ARGUMENTS ADVANCED

ISSUE 1- THE ACTS AND OMMISSIONS OF POLICE OF UNKAR PRADESH

RESULTED IN VIOLATION OF ARTICLE 21 OF CONSTITUTION OF INDICA IN AS
MUCH AS VIVEK DAS WAS KILLED AND HIS LIFE WAS TAKEN AWAY
WITHOUT THE DUE PROCEDURE ESTABLISHED BY LAW.

1. It is humbly submitted before this Hon’ble Court that the acts and omissions of police
officials of the State of Unkar Pradesh has led to violation of Art. 21. The sole reason behind
this is that the extra judicial killing of Vivek Das has happened in contravention with the
procedure established by law which is a basic facet of Art. 21 as enshrined within the
Constitution itself.
2. That so far as this issue is concerned, the said provision of the Constitution is produced in
verbatim below:
“Art. 21: No person shall be deprived of his life or personal liberty except according to
procedure established by law.”1
3. That the actions of the police officer amount to violation of the Rights to Life and
Personal Liberty because [1.1] there is violation of Right to free and fair trial and [1.2] the acts
and omissions of police officials is not in accordance with the procedure established by law
and
[1.1] VIOLATION OF RIGHT TO FREE AND FAIR TRIAL

4. The Petitioners humbly submit that the Right to free and fair trial is an integral part of
Art. 21, albeit it is not expressly embodied in the Constitution of India. The Maneka Gandhi
Case2 has broadly expanded the ambit of Art. 21 in relation to the rights of the accused to
include the rights pertaining to fair trial, speedy trial and dignified treatment. The Apex Court
in the case of Nirmal Singh Kahlon v. State of Punjab also held that “Fair investigation and fair
trial are concomitant to preservation of fundamental right of the accused under Art. 21 of the
Constitution of India.3 This right to fair trial is inclusive of the right of being considered as
innocent until proven guilty.4
1
INDIA CONST. art. 21.
2
Maneka Gandhi v. UOI, (1978) 2 S.C.R. 62.
3
Nirmal Singh Kahlon v. State of Punjab, (2009) 1 S.C.C. 441.
4
State of U.P. v. Naresh&Ors., (2001) 4 S.C.C. 324.
5. Furthermore, the International Covenant on Civil and Political Rights, 1966 also affirms
that the right to fair trial is an important fundamental human right5 and provides for certain
basic rules of fair trial rights, 6 which are also found under Art. 10 of the Universal Declaration
of Human Rights, which holds a persuasive value in the present case. However, it is very
pertinent to note that the Hon’ble Supreme Court in the case of Kalyani Baskar v. Mrs.
Sampoornam has reiterated that “Fair trial” includes fair and proper opportunities allowed by
law to prove the person’s innocence. 7 It is judiciously acknowledged that fair trial includes fair
investigation. The role of the police is to be one for protection of life, liberty and property of
citizens, that investigation of offences being one of the foremost duties. 8
6. Free and fair trial has been said to be the sine qua non of Art. 21 as is pointed put by the
Apex Court in the case of ZahiraHabibullah Sheikh v. State of Gujarat.9 It is also to be noted
that the State has a duty to enforce the human rights of a citizen providing for fair and impartial
investigation against any person accused of commission of cognizable offence. 10 The alleged
accused is entitled to fairness and true investigation 11 so as to ensure that the innocent person is
not wrongly convicted for any offence due to unfair and impractical procedures. Also, it has
been established that the right to speedy trial is implicit in the right to a fair trial and is an
implied ingredient of fair trial.12
7. In the instant case Vivek Das has not been given an opportunity to fair, free and speedy
trial as discussed above, as the opportunity has not been given to him to present his case before
an appropriate Court of law to prove his innocence. It is an agreeable notion that the police
have the right to private defense as enshrined under both IPC and Cr. P.C., by all means
possible. But, the veracity of these claims are definitely questionable and therefore have to be
proved beyond reasonable doubt which in the instant case is clearly absent, thus bringing back
into focus the extrajudicial and extra-constitutional means that are sometimes employed by the

