Badlapur custodial death: Parents say don’t want to pursue case further, HC asks state why no FIR yet

The court said it will hear the matter next on Friday, February 7, remarking that it cannot close the plea like this as a lot had happened in the case and questioned why FIR was not yet registered. The state government informed the court that it will continue independent investigation into the custodial death in accordance with law.

The 23-year-old janitor arrested in August last year for the alleged sexual assault of two minor girls at a school in Badlapur in Thane district was shot dead while he was being transported in a police vehicle on September 23 last year. The police had claimed he was killed in retaliation after he snatched an officer’s service weapon and fired three rounds, injuring an officer.

A bench of Justices Revati Mohite-Dere and Neela K Gokhale on February 3 had sought to know what the government intended to do with respect to a magistrate inquiry report which found that five police officers, including a police driver, were responsible for the custodial death of the accused.
In a report submitted before the HC last month, the magistrate, based on Forensic Science Laboratory (FSL) reports, held that “false encounter” allegations made by parents of the deceased “found substance”.

On Thursday, the bench questioned the state government as to why no FIR had been filed against the officers indicted in the magistrate’s report.
Senior advocate Amit Desai, representing the state as its special public prosecutor, argued that an independent probe by state CID was still in progress. He said that the scope of the magistrate’s probe was limited to ascertaining cause of custodial death and not of assigning responsibility.

“Scope of magisterial inquiry under sections 196 and 193 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is only limited to ascertaining cause of death. The magistrate enquiry should not have gone into who is responsible (for death). It has gone into the job in terms of commission of inquiry. One requires powers of probe to look into every aspect of matter, which the magistrate does not possess,” Desai argued.

He added, “As an agency we cannot take this (magistrate’s report) as binding on us and have an independent duty on us to see if offences made out and chargesheet is filed. If the agency is attempting to do it, it should be given time. I am conscious these are matters to be dealt with. However, the Supreme Court in past judgment had said that the agency should have unimpeachable evidence.”

Desai also sought that the additional material collected by the magistrate during the probe, which was not with the police, which can be further sent to the judicial commission set up in October, last year along with the magistrate’s report.

The state government had formed a judicial commission headed by former Chief Justice of Allahabad High Court Dilip Bhosale, to look into the custodial death and “false encounter” charges and if any person was responsible for the same.

The bench then questioned the state that once the Accidental Death Report (ADR) had been filed, was the same not required to be taken to “logical end” and an FIR was needed to be registered.

“Commission of inquiry is a parallel aspect, but as far as ADR is concerned, it has to be taken to a logical end. Further, the court report (magistrate’s) can’t be on paper without action. It’s a full-fledged report with statements… Is the state not duty-bound to register an FIR?” the bench orally questioned.

Desai responded that proper independent investigation was required to be carried out before acting on the ADR. The HC also allowed applications filed by the police officers concerned seeking access to the copy of the magistrate report and directed state lawyers to furnish copies of the report to applicants within a week.