Who Decides Guilt: The Court or the Bullet?

A Question We Don't Like to Ask

Here’s a question that makes most people uncomfortable: if the police shoot a man dead before any court has heard his side, who exactly decided he was guilty?

We’ve all grown up watching news anchors call it an “encounter” almost like it’s a good word — a clean word, a word that sounds like justice finally happened. A criminal was caught, shots were fired, and the criminal is now dead. End of story, right?

Except it isn’t the end of the story. Because somewhere in that one-line headline, an entire trial got skipped. A confession got skipped. A defence lawyer got skipped. A judge got skipped. And the only people who know what really happened in those few seconds are the police officers who pulled the trigger — and the man who can no longer speak.

To be fair, not every encounter is fake. Sometimes the police really are fired upon first, and they really do fire back to save their own lives or the lives of people around them. Nobody is saying the police should stand still and get shot. But “genuine encounter” and “encounter” have quietly started meaning the same thing in public conversation, and that is the problem this piece wants to talk about — because the moment we stop asking questions just because the person killed was “probably guilty anyway,” we have already given up something we cannot easily get back.

What the Constitution Actually Says About This

This is the part that usually gets skipped in news debates, but it’s actually the most important part — because this is where law, not emotion, decides who is right.

Article 21 of the Constitution says no person shall be deprived of life or personal liberty except according to procedure established by law. That one line is doing a lot of work. It does not say “except if the police are sure he’s a criminal.” It does not say “except in serious cases.” It says the only way the State can take away someone’s life is by following a proper legal procedure — an FIR, an investigation, a trial, a chance to defend yourself, and a judge’s decision. A bullet fired on a hunch is not “procedure established by law,” no matter how dangerous the person was rumoured to be.

Article 14 backs this up by promising equality before the law. A “dreaded criminal” and an ordinary citizen are both entitled to the same legal process. The label “criminal” doesn’t apply until a court says so — until then, in the eyes of the Constitution, everyone is just a person accused of something, with a right to prove their innocence.

Article 22 adds a more practical layer — a person who is arrested must be told why, and must be allowed to consult a lawyer. An encounter, by its very design, removes all of this. There is no arrest memo, no lawyer, no chance to explain. The “trial,” if you can even call it that, happens in a few seconds, conducted entirely by the side that benefits from a guilty verdict.

Then comes the law that actually governs how much force police can use. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (which replaced the old CrPC), police can use force while making an arrest — but only as much as is necessary, and only if the person is resisting or trying to escape. The right of self-defence under the Bharatiya Nyaya Sanhita works the same way: force is allowed only to push back an immediate threat, not as payback once the threat is already over. In simple words — the law gives the police a tool to protect life, not a license to take it. The moment that tool is used after the danger has already passed, it stops being self-defence and starts being something the Constitution has a name for: an extrajudicial killing.

There's a specific section that spells this out even further. Section 43(2) of the BNSS says police may use "all means necessary" to make an arrest — but only if the person is forcibly resisting or trying to escape. The moment that resistance stops, this power stops too, because Section 46 of the BNSS (carried over from the old "no unnecessary restraint" rule) makes it clear that a person cannot be subjected to more force than is actually needed to keep them in custody. And there's an even stricter line drawn for lethal force — the law has never given police the right to cause someone's death unless that person is accused of an offence punishable with death or life imprisonment, and even then, only as a last resort to prevent escape, not as a default response. So if someone surrenders — drops their weapon, raises their hands, stops resisting — the legal justification for using force, let alone fatal force, ends right there. An "encounter" that continues after a surrender isn't really self-defence anymore; it's a choice the law never gave the police the right to make.

So legally speaking, the entire debate around “encounters” comes down to one test: was force used to save a life in that moment, or was it used to deliver a punishment that only a court is allowed to deliver? Public anger and political statements don’t answer that question. Only an independent investigation can.

The Same Story, Told Again and Again

If this issue feels familiar, that’s because it is. India has been here before, more than once.

In 2005, Sohrabuddin Sheikh, allegedly linked to organised crime, was killed by Gujarat police in what they called an encounter. The CBI later said it wasn’t one — that it was carefully planned, and that the only witness to what really happened, Sheikh’s wife Kausar Bi, was killed too, so she could never tell anyone otherwise.

In 2004, four people, including a young woman named Ishrat Jahan, were shot dead by Gujarat police, who claimed they were terrorists on their way to kill the Chief Minister. Years of inquiries later, that version of events struggled to hold up, and serious doubts remained about whether it was a genuine encounter at all.

And in Manipur, over a span of years, security forces were accused of staging more than 1,500 fake encounters. When the matter reached the Supreme Court in the Extra Judicial Execution Victim Families Association case, the Court made it clear that even in a “disturbed area” under special laws like AFSPA, simply saying “we acted in self-defence” cannot automatically excuse a killing. It still has to be proved.

Look closely at all three cases. Different states. Different decades. Different political parties in power. Different “categories” of victim — a gangster, a young woman, ordinary villagers. And yet the question asked by courts, commissions and families in every single one of them was identical: did this really happen the way the police say it did, or did the police simply decide the outcome themselves?

Bilauti, Bihar, 2026: The Same Question, One More Time

That same question landed in Bhojpur district, Bihar, in June 2026 — this time involving a 28-year-old named Bharat Bhushan Tiwari.