5
Jixi Zhang, Fair Trial Rights in ICCPR, Vol. 2 JOURNAL OF POLITICS AND LAW, 1(2009).
6
Article 14, ICCPR, 1966.
7
Kalyani Baskar v. Mrs.Sampoornam, (2007) 2 S.C.C. 258.
8
Ankush Maruti Shinde & Ors.v. State of Mahrashtra, (2019) 15 S.C.C. 470.
9
ZahiraHabibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367.
10
State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571: (2010) 2 SCC (Cri) 401.
11
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1: (2010) 2 SCC (Cri) 1385; V.K. Sasikala v. State, (2012) 9
SCC 771: (2013) 1 SCC (Cri) 1010.
12
Maharashtra v. ChampalalPunjaji Shah, (1981) 3 SCC 610: 1981 SCC (Cri) 762; T.V.Vatheeswaran v. State of
T.N., (1983) 2 SCC 68: 1983 SCC (Cri) 342; Abdul RehmanAntulay v. R.S.Nayak, (1992) 1 SCC 225: 1992 SCC
(Cri) 93; HussainaraKhatoon v. State of Bihar, (1980) 1 SCC J-35.
 state while dealing with criminals. Therefore the officials have failed in their duty to uphold
the facets of Art. 21 and hence liable.
[1.2] THE ACTS AND OMISSIONS OF POLICE OFFICIALS IS NOT IN ACCORDANCE WITH
THE PROCEDURE ESTABLISHED BY LAW
8. The petitioner further contends that the “procedure established by law” that has been
envisaged in Art. 21 have been given broad interpretations in catena of cases.13 The Apex
Court has opined that it is essentially the procedure that is prescribed by law and enacted by the
state. Moreover, fairness in administration of justice is envisaged inter alia in Art. 21 of the
Constitution, which mandates that the trial of a citizen needs to be in accordance with the
procedure established by law and it should be reasonable, just and fair and it should in no
manner be fanciful, oppressive and arbitrary.14
9. It is needless to say that even arrest and detention has to be according to a valid
procedure established by law as emphasized in the case of Additional Secretary to the Govt. of
India &Ors.v. Smt. Alka Subhash Gadia& Anr. 15 The doctrine does not just make an
examination as to whether or not the procedure is reasonable or just, but it also provides that its
operation should also be just and fair, so as to comply with the norms of Art. 21. Furthermore,
the arrest that results in violation of the statutory provisions of law that regulate arrests
amounts to illegal arrests because it is not as per the procedure established by law and thus
leads to infringement of Art. 21.16
10. Moreover, cases of extra judicial killings or encounter are done without any judicial
authorization. The complexity of the questions as pertinent in the instant case as well also
brings several harm to the basic facets of rule of law as public tends to lose faith in the
institution of natural justice. It has been held by the apex court in the year 1978 that any state
action which is against principles of natural justice is violative of Article 21.17
11. In the case of E. P. Royappa, the Supreme Court had categorically held that arbitrary acts
of the State are in stark contravention of Article 14. When the police force arbitrarily resorts to

13
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684; Mithu v. State of Punjab, (1983) 2 S.C.C. 278.
14
Maneka Gandhi v. UOI, A.I.R. 1978 S.C. 597; Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C.
180.
15
Additional Secretary to the Govt. of Indi &Ors.v. Smt. AlkaSubhashGadia&Anr., 1992 Supp (1) S.C.C. 496: 1992
S.C.C. (Cri) 301.
16
State of Punjab v. Balbir Singh, (1994) 3 S.C.C. 299: 1994 S.C.C. (Cri) 634.
17
Maneka Gandhi v. UOI, A.I.R. 1978 S.C. 597.
 encounters without any fair justification, it denies the accused the protection of law that he is
entitled to under Article 14.18
12. In the instant case, it is pertinent to note that procedure established by law means that a
fair criminal trial, judgment based on evidence, an opportunity to the accused be heard, appeal
provisions to rectify the trial court’s verdict, etc. are necessary before a person is punished.
Fake or staged encounters empower the police to play the role of a judge and executioner and
leads to a direct violation of Article 21 as the procedure established by law is not followed in
such a case.
13. The Supreme Court in Public Union for Civil Liberties v. Union of India,19 while
discussing extra-judicial killings has held that not even State can violate the right to life and
obligation to follow the procedure established by law under Article 21 of the Indian
Constitution. 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.”
14. In the case of Siddharam Satingappa,20 the Apex Court has very vividly laid down that an
irrational and indiscriminate arrest is gross violation of human rights and Article 21 of the
Constitution. As per Dicey, “The right to personal liberty means in substance a person’s right
not to be subjected to imprisonment, arrest or other physical coercion in any manner that does
not admit of legal justification” which has been reiterated in certain cases.21
15. Moreover, it is respectfully submitted that the accused were stripped of, of their
fundamental rights which accrues to them by virtue of being an accused. Following rights are
bestowed to accused under the Constitution of India and Cr.PC-

