Haryana27, 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.

20
Kartar Singh v. State of Punjab, (1962) 2 SCC 395.
21
Other side should be heard.
22
Extra Judicial Execution Victim Families Association & Anr. v. UOI, (2016) 14 SCC 578.
23
Sunil Batra v. Delhi Administration, (1980) 2 SCC 557.
24
Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441.
25
Id. at 11.
26
Id. at 9.
27
Id. at 11.

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This has also been acknowledged by the Hon’ble Court in several judicial pronouncements
that merely because a person is a dreaded criminal or is accused of an offence, the police
officers cannot kill them in cold blood and must make all efforts to arrest them 28. The police
continue to conduct and justify encounters despite the apex court's observations and
recommendations because, firstly, the Section 46 of Code of Criminal Procedure is
susceptible to a way too liberal interpretation, and secondly, it can be easily misused with
almost no accountability. It not only violates the “procedure established by law” test
[Maneka Gandhi v. Union of India29], but it is also highly improbable that the legislature
intended such severe legal consequences, which squarely fall outside the scope
of CrPC's purpose.”30

Article 21 of the Constitution guarantees the right to life and personal liberty of an individual,
except as per “procedure established by law.” The courts have recognized several violations
of the human rights of individuals by the police. In the case of Raghbir Singh v Haryana31,
the court stated that police torture is a shameful act by the guardian of the society and it
infringes and hinders human rights guaranteed to all individuals under Article 21 of the
Constitution.32

In D.K. Basu v. State of West Bengal33, the court stated that in a civilized and democratic
society which is governed by the rule of law, “Any form of torture or cruel, inhuman or
degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether
it occurs during investigation, interrogation or otherwise.” An act of torture by the
functionaries of a State “flouts the basic rights of citizens,” and the powers of the executive
had to be limited by the law.

In Francis Mullin v. Administrator34, the Supreme Court stated that

“....any form of torture or cruel, inhuman or degrading treatment would be offensive to

human dignity and constitute an inroad into this right to live and it would, on this view, be
prohibited by Article 21 unless it is in accordance with the procedure prescribed by law,
but no law which authorises and no procedure which leads to such torture or cruel,

28
Id. at 9.
29
Id. at 19.
30
Viewing Extra-Judicial Killings in Indian Cop Films through a Legal Lens, 3.1 JCLJ (2022) 896.
31
Raghbir Singh v. State of Haryana, AIR 1980 SC 1087.
32
Police Custody and Human Rights Violations in India, Muskan Bhuteria, The Society of Advancement of
Criminal Justice.
33
D.K Basu v. State of West Bengal (1997) 1 SCC 416.
34
Francis Mullin v. Administrator, (1981) SCC 1 608.

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inhuman or degrading treatment can ever stand the test of reasonableness and non-
arbitrariness: it would plainly be unconstitutional and void as being violative of Articles
14 and 21.”35

2.2 NATURE OF INJURY CAUSED OR LIKELY TO BE CAUSED TO THE PUBLIC

The action of respondent police officials in killing the six-rape accused in a staged encounter
will further lead to even more police brutality and arbitrariness which will continue to
abrogate the fundamental rights of life, liberty, safety, security, law and order and equality
guaranteed under Articles 14 and Article 21 of the Constitution of the citizens of the Republic
of Indraprastha and subject them to inhumane conditions.

2.3 ENCOUNTER OF THE ALLEGED SIX RAPE ACCUSED BY THE POLICE

It is admitted by the police officials that they killed the six accused in order to defend
themselves and to prevent them from fleeing the law.

However, it may be pointed out that there are a few lapses in their story which clearly convey
that such a story is an eyewash to cloak the brutal and inhumane acts of the police officers

1. It is admitted that on 24-01-23, the police presented only four of the six arrested accused
in front of the local magistrate. This admitted fact clearly violates Article 22 of the
constitution and the fundamental rights of the other 2 accused. This also violated the
legal procedure and the rights of the two accused were compromised from the beginning.
This fact was not addressed by the investigator in charge.

2. The investigator in charge stated that the vehicle carrying all six accused met with an
accident subsequent to which the encounter occurred. However, the claim of this
accident sounds very convenient to the case of the police and there is no explanation as
to how the accident occurred. It appears that it is simply a lie begotten to furnish the
backdrop of the encounter.