Tiwari wasn’t a hardened criminal in the way the word usually gets used. By most accounts, he was a local social activist — someone who raised his voice for flood victims and for poorer families in his village of Bilauti who felt nobody in the administration was listening to them. On 17 June, police received information that he was firing a pistol in public. A team, along with STF personnel, reached the spot. According to the police, Tiwari refused to surrender and kept firing, so they fired back in self-defence. He was hit, taken to hospital, and died there. A pistol, cartridges and empty shells were recovered from the scene, the police said.

His family and a growing number of protestors across Bihar told a different story. They alleged the encounter was staged — and a video that began circulating on social media appeared to show Tiwari throwing away his weapon just before he was shot, which, if true, would completely undercut the “he kept firing at us” version of events.

What happened next is, in some ways, the most telling part of this case. Within two days, four police personnel — including the Station House Officer — were suspended. Political leaders across party lines, including some from the ruling alliance itself, demanded answers instead of defending the police automatically. Under mounting public pressure, the Bihar government ordered an independent judicial inquiry, to be conducted by a retired Patna High Court judge.

Notice what this tells us. If the police version was clearly true and complete, there would be little need for suspensions or an outside judicial probe within 48 hours. The speed of that response suggests that even the State itself wasn’t fully convinced its own officers’ story would survive scrutiny — and that is exactly why an independent inquiry, not a press statement, is the only thing that can settle what actually happened in Bilauti. The investigation is still going on. But just like Sohrabuddin Sheikh, Ishrat Jahan, Hyderabad, and Manipur before it, the Tiwari case has reopened the same wound — and reminded everyone watching that an encounter without scrutiny is just a claim, not a fact.

Why This Should Bother All of Us?

It’s easy to tell yourself this isn’t your problem because you’re not a criminal and the police have no reason to come after you. But that’s exactly the kind of thinking that lets this issue keep slipping through the cracks.

If a fake encounter can happen to someone, it means the basic promise of Article 21 — that the State cannot take your life without following the law — isn’t actually guaranteed for everyone, only for the lucky and the well-connected. Once people start believing the police can simply decide who deserves to die without consequence, they also start losing trust in the police generally, even in the officers who are doing their jobs honestly and well. That trust, once broken, takes years to rebuild.

There’s also a far more frightening possibility hiding underneath all this: what if the person killed was actually innocent? An encounter offers no trial, no lawyer, no second chance to prove a mistaken identity or a false case built by someone with a personal grudge. Once the bullet is fired, there is no appeal. And every time society applauds an encounter instead of asking questions, it weakens the very idea that courts — not police stations — are supposed to decide guilt. That’s the difference between living under the rule of law and slowly drifting toward the rule of force, where the loudest gun wins instead of the strongest argument.

What the Supreme Court Has Already Told the Police to Do

The good news, if there is any, is that the Supreme Court has already built a fairly detailed rulebook for exactly this problem — the police just don’t always follow it.

In PUCL v. State of Maharashtra (2014), the Court was looking at 99 alleged encounters by Mumbai police between 1995 and 1997, in which 135 people were killed. Instead of just commenting on those cases, the Court laid down sixteen guidelines meant to apply to every encounter death in the country, going forward. Some of the most important ones: any tip-off about a suspect must be written down before police act on it; an FIR must be registered immediately if a police shooting results in death, and sent to the court without delay; the investigation must be handled by an independent team or a different police station — not by the same officers who were involved in the shooting; and a magisterial inquiry must be held into every such death.

The guidelines also require that the National or State Human Rights Commission be informed promptly, that post-mortems be video-recorded, and — this part is often forgotten — that officers involved in an encounter should not be given out-of-turn promotions or gallantry awards until the inquiry is complete. The Court was clear that this isn’t a polite suggestion. Under Article 141 of the Constitution, these guidelines carry the same binding force as law. Ignoring them isn’t just bad practice — it’s a violation of a Supreme Court order.

So What Actually Needs to Change?

If the rulebook already exists, the real gap isn’t the law — it’s whether anyone is forced to follow it. A few changes could close that gap considerably.

Investigations into encounter deaths need to go to a genuinely independent agency right from day one, instead of being handled — even briefly — by the same police force whose officers were present at the shooting. Body cameras for any team going on an armed operation would turn a disputed “he fired first” claim into something that can actually be checked, instead of just believed or disbelieved. Police training needs to spend more time on de-escalation and far less on glorifying the “encounter specialist” image that some officers have built careers on. Magisterial inquiries need firm deadlines, because an inquiry that drags on for years quietly turns into no inquiry at all. And officers found responsible for a fake encounter need to actually face prosecution — not a transfer, not early retirement, not a quiet promotion a few years later once public attention has moved elsewhere.

None of this is about being “soft on crime.” Dangerous criminals should absolutely be stopped, including through force when there’s a genuine, immediate threat to life. This is about making sure that force is used to stop a threat in that moment — not as a shortcut to avoid the slower, harder work of investigation and trial.

The Final Words

Strip away all the case names, the article numbers, and the guidelines, and the point of this entire piece is fairly simple: the police are there to enforce the law, not to replace it.

From Sohrabuddin Sheikh to Ishrat Jahan, from Manipur's hundreds of disputed encounters to Bharat Tiwari in a small village called Bilauti, the names and the years keep changing, but the question never does — can the State take away a life without proving, in front of a court, that it had to? Until every encounter is treated with the same scrutiny regardless of who was killed or how unpopular they were, the line between justice and a shortcut will keep getting blurrier. And a country that lets that line blur too often eventually finds that it isn’t really being protected by the rule of law anymore — only by whoever happens to be holding the gun.