1) Information to the arrestee- Section 50 of Cr.PC.22

2) Production before Magistrate- Section 56-57 Cr.PC.23

3) Consultation with lawyer- Section 303 Cr.PC.24

18
E.P. Royappa v. State of Tamil Nadu, 1974 A.I.R. 555.
19
PUCL v. Union of India, (1997) 3 S.C.C. 433.
20
SiddharamSatingappaMhetre v. State of Maharashtra &Ors. Cr. Appeal No. 2271 of 2010.
21
ADM Jabalpur v. S.S. Shukla, 1976 A.I.R. 1207: 1976 S.C.R. 172.
22
Govind Prasad v. State, 1975 CrLJ 1249 (Cal); Vimal Kumar Sharma v. State, 1995 CrLJ 2335 (All).
23
Manoj v. State of M.P (1999) 3 S.C.C. 715; Khatri (II) v. State of Bihar, 1981 CrLJ 470 (SC); I.G of Police v.
Prem Sagar (1991) 5 S.C.C. 700,; Saptawna v. State of Assam, A.I.R. 1971 S.C. 813.
24
Francis Coralie v. U.T of Delhi 1981 S.C.R. (2) 516; Joginder Kumar v. State of U.P (1994) 4 S.C.C. 620.
4) Examination by Medical Practitioner- Section 5425.

16. It is humbly submitted that arrest should not only be legal it should be justified but it
should be effected strictly according to the procedure established by law. The various powers
of the police for facilitating the making of arrest are subject to certain restraints. The
imposition of restriction can be considered, to an extent, as the recognition of the rights of the
arrested person. They are however some other provision which have rather more expressly and
directly created important rights in favor of arrested person. The Constitution of India also
recognizes the rights of the accused under the part III.
17. In the instant case, the arbitrary state actions form a valid set of questions as to whether
this was an act of private defense or an act of arbitrary state sponsored actions. The question of
how the car actually toppled, did Vivek actually try to escape or not, and several other
questions are complex and unanswered in the instant case. Moreover, the 16 guidelines in such
cases that are to be followed as laid down in the aforementioned case of PUCL have also not
been complied with. Moreover the guidelines of NHRC have also not been followed, therefore
making the state actions unjust, unfair and unreasonable, thus making it against the procedure
established by law (discussed further in issue 2). Moreover, a blatant omission of
aforementioned sections of Cr. P.C. have proved that the police of Unkar Pradesh has acted in
arbitrary manner and therefore the killing of Vivek Das is not in accordance with th due
procedure established by law.

ISSUE- 2 POLICE OF UNKAR PRADESH WAS UNJUSTIFIED IN KILLING THE

DREADED CRIMINAL WHO HAD BRAZENLY KILLED SCORES OF POLICEMEN
ALONG WITH HIS HENCHMEN AND THE ACTION OF POLICE IS JUSTIFIED IN
TERMS OF SELF-DEFENSE (CHAPTER IV: GENERAL EXCEPTIONS, SECTION
96-106) OF INDICA PENAL CODE. ALSO, WHETHER THE POLICE HAVE
FOLLOWED THE PRINCIPLE AS PROVIDED UNDER CR.P.C I.E. TO PRODUCE
THE ACCUSED BEFORE THE CONCERNED COURT AND VARIOUS OTHER
PROVISIONS OF CR.P.C.
18. As it has been previously discussed as to how a fake encounter shakes the foundation of a
society which is governed by Rule of Law. Now the petitioner would be pleading as to how the
25
Sheela Barse v. State of Maharashtra, 1983 CrLJ 642 (SC).
 defense take by the Police of Unkar Pradesh of its right to private defense is baseless, sham and
bogus. Also it is apt to be mention that none of the provisions of Criminal Procedure Code,
1973 (Hereinafter will be referred as Cr.PC) were followed. In other words the accused were
denuded of their rights which are enshrined in Cr.PC. Obviously from an ex-facie view it might
appear that in order to save one’s life it is peremptory to take another’s life, but the question
needed to be answered is that whether the killing is justified.
19. From the bare perusal of all the section of private defense under IPC, it is abundantly
clear that right to private defense can be exercised to save one’s person (body) and property
from any aggression. While Section 96 provides that nothing is an offence which is done in
exercise of private rights a restriction, which is restricted by section 99 which expounds the
golden principle that right of private defense cannot be used to inflict harm more than what is
required for defense.26 Section 100 and section 103 talks in greater length about the
circumstances in which death can be caused in exercise of private defense27.
20. The abovementioned provisions should be read in conjunction with Exception 2 of
Section 300- Three combination will result-1) If death is caused in exercise of right of private
defense and it falls under circumstances mentioned section 100 or 103, then according to
section 96 it will not be an offence, then be it a private person or a police officer he will be
exonerated. 2) In absence of the circumstances mentioned in section 100 or 103 of IPC, a death
is caused by infliction of an injury which is in excess of the right conferred by section 96 then
if it is done with premeditation and not without the intention of causing excess harm then it
will squarely fall under the ambit of section 300 and will be punished as murder under section
302. 3) In absence of the circumstances mentioned in section 100 or 103 of IPC, a death is
caused by infliction of an injury which is in excess of the right conferred by section 96 then if
it is done without premeditation and without the intention of causing excess harm then it will
fall under exception 2 of section 300 and it will amount to culpable homicide not amounting to
murder punishable under section 304.