3. It is not specified as to exactly how the two accused got hold of the gun even in the
presence of 10 police officials. The lack of explanation for this lapse is not an
irregularity, but a very essential fact, that cannot be explained. It is highly improbable
35
Ibid.

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that the two cuffed accused persons somehow managed to steal the officer’s guns in the
presence of 10 armed police officers. This element of their fabricated story sounds
especially farcical.

4. Assuming but not admitting that the accused persons actually got hold of the pistol, it is
highly improbable that they even knew as to how to operate the guns issued to the police.
As per the report of the inquiry commission headed by Justice V. S. Sirpurkar in the
Priyanka Reddy case36 appointed by the Supreme Court, it was determined after an
investigation that any layman accused is not likely to have the knowledge of the working
of the 9 mm RFI pistol if he had never handled the weapon before.37
5. The investigator in charge also stated that Natu and Raju snatched the revolvers from the
constables while they were taken to the court and shot two rounds in the air. However, it
is not logically coherent as to why the accused would fire two rounds in the air and not
aim the gun at the police officials to further their escape. If they were as deadly as the
police claimed in their encounter statement, then why did they not shoot at the police
officers. This seems like an incoherent proposition that an armed and deadly accused
person facing charges of rape and possibly the death penalty would simply aim anywhere
but the police officers who were in charge of their custody. This statement by the
investigator in charge has no bearing in common sense whatsoever.

6. It was also stated by the investigator in charge that Pappu choked the police constable.
However, no follow-up information to this is provided. The investigator in charge has
not mentioned any injuries or death caused to the victim of such choking This, among
others, also seems like a lie begotten to make the accused appear as a threat to the lives
of the officers.

The whole of the above lapses in the investigation make it insufficient to conclusively
determine the innocence of the police officers. These are not merely lapses, but profound
inconsistencies all of which lead to the inference that the police staged this murder under the
guise of an encounter. The investigator in charge did not consider the above lapses and
therefore his statement leads to an inference which is favourable to the case of the police
officers.

36
G.S. Mani & Anr. v. Union of India, Writ Petition (Civil) No. 1192/2020.
37
Inquiry Commission Report, page 269.

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In Prakash Kadam v. Ramprasad Vishwananath Gupta,38 a division bench of the Supreme

Court went to the extent of stating that:

“26. In our opinion, the High Court was perfectly justified in cancelling the bail granted
to the appellant accused. The appellant-accused 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?”The court saw this in connection with the
judgment of this Court in CBI v. Kishore Singh39”

It was also held that:

“27. 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 murders 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.

28. 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 Nuremberg 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 an illegal order, otherwise, he will be charged with 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.”40

In Munshi v. State of M.P.41, the court stated that often due to the “ties of brotherhood,”
police officials tend to remain silent and even pervert the truth to protect their colleagues.
Often, adherence to the principle of “proof beyond reasonable doubt” leads to miscarriage of
38
Prakash Kadam v. Ramprasad Vishwananath Gupta, (2011)6 SCC 189.
39
CBI v. Kishore Singh, (2011) 6 SCC 369.
40
Id. at 36.
41
Munshi Singh Gautum v. State of M.P. (2004) SC 0964.

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justice owing to the ground realities. To preserve the foundation of the criminal justice
system, the court stated that it is essential to use stern measures to keep a check on such acts,
which would otherwise lead to anarchy and authoritarianism by the “men in khakhi.”

Hon’ble Court in the case of People’s Union for Civil Liberties & Anr. vs. State of
Maharashtra & Ors42 has held and observed that Article 21 of the Constitution of India
guarantees “right to live with human dignity”. Any violation of human rights is viewed
seriously by this Court as the right to life is the most precious right guaranteed by Article 21
of the Constitution. The guarantee by Article 21 is available to every person and even the
State has no authority to violate that right.

Because no one including the investigating agency like the police has the right to punish any
accused without due process of law. The Court alone after applying all the procedures and
laws and affording an opportunity for all the right of free and fair trial and hearing can
impose punishment of imprisonment or death sentence. Here the respondent police have
become heroes in the public domain as they have killed the alleged rapists.

