Deconstructing Section 46(3) of the CrPC: A Tacit Approval for Encounters

By Keshab Roy Choudhury



The concept of justice is an ever-elusive one. What exactly does one mean when they say they want justice? In the Indian context, the concept of ‘instant justice’ has entered the discourse again post the rape and murder of a 26-year-old doctor in Hyderabad last year. This ‘instant justice’, in nearly all cases, involves the extrajudicial killings (also referred to as ‘encounters’) of persons accused of various offences by the police or other armed forces without allowing the courts of law to conclusively establish their guilt or innocence. The concepts of instant justice and police violence are not novel and have been portrayed in several Bollywood films over the years, which have been immensely popular. Why do we as a society decry public vigilantism, but look the other way when the State is involved?

There are varying justifications for condoning encounters, ranging from the importance of a deterrent effect that encounters have to the burdensome mechanism of due process. Jyoti Belur notes that the police’s own attitudes towards the due process are that it poses obstacles to be tackled in the ultimate quest in maintaining law and order. In addition, societal approval and adulation provide a heady stimulant for police officers to engage in such encounters. Thus, it should come as no surprise should the number of encounters in a state actually increase, given that many people have publicly showered affection on police officers involved in encounters, be them ‘genuine’ or ‘fake’.

In determining the authenticity of an encounter, the State asserts that such encounters were spontaneous and unplanned. The State does so by arguing two grounds; 1) that the concerned armed forces or police officers killed the accused in self-defence or; 2) that they were allowed to do so procedurally (relying on provisions of procedural law, such as the CrPC, AFSPA 1958 etc). In this piece, I shall focus on Section (‘S’).46(3) of the CrPC and argue that it is unconstitutional taking a literal interpretation of the statute.

S.46 of the CrPC details the manner in which an arrest is to be made. S.46(2) of the CrPC states that if the person being arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the person empowered to arrest may use necessary means to effect the arrest. Whether the means were necessary depends on whether a reasonable man, having no intention to cause serious injury to the other, would employ the same means. S.46(3) of the CrPC states thus: ‘Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.’

Reading and interpreting the sections together, it would mean that one may cause the death in case the person is merely accused of an offence that is punishable with death or life imprisonment while attempting to effect arrest using necessary means. This interpretation has been considered in cases such as Harendra Kumar Deka v State of Assam as well as Extra Judicial Execution Victim Families Association v Union of India (‘EEVFA’).

Constitutional Validity

A.14 of the Constitution of India states: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ In State of West Bengal v Anwar Ali Sarkar, it was held that A.14 applies to substantive and procedural laws. The phrase ‘equal protection of laws’ has been interpreted to equality of treatment in equal circumstances. Thus, equals must be treated alike, and it does not mean unequal ought to be treated equally. The legislature is permitted to pass legislation that applies to specific persons in order to achieve certain ends. One of the tests legislation must pass is that of reasonable classification, which was relied on in Anwar Ali. It, thence, must fulfil two criteria; 1) it must be based on an intelligible differentia, with some real and substantial distinction which distinguishes persons or things together in the class from others left out of it. It should not be arbitrary, artificial or evasive and; 2) the differentia must bear a reasonable nexus with the object sought to be achieved by the statute. Further in Nagpore Investment Trust v Vithal Rao and Subramanian Swamy v CBI, it was held that the object itself must be non-discriminatory.

It must be remembered that the CrPC is applicable to all persons accused of offences under the Indian Penal Code (‘IPC’) 1860. Such people form a class. However, reading S.46(2) and 46(3) together, within the broader class of those accused of offences under the IPC, there are two categories of accused contemplated. Those who are accused of offences that are punishable with death or life imprisonment and those who are not. For the latter, the arresting authority cannot use means that involve causing death to effect arrest, while for the former, the arresting authority is allowed to do so. However, there is no real or substantial distinction between the two categories of accused that warrants the arresting authority to cause death for only one category of persons.

In Subramanian Swamy v CBI, while holding S.6(A) of the Delhi Special Police Establishment Act 1946 to be violative of A.14, it was observed that every public servant against whom there is reasonable suspicion of commission of a crime or there are allegations of an offence under the Prevention of Corruption Act, 1988 had to be treated equally and similarly under the law. Any distinction made between them on the basis of their status or position in service for the purposes of inquiry or investigation was nothing but an artificial one and offending Article 14. Similarly, the mere fact that an offence attracts greater punishment cannot be the basis on which one group is subject to a harsher procedure (in this case, death) by the same law. They are all, ultimately, accused of a particular offence and are innocent until proven guilty in a court of law. Thus, the classification is not based on any intelligible differentia and is arbitrary.

