Police can't use lethal force for all criminals: Gauhati High Court

* Senior advocate Bhaskar Dev Konwar explains the laws as to whether police can shoot accused persons if they try to flee

STAFF REPORTER

GUWAHATI: Of late, Assam has been witnessing frequent incidents where the police shoot at the accused criminals allegedly when they try to flee. This development has created concern among conscientious citizens that it may lead to the abuse of powers by the police.

Speaking to The Sentinel, senior advocate of the Gauhati High Court, Bhaskar Dev Konwar said that the police could use such lethal force only in a particular case where an accused — facing charges punishable with death or life imprisonment — tries to escape.

"Section 46 of the CrPC (Criminal Procedure Code) authorizes a police officer to use "all means necessary" to effect an arrest when either the person forcibly resists arrest or attempts to evade arrest. If the person is accused of an offence punishable with death or life imprisonment, the police officer may use lethal force," pointed out Konwar.

The police are trained to apprehend an accused, and if necessary, to handcuff him to prevent his escape. If an accused succeeds in fleeing or snatches firearm(s) from the police, the police officer concerned is also liable for the negligence of duty, added Konwar.

"One of the ways to check such incidents is to take into account the bullets fired in an encounter, and the rounds fired by each policeman. Empty fired cartridges, if possible, must be collected and body cams must be used by the policemen for arresting and escorting the accused. While escorting the accused, sufficient care must be taken to prevent his escape and to ensure that the accused cannot snatch any firearm(s) from the accompanying policemen," said the senior advocate said.

Konwar further stated that in the case of custodial torture or fake encounter, criminal proceedings and disciplinary action can be initiated against the erring police personnel. He also said that in a country governed by the rule of law there is no scope for administrative liquidation of persons accused of committing a criminal offence.

"The legal system in India is established on the premise that an accused is presumed to be innocent until proved guilty following law. And an unlawful arrest of an individual can be a violation of Article 21 of the Constitution which states that no person shall be deprived of his life or personal liberty except according to procedure established by law which means that the process must be fair, clear and not arbitrary and not oppressive. All offences are against the State; and, it is the burden of the State to prove the commission of a crime by an accused beyond a reasonable doubt," added Konwar.

Asserting that life and liberty are sacred freedom guaranteed under the Constitution of India, Konwar also said that there is a great responsibility upon the police to ensure that an accused in his custody is not deprived of his right to life.

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