In Chaitanya Kalbagh & Ors. v. State of UP 43, this Court was concerned with a writ petition
filed under Article 32 of the Constitution wherein an impartial investigation was sought for
the alleged killing of 299 persons in the police encounters. The Court observed that in the
facts and circumstances presented before it, there was an imperative need to ensure that the
guardians of law and order do in fact observe the code of discipline expected of them and that
they function strictly as the protectors of innocent citizens.

Hence, there is a complete violation of the right to life under Article 21 since there was no
opportunity of fair trial given to the six accused and the procedure established by law by not
duly followed. The killing of six accused who were not yet convicted led to the violation of
their fundamental right. The nation and the Hon’ble High Court of Devsena has turned this
act of brutality and Police-Raj into an “act of gallantry”, this impaired form of justice needs
to be reformed.

42
Id. at 13.
43
Chaitanya Kalbagh & Ors. v. State of UP, AIR 1989 SC 1452.

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ISSUE III

WHETHER THE HIGH COURT ERRED IN ITS JUDGEMENT ACQUITING THE

POLICE OFFICER OF EXTRA-JUDICIAL KILLING?

The Hon’ble High Court of Devsena held in this case as follows:

“The Police had no other option but to shoot all the six 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 gallantry and sudden grave provocation
to counter the situation in hand.”44

It is humbly submitted that the Hon’ble High Court of Devsena has erred in its decision of
acquitting the police officers and to support the same there are multiple claims which are
submitted as follows:

3.1 ERROR IN THE JUDGEMENT OF HIGH COURT OF DEVASANA

In view of the above-stated lapses and lies in the investigation, it most certainly leads to the
conclusion that such an investigation was partially in the favour of the police officers who
staged the encounter. The investigator in charge did not consider any gaps in the story and
also did not chase any leads or inconsistency.

The Hon'ble High Court erred in its judgement because it relied on the dubious and
misleading investigation and the statement of the investigator in charge. In the present case,
the High Court should have established an enquiry committee to look after the cases alleged
of staged encounters as stated in B.G. Verghese v. Union of India45 which is as follows:

44
Decision of the Hon’ble High Court of Devsena.
45
B.G. Verghese v. Union of India, (2013) 11 SCC 525.

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“8. Having regard to the fact that a Monitoring Authority is put in place and a former
Judge of this Court is its chairman, we consider it desirable, at the first instance, to
request the Chairman of the Monitoring Authority to look into all the cases of alleged
fake encounters as enumerated in these two writ petitions and to have them thoroughly
investigated so that full and complete truth comes to light in each case.

9. The Chairman of the Monitoring Authority may give hearing to the petitioners in these
cases or to any aggrieved person, including the kin or associates of the victims of the
encounter deaths. For investigating the cases, the Chairman of the Monitoring Authority
may constitute different teams of officers from within the Special Task Force or from
outside. Needless to say that while constituting investigating teams, the Chairman would
bear in mind the sensitivity of the matter and the possibility of interestedness of some of
the officers in the State Police.

10. It will be open to the Chairman, for the purpose of inquiry, to call for the police
records/court records or the record from the National Human Rights Commission
(NHRC) relating to the cases under inquiry. Any case which is under investigation by
orders of this Court or by the Gujarat High Court will not come within the inquiry by the
Chairman of the Monitoring Authority in terms of this order. If the Chairman of the
Monitoring Authority considers it just, reasonable and proper, it will also be open to him
to pass directions for grant of interim or final monetary compensation to the kin of the
victims of the alleged fake encounters.”

3.2 THE SUPREME COURT IN VARIOUS INSTANCES, HAS CONDEMNED

POLICE BRUTALITIES AND ENCOUNTER- KILLINGS

In the case of Extra-Judicial Execution Victim Families Assn. v. Union of India 46, the term
‘extra-judicial killing’ is explained as:

“204. From the above, it is abundantly clear 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. Therefore, while a victim of aggression has a right of private defence or
self-defence (recognised by Sections 96 to 106 IPC) if that victim exceeds the right of
private defence or self-defence by using excessive force or retaliatory measures, he then

46
Id. at 22.

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becomes an aggressor and commits a punishable offence. Unfortunately, occasionally, the

use of excessive force or retaliation leads to the death of the original aggressor. When the
State uses such excessive or retaliatory force leading to death, it is referred to as an extra-
judicial killing or an extra-judicial execution or as this Court put it in People's Union for
Civil Liberties v. Union of India47 it is called “administrative liquidation”. Society and
the courts obviously cannot and do not accept such a death caused by the State since it is
destructive of the rule of law and plainly unconstitutional.”

