Dubious encounters cannot control crime, cure can't be worse than disease: Delhi court slams Delhi Police

A Delhi court while hearing an alleged encounter case, observed that dubious encounters cannot be used as a solution to control crime [State v. Rohit Gehlot]..The observation came from Chief Metropolitan Magistrate Vinod Kumar Meena in an application filed by a man who was allegedly wrongly taken from his home by the Delhi Police, put in illegal detention and shot in the leg as part of an alleged encounter..The Court also lamented in the order passed on Constitution Day (November 26) that instances of custodial violence are on the rise."This is matter of deep concern, as it is done/committed by a person who is supposed to be protector of citizens; it is committed under the shield of uniform and authority in a situation where victim is totally helpless. No doubt and the court is conscious of the fact that police has to perform a difficult and delicate task to preserve law and order but to deal with such a delicate situation, a balanced approach is needed. In any situation human legal constitutional fundamental rights must be preserved of all citizen. Dubious encounters cannot be used as solution to control crime as it has to be remembered that the cure cannot be worse than disease itself," the order said..The applicant was taken into custody in connection with the Mittal Sweet shootout case on November 2, the date on which the alleged encounter incident occurred. He was then taken to a hospital to treat the bullet wound on his leg. His family members came to know about the encounter/shoot out only through media reports published the next day.While the public prosecutor argued that information of his arrest was conveyed to a family member named Sunil, the Court noted that the arrest was formally made only on November 13. "The investigating agency waited for almost 11 days till he was shifted from DDU hospital to Tihar Jail...all these circumstances apparently demonstrate the attempt of investigation agency to keep the act regarding encounter of applicant under wraps from his family members and this delay in arrest was apparently staged, which further reflect on the malafide of the investigating agency surrounding the apprehension of the applicant," the order said.It further noted that the reply filed by investigating agency is conflicting and evasive. "It appears that a whole hearted effort has been made by investigating agency not to bring the factum of encounter to the fore," the Court said..On November 15, the Court had directed the concerned District Commissioner of Police to clarify his stance on the media articles, and to file a report. The same was not complied with.The Court took serious objection to this and observed that such indifferent attitude and disobedience of court orders by a head of District Police in a case where serious doubts have been raised, is a matter of serious concern."To utter surprise of this court and in total defiance of the orders of the court, the Worthy DCP has neither filed reply nor forwarded the same. The said reply is under signature of two ACPs and forwarded by DCP-1. Such indifferent attitude and consequent disobedience of orders of the court by a head of District Police in a case where serious doubts have been raised through the relevant material produced before the court, is matter of serious concern. When a senior officer does so, it causes pain to the judicial conscience and threat to the judicial authority," the order stated..The Court further observed that criminal antecedents and background cannot be a ground to crush legal/human/fundamental/constitutional rights of a person..On whether or not the encounter took place, the Court made it clear,"It is also worthy to mention here that the court is not/cannot decide upon the aspect of the impugned encounter, being staged/fake and/or not real, as the same has to be decided by appropriate authority/courts, at an appropriate stage as and when they would be seized of the matter."Regarding the aspect of preservation of evidence, the Court held that the fact that the police officials have neither heard nor allowed the father to meet with his son, there are chances that existing evidence may disappear or may be made to disappear..Taking a dim view of how the investigation was undertaken in this case, the Court called upon the Commissioner of Police to ensure that an independent investigation into the incident/encounter may be conducted by the CID or police team of another police station under the supervision of a senior officer..The Station House Officer was directed to preserve the CCTV footage of particular areas as well as the call records of two numbers belonging to the applicant..The Court also ordered that a copy of this order be sent to the National Human Rights Commission (NHRC).The concerned DCP was directed to clarify the points which has been specifically asked from him related to the case. "In case of failure in filing the same by next date of hearing by worthy DCP, the court shall be compelled to take appropriate course of action," the Court warned..Before concluding, the Court also noted that the father of the applicant has been kept uninformed by police officials for almost 10 days since the date of the alleged encounter. It, therefore, directed that he be supplied with a copy of the FIR on the basis of which the applicant was arrested and other documents, in terms of guidelines passed in the DK Basu case..The matter was listed for further hearing on January 7, 2022..[Read Order]