26
Kishan v State of Madhya Pradesh A.I.R. 1974 S.C. 244, (1974) Cr LJ 324(SC) ; Sonelal v State of Uttar Pradesh
A.I.R. 1981 SC 1379, (1981) Cr. L.J. 1027(SC) ; State ofj&K v Hazara Singh A.I.R. 1981 S.C. 451, (1980) Cr LJ
1501(SC) ; Kanhaiyalal v State of Rajasthan A.I.R. 1989 S.C. 1515, (1989) Cr LJ 1482(SC), Ram Kumar v State
(1994) Cr. L.J. 1458(SC) .
27
Munshi Ram v Delhi Administration A.I.R. 1968 S.C. 702, (1968) Cr. L.J. 806(SC) ; State of Uttar Pradesh v Ram
Swarup A.I.R. 1974 S.C. 1570; State of Gujarat v Bai Fatima A.I.R. 1975 S.C. 1478.
21. In the instant case, the question before this Hon’ble Court is that whether this is a case of
right to private defense or an arbitrary fake encounter. The legal backing, which clearly lacks
in the instant case, definitely leads to a manifest violation of the tenets of rule of law. And it is
imperative upon the court to decide as to whether the powers have been used in a discretionary
and rather arbitrary manner.
22. In Om Prakash v. State of Jharkhand28, Supreme Court observed- “It is not the duty of
the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly,
the police have to arrest the accused and put them up for trial. This court has repeatedly
admonished trigger happy police personnel, who liquidate criminals and project the incident
as an encounter. Such killings must be deprecated. They are not recognized as legal by our
criminal justice administration system. They amount to State sponsored terrorism. There is a
rise in such incidents and judicial notice must be taken of this fact.”

2.1 POWER TO USE FORCE- SECTION 46(2)-(3) & 49 OF CR. P.C.

23. The person making an arrest may use ‘all means necessary’ to make an arrest if the
person to be arrested resists or attempts evade the arrest (Section 46). The term ‘all means’ are
very wide29. This provision gives an emphasis on the fact whether the act of killing the accused
is desirable or not. Section 49 contemplates that person arrested shall not be subjected to more
restraint than is necessary to prevent his escape. In other words, unnecessary restraint and
physical inconvenience, like tying hands and feet, is not to be resorted to, unless it absolute
necessary to do so30.
2.2 INFRINGEMENT OF RIGHTS IN A FAKE ENCOUNTER
24. It is submitted that it is the abundantly clear from the fact of the case that almost accused
were denied of almost all of the rights mentioned in the statute book. The arrested person
should be promptly produced before a Magistrate. This right has been created to prevent the
arrest from becoming means of compelling the people to give information and to enable the
judicial authority independent of the police to determine the question of bail. Further it is
humbly submitted that section 56 lays down that in case of arrest without warrant, the police
officer is required, without unnecessary delay and subject to provision regarding bail to

28
Om Prakash v. State of Jharkhand, (2012) 12 S.C.C. 72.
29
Nazir v. State of U.P, A.I.R. 1951 All 3 (F.B).
30
Citizens for Democracy v. State of Assam (1995) 3 S.C.C. 743.
 produce the accused before Magistrate having jurisdiction in the case or before the officer-in-
charge of a police station. It may be noted that section 76 provides similarly for in the case of
an arrest with warrant. Section 57 provides that no police officer shall detain in custody a
person arrested without warrant for a longer period than under al, the circumstances of the case
is reasonable and such period shall not (in the absence of special order of Magistrate under
section 167) exceed 24 hrs exclusive of the time necessary for the journey from the place of
arrest to the Magistrate’s court. The right has also been incorporated in the Constitution as one
of the fundamental rights-Art. 22(2).