Police brutalities and encounter-killings have always been condemned by the Apex Court of
the land. The Courts have held such acts to be against the rule of law, unfair, unjust, and
unconstitutional.

The Supreme Court, in the case of Inder Singh v. State of Punjab48, emaciated 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”

In the case of Om Prakash v. State of Jharkhand49, 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 amour to State-sponsored terrorism”

In a 2014 decision of Arnesh Kumar v. State of Bihar 50, the Supreme Court condemned
Police brutalities and opined:

"The Police has not come out of the colonial image. Despite six decades of independence,
the Police is largely considered as a tool of harassment, and oppression and surely not
considered friend of the public”

47
People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 433.
48
Inder Singh v. State of Punjab, (1995) 3SCC 702, Para 10.
49
Id. at 9.
50
Arnesh Kumar v. State of Bihar, (2014) 8SCC 72 Para 42.

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In Prakash Kadam v. Ramprasad Vishwanath Gupta,51 the Supreme Court 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”

In Prakash Kadam v. Ramprasad Vishwanath Gupta52, according to the judge, extrajudicial

executions that are not carried out in an emergency are cold and merciless assassinations by
people who must respect the law. So, in order to incite terror in police officers' thoughts so as
not to misuse their authority, a police officer who takes a person's life illegally under the
shadow of executing his duties will be considered in “rare situations,” and the person
responsible will be condemned to death.

In People's Union for Civil Liberties v. State of Maharashtra 53, the Apex Court noticed 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. While
discussing extra-judicial killings has been held that not even the 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 guidelines for the independent investigation of encounter killings which has
to be followed by each and every concerned official.

Also, the Court had warned policemen that they would not be excused for committing murder
in the name of an encounter.

3.3 FAULTY & PARTIAL INVESTIGATION AND HARASSMENT BY POLICE

It is humbly submitted that:

1. During the course of the investigation, in the prior FIR, the police harassed the family of
the deceased accused. That the police officers used to send death threats to the six
accused and that the police department used hate speech against the accused.

51
Id. at 38.
52
Ibid.
53
Id. at 13.

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2. It is submitted that the families of the accused persons on several occasions had
apprehended that the lives of the accused were in danger, which later turned out to be
true as they indeed were killed by the police officers. This was also not considered by
the investigator in charge which further adds to the fact that the investigation of the
encounter was highly biased and in favour of the police officers.

3. That the police succumbed to the pressure of the masses and brutally killed the accused
Under the influence of a media trial. The entire country by way of social media
condemned the accused, calling them the devils and demanding their death. The police
officers brought this wish of the public to fruition, with the incentive of receiving
commendation by the masses. Their act of killing was also fueled by their own partiality
against the accused person and hence they brutally murdered the accused in their
custody. They were highly applauded and the incident of the encounter was cherished.
The acts of the police were also branded as an “Act of Gallantry” by the public and
several politicians.

4. That the High Court of Devsena passed an erroneous judgement in view of the faulty
and partial investigation as evident by the lapses stated above. The High Court accepted
the statement of the investigator in charge on its face and no attempt was made to
logically reconcile any inconsistencies.

3.4 THE INFLUENCE OF PUBLIC OPINION AND MEDIA-TIRAL ON THE

DECISION OF THE HON’BLE HIGH COURT OF DEVSENA

In the case, R.K. Anand v. Delhi High Court54, the term media trial is defined as:

“293. What is trial by media? The expression “trial by media” is defined to mean:The
impact of television and newspaper coverage on a person's reputation by creating a
widespread perception of guilt regardless of any verdict in a court of law. During high-
publicity court cases, the media are often accused of provoking an atmosphere of public
hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but
means that, regardless of the result of the trial, in public perception, the accused is
already held guilty and would not be able to live the rest of their life without intense
public scrutiny.”

54
R.K. Anand v. Delhi High Court,(2009) 8 SCC 106.

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330. It is not our intent here to lay down any reformist agenda for the media. Any attempt
to control and regulate the media from outside is likely to cause more harm than good.
The norms to regulate the media and to raise its professional standards must come from
inside.”55

As stated in PUCL v. State of Maharashtra56,

“19. It is equally important to emphasise that the nature of the disclosure which is made
by the police in the course of media briefings should be objective in nature and should not
consist of a subjective opinion prejudging the guilt of the accused. The guidelines must
duly factor in the need to ensure that the disclosure does not result in a media trial so as
to allow for the prejudging of the guilt of the accused. Media trials are liable to result in a
derailment of justice by impacting upon the evidence which would be adduced and its
assessment by the adjudicating authorities.”