Even if such classification is held to be valid, it does not have any rational nexus with the object of the CrPC. If one of the objects of the CrPC is that an accused person must have a fair trial in accordance with the principles of natural justice, one fails to see how allowing the arresting authority the power to cause the death of some accused and not others has any connection with the object. In fact, it is entirely contrary to the object of the CrPC. In Subramanian Swamy v Raju, it was observed that there may be differences amongst the members included within a particular class. So long as the broad features of the categorization are identifiable and distinguishable and the categorization made is reasonably connected with the object targeted, Article 14 will not forbid such a course of action. However, in this case, neither are the broad features distinguishable and neither does the classification have any nexus with the object of the statute.

A.21 of the Constitution states thus: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In Maneka Gandhi v Union of India it was held that the procedure to be established by law had to be fair, just and reasonable and could not be unfair or arbitrary. Further, in Kartar Singh v State of Punjab, it was held that in order for a procedure to be fair, just and reasonable, it had to conform to the principles of natural justice. One of the core principles of natural justice is audi alteram partem, or to hear the other side. It further includes two facets: 1) notice of the charge against the said person and; 2) an opportunity to explain the said charge.

In Nirmal Singh Kahlon v State of Punjab, it was held that A.21 contemplates the right of an accused to have a fair trial, through a fair procedure and fair investigation. However, by allowing the arresting authority to cause the death of a person accused of a particular offence renders their rights under A.21 a dead letter as they are denied an opportunity to be heard by an independent adjudicatory authority. Presumption of innocence is an important concept in criminal law, however, that is defeated if such a power is given to an arresting authority.

The Court’s Approach to the Police and Accused

In PUCL v Union of India, it was observed that it was for the police to deal with the alleged terrorists as per the procedure established by law when they were in receipt of the information on their location and ‘administrative liquidation’ could not be resorted to. In Om Prakash v State of Jharkhand and Rohtash Kumar v State of Haryana, it was 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 and must make all effort to arrest them. 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. A provision allowing an arresting authority the power to cause the death of an accused without affording them an opportunity to be heard cannot be countenanced as fair, just or reasonable.

It has been acknowledged and noted by the Courts that the police or other armed forces may legitimately cause the death of a person in the exercise of their right to private defence. However, in Challa Ramkonda Reddy v State of Andhra Pradesh, it was held that where a citizen was deprived of his life or liberty except in accordance with the procedure established by law, it could not be a defence to say that officials of the State were discharging sovereign functions of the State, and the concept of sovereign immunity could not be read as an exception to A.21. Therefore, it is rather strange for the police to rely on S.46(3) of the CrPC to justify extrajudicial killings, for they cannot plead that causing the death of an accused in the absence of provocation is a sovereign state function.

In EEVFA, it was observed that even if a person was classified as an ‘enemy’ under the Army Act 1950, the rule of law would apply and the armed forces or police officials could not resort to killing the enemy as the only possible solution. It was held that retaliatory force and private defence were distinct and the former could not be exercised by the armed forces or the police. It was further held that in order to prosecute police officials, there has to be a reasonable connection between the act committed and their official duty, and it would have to be shown that the act was indefensible, mala fide and vindictive. It could easily be argued that S.46(3) of the CrPC permits the killing of a person accused of an offence punishable with death or life imprisonment and this is part of their official duty when the said accused attempts to avoid arrest. Thus, it would lead to complete police impunity, despite having guidelines for encounter killings set out in PUCL v State of Maharashtra.

The foregoing discussion is to show that the Court does not tolerate the killing of an accused unless it is in the exercise of self-defence. S.96 to 106 of the IPC deal with the right to private defence. In the cases wherein this right may extend to causing death, there should have necessarily been a reasonable apprehension of danger to the body or property and it must necessarily satisfy one of the conditions in S.100 of the IPC. For S.46(3), for death to be caused it must simply be shown that; 1) the accused attempted to evade or forcibly resist arrest and; 2) the person was accused of an offence which was punishable with life imprisonment or death. It must be observed that; 1) the bar is set rather low in the latter case and; 2) one situation involves a legitimate exercise of self-defence while the other can be used vindictively and masked as a procedural defence. It would be very easy to justify the extrajudicial killings of persons accused of an offence, say sedition, by simply showing that they were attempting to evade arrest. This is rather absurd and completely antithetical to the rule of law.


From the aforementioned analysis, it can be concluded that S.46(3) vests excessive powers in the police to deal with persons accused of offences punishable with life imprisonment or death. This power is incredibly dangerous as not only is it given legal sanction, it also has to contend with political pressure, several police biases and a society that bays for blood in response to a heinous offence. In Anita Khushwaha v Pushap Sudan access to justice was declared a fundamental right under A.14 and 21 of the Constitution. However, if S.46(3) is to be interpreted literally, the State would end up denying access to justice for many accused persons, leaving, more often than not, justice to be determined by the barrel of a gun. Therefore, it would be appropriate for the Parliament to amend this particular section, or for the Court to read down S.46(3) to mean that under the garb of the procedure, the death of an accused cannot be caused.

[The author is a second-year student studying at Jindal Global Law School.]



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