25. Herein the petitioner would like to highlight the guidelines given by this Hon’ble court in
the case of People's Union for Civil Liberties v. State of Maharashtra 31. They opined-“13. The
revised guidelines/procedures to be followed in cases of deaths caused in police action framed
by NHRC read as under: A) when the police officer in charge of a police station receives
information about death in an encounter with the police, he shall enter that information in the
appropriate/ register. B). Where the police officers belonging to the same police station are
members of the encounter party, whose action resulted in death, it is desirable that such cases
are made over for investigation to some other independent investigation agency, such as State
CBCID.

26. C.) Whenever a specific complaint is made against the police alleging commission of a
criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to
this effect must be registered under appropriate sections of the I.P.C. Such case shall be
investigated by State CBCID or any other specialized investigation agency. D). A magisterial
enquiry must be held in all cases of death which occurs in the course of police action, as
expeditiously as possible, preferably, within three months. The relatives of the deceased, eye
witnesses having information of the circumstances leading to encounter, police station records
etc. must be examined while conducting such enquiry. E). Prompt prosecution and disciplinary
action must be initiated against all delinquent officers found guilty in the magisterial
enquiry/police investigation.

27. F). No out-of-turn promotion or instant gallantry rewards shall be bestowed on the
concerned officers soon after the occurrence. It must be ensured at all costs that such rewards
31
PUCL v. State of Maharashtra, (2014) 10 S.C.C. 635.
 are given/recommended only when the gallantry of the concerned officer is established beyond
doubt. G). (a) All cases of deaths in police action in the states shall be reported to the
Commission by the Senior Superintendent of Police/Superintendent of Police of the District
within 48 hours of such death in the following format:

28. 1)Date and place of occurrence, 2. Police station, district, 3. Circumstances leading to
death : (i) Self-defence in encounter ; (ii) In course of dispersal of unlawful assembly; (iii)
In the course of effecting arrest; (iv) Any other circumstances, 4. Brief facts of the incident,
5. Criminal case No., 6. Investigating agency

29. (b) A second report must be sent in all cases of death in police action in the state by the
Sr. Superintendent of Police/Superintendent of Police to the commission within three months
providing following information:1. Post mortem report; 2. Inquest report; 3. Findings of the
magisterial enquiry/enquiry by senior officers disclosing:(i) Names and designation of police
official, if found responsible for the death:,(ii) Whether use of force was justified and action
taken was lawful, (iii) Result of the forensic examination of 'hand wash' of the deceased to
ascertain the presence of residue of gun powder to justify exercise of right of self defense; and,
(iv) Report of the Ballistic Expert on examination of the weapons alleged to have been used by
the deceased and his companions.

2.3 CONCLUSION AND RELIEF SOUGHT

30. Having understood all the legal provisions, it is humbly submitted that the National
Human Rights Commission has time again sent notices to the state of Unkar Pradesh alluding
free and unabated use of police power for settling scores against individual. This makes one
thing clear that a strong suspicion exists against the state of U.P. NHRC has also laid down two
situations when police can take away somebody's life, which is otherwise protected by the
fundamental right to life and personal liberty as guaranteed by the Constitution: First, if the
death is caused by the right to private defense when the police person or personnel are attacked
by the suspect(s), but it does come with restrictions under the IPC. Second, if the death is
caused by use of force that was necessary to arrest a person accused of an offence punishable
with death or imprisonment for life, which also comes with restrictions mentioned under the
IPC.
31. The story produced by the special police team (SPT) of state of U.P appears to be flimsy
and untenable, It is also clear that Vivek Das was accused of more than 60 offences. It is not
possible for him flout every rules and regulations of the state would not have been possible
without any political support. This can be buttressed by the fact he was tipped by a police
officer and he is alleged to have contacts with some high ranking police official. Hence there
should be an investigation in this matter and it is clear that an act done to silence him.
32. Having discussed the law it is abundantly clear that if the accused is of kind of offender
as Vivek, he could have been handcuffed as he was a dreaded criminal. Also it is clear that
only reasonable force should be used catch such accused. It was a team of SPT and the accused
was an individual, it was easy for an SPT, who are miraculously trained in academies, team to
control such one accused. But it is submitted that it appears from the fact of the case that the
SPT was pre-determined to kill Vivek.
33. Ergo, it cannot be said that the action of killing Vivek was justified and it was
premeditated and conscious and the defense of right of private defense take by the police of
state of U.P appears to be nothing but a red herring. Hence it falls squarely under section 300
of the IPC. It is urged before this Hon’ble court that there should be a court monitored
investigation so as to unearth what has been hidden.