Hon’ble court in the case of State of Maharashtra v. Rajendra Jawanmal Gandhi 57stated
that:

“37. … There is a procedure established by law governing the conduct of the trial of a
person accused of an offence. A trial by press, electronic media or public agitation is the
very antithesis of the rule of law. It can lead to a miscarriage of justice. A Judge has to
guard himself against any such pressure and he is to be guided strictly by rules of law. If
he finds the person guilty of an offence, he is then to address himself to the question of the
sentence to be awarded to him in accordance with the provisions of law. While imposing
the sentence of fine and directing payment of the whole or certain portion of it to the
person aggrieved, the court has also to go into the question of damage caused to the
victim and even to her family. As a matter of fact, the crime is not only against the victim
it is against the whole society as well. Since late, there has been a spurt in crimes relating
to sexual offences.”

In the case of Prashant Bhushan, In re (Contempt Matter) 58 it was discussed that:

55
Ibid.
56
Id. at 13.
57
State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.
58
Prashant Bhushan, In Re 9Contempt Matter), (2021) 3 SCC 160.

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“62. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra 59, the question
of public opinion in capital sentencing was considered. It was observed that the
perception of the public is extraneous to conviction as well as sentencing.

“2(F)” Public opinion in capital sentencing

80. It is also to be pointed out that public opinion is difficult to fit in the rarest of
rare matrix. People's perception of crime is neither an objective circumstance relating to
crime nor to the criminal. Perception of the public is extraneous to conviction as also
sentencing, at least in capital sentencing according to the mandate of Bachan Singh60.

87. Public opinion may also run counter to the rule of law and constitutionalism. Bhagalpur
61
Blinding case [Ed. : The reference seems to be to Khatri (II) v. State of Bihar or the
recent spate of attacks on the right to trial of the accused in the Bombay Bomb Blast
case [Ed. : The reference seems to be to Sanjay Dutt v. State62 are recent examples. We are
also not oblivious to the danger of capital sentencing becoming a spectacle in the media. If a
media trial is a possibility, sentencing by media cannot be ruled out. …’”

“The judgement of the high court severely deprived the human and fundamental rights of
the accused persons by relying on a biased and eye-washing investigation which
deliberately attempted to conceal the truth.”63

59
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
60
Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
61
Khatri (II) v. State of Bihar, (1981) 1 SCC 627.
62
Sanjay Dutt v. State, (1994) 5 SCC 410.
63
Ibid.

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ISSUE IV

WHETHER THERE WAS BLATANT VIOLATION OF HUMAN RIGHTS?

The holy land of Indraprastha has always upheld the principle of ‘justice for all’ and has been
a strong proponent of human rights. It is humbly submitted to the Hon’ble Court that there is
a gross violation of human rights in the present case.

Human rights violations occur when basic rights and freedoms are denied. These violations
can take place anywhere in the world and can involve a range of actions, such as preventing
fair elections or limiting access to resources. It is important to note that human rights
violations are different from abuses. The former are typically committed by the state or as a
result of the state's failure to prevent the violation, while the latter are committed by non-state
actors such as rebel groups or individuals.

“Human rights" as defined in Section 2(d) of The Protection of Human Rights Act, means
the rights relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by courts in India.

4.1 INVOLVEMENT OF THE NATIONAL HUMAN RIGHTS COMMISSION

National Human Rights Commission can suo moto take cognizance and appoint a third party
for investigation.

As per section 12 of the Protection of Human Rights Act, the Commission shall perform all
or any of the following functions, namely: - (a) inquire, suo motu or on a petition presented to
it by a victim or any person on his behalf, into the complaint of- (i) violation of human rights
or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant.

The killing of the 6 alleged rape accused constitutes a blatant violation of the human rights of
the deceased and the accused person.

