Contrary to popular perception, the umbrella term ‘encounter killing’—used only in reference to police personnel—is a right to personal defence available to everyone, including the police.
The Indian Penal Code, 1860, has the relevant provisions dealing with right to personal defence in Sections 96 to 106.
Section 96 states, “Nothing is an offence which is done in the right of exercise of the right of private defence.” Such a right is extended to defend the human body as well as movable and immovable property.
Section 98 further clarifies that an act that would otherwise be deemed criminal is not considered as such if committed by “reason of youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing the act, or by reason of any misconception on the part of the person”.
The case of public servants is dealt with in Section 99, which states, “There is no right of private defence against an act, which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 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.”
The right to defence is available in all such cases of bodily harm, which reasonably cause the apprehension of death, grievous hurt, rape, gratification of unnatural lust, kidnapping or abduction, wrongful confinement of a person and throwing of acid, which might cause grievous harm.
This right extends right from the time that a threat is perceived to the body of the defendant to as long as that threat continues to persist.
In the case of movable and immovable property, such a right is available in cases of robbery, house breaking by night, mischief by fire committed on any form of property and house trespass.
It is notable that while the law gives expansive right to defence, it does come with the rider that no more harm than necessary should be committed during the exercise of this right. If death is caused, even though the person exercised this right without any premeditated intention of causing it, then it is classified as culpable homicide not amounting to murder.
In the case of police officers, if there is no legal material to support the act undertaken under the right to defence, it becomes a fake encounter, which is to be punished as a murder.
