Mumbai: The Bombay High Court on Thursday took a dim view of an order passed by a sessions court in Thane, which kept “in abeyance” the findings made by a magistrate in a report questioning the legitimacy of the encounter of an accused in the Badlapur sexual assault case.
A bench of Justices Revati Mohite-Dere and Neela Gokhale censured the additional sessions judge DR Deshpande saying that the order granting relief to the policemen in the encounter case was “shocking” and that the judge overreached the HC order.
The Free Press Journal was the first to report on February 25 about the sessions court order granting relief to the policemen.
Judicial Magistrate First Class, Ashok Shendge, had submitted a report on January 18, holding five policemen—Senior Police Inspector Sanjay Shinde of the Thane Crime Branch, Assistant Police Inspector Nilesh More, Head Constables Abhijeet More and Harish Tawade, and Police Constable Satish Khatal—accountable for Akshay Shinde’s custodial death.
The policemen, who were escorting Shinde from Taloja Prison to Kalyan for questioning, had claimed that Shinde snatched Assistant Police Inspector Nilesh More’s service pistol, leading to a struggle during which both were injured.
However, the magistrate’s report raised serious doubts about the alleged encounter. The findings stated that the four policemen, despite being in a position to control the situation, failed to do so and that the use of force was “not justified.”
Following applications by the five policemen, the sessions judge, on February 21, kept two crucial paragraphs—81 and 82—in abeyance pending a hearing on the applications.
On Thursday, the High Court was informed about the sessions judge’s order during a hearing on a plea by Shinde’s father, who alleged that his son was killed in a fake encounter and sought action against the policemen concerned.
The judges questioned the sessions court’s decision to entertain the policemen’s plea when the matter was pending before the High Court. “It is overreaching the orders passed by us. The (sessions) judge has overstepped his jurisdiction. When the matter is sub judice before this court, can the sessions judge entertain this revision application?” the bench asked.
The court questioned Public Prosecutor Hiten Venegaonkar on whether the State had informed the sessions judge that the matter was being heard by the High Court. “We don’t know what to say. This is shocking. Did the State not inform the sessions court that the HC is seized of the matter? Is the State planning to challenge the sessions court’s order? Are you (State) not appalled and shocked?” the bench said.
The court appointed senior advocate Manjula Rao as amicus curiae (friend of the court) to assist with the plea after Shinde’s parents expressed that they did not wish to pursue the case.
Rao has been asked to assist the court on several issues, including whether an FIR ought to be registered by the State based on the magistrate’s report. The issue arose after the State argued that the magistrate’s report was only recommendatory.
“The State has said that a commission has already been set up and that the State CID is also carrying out a probe into the custodial death of the accused, so no cognisance needs to be taken of the magistrate’s report,” the judges said. However, they emphasized that once a cognisable offence is disclosed, it is the responsibility of the State to take it to its logical conclusion.
The bench added: “Also, can a commission and CID probe come in the way of registering an FIR based on the magistrate’s inquiry report? We want you (Rao) to argue on this.” The HC has scheduled the matter for a hearing on March 5.
Shinde had been arrested by the Badlapur police for allegedly sexually assaulting minor girls at a local school. While in judicial custody at Taloja Prison, he was taken into police custody on September 23 via a transfer warrant in connection with a second FIR lodged by his wife. However, during transit, he sustained firearm injuries and later succumbed.