The National Human Rights Commission observed

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"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 as 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"64

In Peoples Union for Civil Liberties v. Union of India,65 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 Article 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. In the above case, the National Human Rights Commission sent a notice to the UP
government related to the "encounters” in 2017, observing that "police personnel in the State
are feeling free, meaning 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"

In Commissioner of Police v. Mehar Singh66," 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 society & even the 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 67, 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. Thus, in the present case, the family members of the victims are
entitled to compensation for the loss of the lives of their family members.

In the landmark Supreme Court decision in Justice K.S. Puttuswamy v. Union of India68, 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
64
Id. at 38.
65
Peoples Union for Civil Liberties v. Union of India, (2005) 2 SCC 436.
66
Commissioner of Police v. Mehar Singh, AIR 2013 SC 2861.
67
Id. at 22.
68
K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1.

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construed in a reasonable manner and be attributed the 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.

According to the “Manual on Human Rights for Police Officers” issued by the National
Human Rights Commission of India, the law clearly states that:

“No one including the police has an unqualified right to take the life of another person.
Causing death of a person by a police officer may amount to murder or culpable homicide
not amounting to murder, unless it is established that the causing of death is for
justiciable reasons. If a police officer kills someone in an encounter, he/she must prove
that the death was caused either in the legitimate exercise of the right of private defence
or in the use of force, proportional to the resistance offered, while arresting a person
accused of an offence punishable with death or life imprisonment. This can only be
ascertained by a proper investigation and not otherwise. The National Police Commission
in its report powerfully recommended that fake encounters are to be sternly discouraged
by the police leaders, as this is not a remedy for the situation. The answer is to strengthen
the law and legal processes.”

The phenomenon of fake encounters brings great disrepute to the image of a country that is a
constitutional democracy and claims to uphold the principles of the rule of law and natural
justice judicial institutions must win back the trust of the people. the policeman involved in
the commission of such offenses should not be let off the hook and an example should be set
in order to deter such acts of barbarism in the future.

4.2 LACK OF JUSTIFICATION OF ACTION OF POLICE IN TERMS OF SELF-

DEFENCE

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 to the inflicting of more harm than it is necessary to inflict for the
purpose of defence”

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Further, the right can extend to causing of death of an assailant only in very specific
circumstances enumerated in Section 100, IPC which deals with circumstances When the
right of private defence of the body extends to causing death.

The facts make it clear that the accused only tried to escape by snatching a gun from the
police. But all six of them were shot down dead by the police. Shooting down the six
escapees who posed no threat, therefore, amounts to the inflicting of more harm than
necessary for the purpose of defence. Herein, though the two accused snatched a police gun
and tried to escape, but the action of the policemen of shooting them on vital body parts 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.

In the case of Extra Judicial Execution Victim Families Association v. Union of India 69,
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 kin
of deceased victims to receive monetary compensation in addition to the vindication of
human rights violations arising out of fake encounters by the Police, through writ petitions,
has also been expatiated in this case.

In the case of RS. Sodhi Advocate v. State of UP, and Ors 70, wherein 10 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 fake encounter, the matter has to be
inquired into and investigated closely.

In the case of Satyavir Singh Rathi v. State,71 the matter before this Court arose from the
FIR registered against police personnel involved in a shoot-out for an offence punishable
under Section 302 r/w section 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 on Exception 3 of Section 300 of IPC72

In the case of Rahish Kumar v. State of Haryana 73, a two-judge Bench of this Court was
contented with the killing of a person in an encounter by the police officials. Having found
that the death took place in a fake police encounter, the Count directed an independent

69
Id. at 22.
70
RS. Sodhi Advocate v. State of UP and Ors. ,1994 Supp (1) SCC 143.
71
Satyavir Singh Rathi v. State, (2011) 6 SCC 1.
72
Indian Penal Code, 1860, Sec.300 (Exception 3), 1860 (India).
73
Rahish Kumar v. State of Haryana, (2013) 14 SCC 434.

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investigating agency to conduct the investigation so that the guilty could be

brought to justice.

