Gujarat HC dismisses family’s plea seeking registration of FIR over ‘custodial death’

The 30-page judgment, made available on Friday, noted that “the moment there is an allegation against the police authorities which is brought before the police authorities, instead of registering an FIR which would lend credence to the version of the informant, the police authorities would simply investigate whatever else and in whatever manner it would choose, to stifle the inconvenient truth.”

The court further weighed the legal position and noted, “I would have ordinarily thought that the most natural and effective remedy would have been a writ petition to implement the directions of Lalita Kumari…” Delving into whether “custodial death” could be “carved out as a special exception” to the statutory process to “redress a situation where Lalita Kumari (Supra) is not followed in letter and spirit”, the court accepted that while the Commissioner of Police “may be biased and partisan” in such cases, the presumption cannot be extended to the Magistrate.

The court held, “I cannot automatically include the Magistrate to whom an appeal from the decision of the Commissioner of Police would lie, in the same bracket.”

Dismissing the petition, Justice Ray stated in the judgment, “It is ironic that even if a Supreme Court mandate is violated by the authorities, various Benches of the Supreme Court, relying upon Sakiri Vasu (Supra), a decision of a smaller Bench prior to the Constitution Bench decision in Lalita Kumari (Supra), have said that the procedure laid down in the CrPC/BNSS has to be followed and the writ court should not be approached prior to that, solely because an alternative remedy exists in the statute.”

The court had delved in detail into the 2013 precedent of Lalita Kumari as well as the earlier decision of the SC in Sakiri Vasu and the court applied the recent May 4 Supreme Court decision in the case of Sujal Vishwas Attavar vs State of Maharashtra, which reaffirmed that the extraordinary jurisdiction under Article 226 “ought not to have been invoked when alternative equally efficacious statutory remedies were available” and that “Article 226 is not a panacea for all grievances.”

In a further order after pronouncement, the ACP M Division, Ahmedabad, A B Valan, who was present in the court, confirmed on the record that CCTV footage from Vejalpur Police Station for the relevant period had already been seized by panchnama, all medical records had been collected, and call detail records of the deceased and three alleged police officers would be obtained from mobile operators within a week.

Appearing for the petitioner, Advocate Rohin Bhatt argued that the allegations disclosed cognizable offences, making FIR registration mandatory under the SC’s Constitution Bench ruling in Lalita Kumari case. He had further submitted that “substantial pressure” had allegedly been exerted on the family to settle the matter, and that “local police investigating their own colleagues could never ensure a fair probe”.

For the State, Public Prosecutor Hardik Dave had opposed the petition, contending that the complaint with senior authorities of Ahmedabad police was lodged only on May 22 by the petitioner, after the petition was moved before the HC. Dave had contended that the act demonstrated a “predetermined intention” to bypass statutory remedies. The state relied on a consistent line of SC decisions including the recent May 4 judgment – – all holding that aggrieved persons must exhaust the BNSS framework, approaching the superior police officers under Section 173(4) and thereafter the Magistrate under Section 175(3), before invoking writ jurisdiction.

Zahiruddin was arrested on May 18, after the Vejalpur Police claimed to have recovered 520 kg of suspicious meat and a live white calf during a raid conducted on May 5. Police had arrested nine persons in the case and alleged that the 70-year-old was the kingpin of the illegal cow slaughter operation. According to the petitioner, while in custody that evening, his father was allegedly subjected to physical assault and administered unidentified substances. The next morning, he was taken to Sola Civil Hospital, referred to Asarwa Civil Hospital due to non-availability of ICU beds and eventually admitted to SVP Hospital, where he collapsed and was declared dead on May 19. An accidental death case was registered the same evening. A panel of five doctors from B J Medical College conducted a postmortem on May 20. The family thereafter, refused to accept Shaikh’s body until the FIR was registered.