The “Manual on Human Rights for Police Officers” also explains the possible reasons
behind the staged police encounters as follows:

“False encounters are, at times, staged by police officers because there is pressure by the
political masters to show quick results by means, fair or foul. The public, particularly the
educated middle class, also do not mind if the police take the law in their own hands and
become executioners, particularly with regard to the dreaded criminals. - Police dilemma
is compounded by the slow moving criminal justice system in the country. Trials drag on
interminably for years and the outcome remains uncertain, particularly in respect of the
criminals enjoying money and muscle power. Hence, the pressure on the police for short
cut, and extra legal methods. Very often there is connivance of the political bosses and
support of the public too.12 - Power, control and authority are the reflexes which work
while the policemen gun down criminals and even unarmed innocent people at times,
during fake encounters. They know they can get away with it. In the majority of the cases
that have been reported to the Commission regarding cases of alleged fake encounters,
the factual details are similar, for instance the criminals were shot dead while trying to
run away after firing on police or in self-defence.”

4.3 VIOLATION OF INTERNATIONAL LAWS

There is a gross violation of international laws related to Human Rights. This is stated as
follows:

International Covenant on Civil and Political Rights

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) of Part III of the International Covenant on Civil and Political Rights
states that “Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life ”. The ICCPR indicates
the right-to-life norm is non-derogable.

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In the case of People's Union for Civil Liberties v. Union of India74 it was held that:

“40. Again in People's Union for Civil Liberties v. Union of India75 dealing with the
criticism against reading of conventions and covenants into the national laws, it was
opined:

“13. For the present, it would suffice to state that the provisions of the covenant,
which elucidate and go to effectuate the fundamental rights guaranteed by our
Constitution, can certainly be relied upon by courts as facets of those fundamental
rights and hence, enforceable as such. So far as multilateral treaties are concerned,
the law is, of course, different — and definite.””

Universal Declaration of Human Rights

Articles 3 and 5 of the Universal Declaration of Human Rights provide 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”

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”.

Article 11 of the UDHR stipulates that:

"Everyone charged with a penal offence has the right to be presumed innocent until
proven guilty according to low public trial at which he has had all the guarantee
necessary for his defence."

4.4 NEED FOR NEW REMEDIES FOR VIOLATION OF THE FUNDAMENTAL

AND HUMAN RIGHTS

There is a need to devise new tools and new remedies for proper justice to be served to the
victims and their families. A civil relief of compensation would not serve the ends of justice
when there has been a blatant violation of the fundamental rights of the citizens.

74
People's Union for Civil Liberties v. Union of India, (2005) 2 SCC 436.
75
Id. at 47.

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The Supreme Court in the case of Nilabati Behara v. State of Orissa 76 highlighted the need
for new tools and remedies to deal with such cases.

“19. This view finds support from the decisions of this Court in the Bhagalpur Blinding
cases: Khatri (II) v. State of Bihar77 and Khatri (IV) v. State of Bihar78 wherein it was
said that the court is not helpless to grant relief in a case of violation of the right to life
and personal liberty, and it should be prepared ‘to forge new tools and devise new
remedies’ for the purpose of vindicating these precious fundamental rights. It was also
indicated that the procedure suitable in the facts of the case must be adopted for
conducting the inquiry, needed to ascertain the necessary facts, for granting the relief,
as the available mode of redress, for enforcement of the guaranteed fundamental rights.
More recently in Union Carbide Corpn. v. Union of India79, Misra, CJ. stated that ‘we
have to develop our own law and if we find that it is necessary to construct a new
principle of liability to deal with an unusual situation which has arisen and which is
likely to arise in future … there is no reason why we should hesitate to evolve such
principle of liability …’. To the same effect are the observations of Venkatachaliah, J. (as
he then was), who rendered the leading judgment in the Bhopal gas case with regard to
the court's power to grant relief.

20. We respectfully concur with the view that the court is not helpless and the wide
powers given to this Court by Article 32, which itself is a fundamental right, imposes a
constitutional obligation on this Court to forge such new tools, which may be necessary
for doing complete justice and enforcing the fundamental rights guaranteed in the
Constitution, which enable the award of monetary compensation in appropriate cases,
where that is the only mode of redress available. The power available to this Court under
Article 142 is also an enabling provision on this behalf. The contrary view would not
merely render the court powerless and the constitutional guarantee a mirage, but may, in
certain situations, be an incentive to extinguish life, if, for the extreme contravention, the
court is powerless to grant any relief against the State, except by punishment of the
wrongdoer for the resulting offence, and recovery of damages under private law, by the
ordinary process. If the guarantee that deprivation of life and personal liberty cannot be
made except in accordance with law, is to be real, the enforcement of the right in case of

76
Id. at 14.
77
Id. at 61.
78
Khatri (IV) v. State of Bihar, (1981) 2 SCC 493.
79
Id. at 15.

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every contravention must also be possible in the constitutional scheme, the mode of
redress being that which is appropriate in the facts of each case. This remedy in public
law has to be more readily available when invoked by the have-nots, who are not
possessed of the wherewithal for enforcement of their rights in private law, even though
its exercise is to be tempered by judicial restraint to avoid circumvention of private law
remedies.

It is axiomatic that convicts, prisoners or undertrials are not denuded of their

fundamental rights under Article 21 and it is only such restrictions, as are permitted by
law, which can be imposed on the enjoyment of the fundamental right by such persons.
It is an obligation of the State to ensure that there is no infringement of the indefeasible
rights of a citizen to life, except in accordance with the law, while the citizen is in its
custody. The precious right guaranteed by Article 21 of the Constitution of India cannot
be denied to convicts, undertrials or other prisoners in custody, except according to
procedure established by law. There is a great responsibility on the police or prison
authorities to ensure that the citizen in its custody is not deprived of his right to life. His
liberty is in the very nature of things circumscribed by the very fact of his confinement and
therefore his interest in the limited liberty left to him is rather precious. The duty of care
on the part of the State is strict and admits of no exceptions. The wrongdoer is
accountable and the State is responsible if the person in custody of the police is deprived
of his life except according to the procedure established by law. I agree with Justice
Verma, that the defence of “sovereign immunity” in such cases is not available to the
State and in fairness to Mr Altaf Ahmed it may be recorded that he raised no such defence
either. …

32. Adverting to the grant of relief to the heirs of a victim of custodial death for the
infraction or invasion of his rights guaranteed under Article 21 of the Constitution of
India, it is not always enough to relegate him to the ordinary remedy of a civil suit to
claim damages for the tortious act of the State as that remedy in private law indeed is
available to the aggrieved party. The citizen complaining of the infringement of the
indefeasible right under Article 21 of the Constitution cannot be told that for the
established violation of the fundamental right to life, he cannot get any relief under the
public law by the courts exercising writ jurisdiction. The primary source of the public
law proceedings stems from the prerogative writs and the courts have, therefore, evolved

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‘new tools’ to give relief in public law by moulding it according to the situation with a
view to preserve and protect the Rule of Law.”

Hence, from the above arguments and supported cases in correlation with the present facts
and circumstances, we can very well conclude that the actions of the police have resulted in a
gross violation of human rights in this case, leading to a grave loss of six innocent lives and
endangering the human rights of the citizens of Indraprastha.

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PRAYER

Therefore, in view of the facts and circumstances of the case, it is most respectfully prayed
that this Hon'ble Court may be pleased to: -

a) DECLARE that the present writ is maintainable under Article 32 of the constitution of
the Republic of Indraprastha, and
b) DECLARE the action of the police that resulted in the violation of Article 21 of the
Constitution of the Republic of Indraprastha as the accused were killed and their life
was taken away without fair trial and due procedure established by law being followed,
and
c) REDIRECT this matter under the surveillance of the National Human Rights
Commission as per the provision of The Protection of Human Rights Act, 1993, and
d) ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTION, ESPECIALLY IN
THE NATURE OF WRIT OF MANDAMUS calling for the records of Respondents
pertaining to the fake encounter killing of alleged six rape accused by the Police
personnels, shall be conducted by an independent agency like CBI, SIT, CID or any
other police team of another State Police under the supervision of a senior officer (at
least a level above the head of the police party engaged in the encounter and get the
concerned police officials who were involved in fake encounter, and
e) APPOINT an enquiry commission headed by a former or a sitting judge of the Supreme
Court due to the high-profile nature of the case to ascertain the evidence collected by
investigating agency, and
f) ISSUE AN APPROPRIATE WRIT OR ORDER directing the Supreme Court-
Monitored Investigating Agency to strictly comply with the 16 guidelines issued by this

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Hon’ble Court in the case of PUCL & Anr. vs. State of Maharashtra & Ors 80 in regard
to the investigation over fake encounter killing, and
g) AWARD compensation to the families of the accused as determined by the guidelines
issued by NHRC, and
h) And pass any other order in favour of the petitioner that it may deem fit in the ends of
justice, equity, and good conscience.

Sd/-

Counsel on behalf of the Petitioner

80
Id. at 13.

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