Bombay High Court rejects pre-arrest bail plea of cop accused in custodial death case

On June 12, a single judge bench of Justice Amit Borkar was hearing the anticipatory bail plea of Md. Khaja Khan, who was booked last year for offences, including abetment of suicide.

According to the prosecution, one Santosh Shinde was apprehended in a crime registered in Telangana. During interrogation, he named two people–Vijay Budhu Birari and Jaliya Alias Santosh Sahane– and accused them of selling stolen gold articles. The Telangana police team reached Nashik for the purpose of investigation.

The team, headed by Rupani Ramulu Vyankatesh, booked rooms in the Government Rest House and took custody of Birari, who was brought to Panchavati police station in Nashik.

Birari was taken to the rest house without being produced before a magistrate, as mandated by the Code of Criminal Procedure Code. According to the FIR, Birari was tortured and confined, which prompted him to die by suicide by jumping from the fourth floor of the rest house. An FIR was registered in the case on June 20, 2022.

In July of the same year, a sessions court rejected Khan’s pre-arrest bail plea, following which he approached the high court. The high court granted him interim protection from arrest and the same was maintained from time to time.

Advocate Tejas Deshpande, appearing for Khan, submitted that he had no connection with the investigation conducted by Vyankatesh as he was probing some other offence. Deshpande submitted that Khan had cooperated with the probe and has chronic ailment, therefore his custodial interrogation was not necessary.

However, additional public prosecutor Rutuja Ambekar opposed the plea arguing that the accused jointly investigated the deceased and failed to comply with the guidelines issued by the Supreme Court judgment in the 1997 DK Basu v. State of West Bengal case. She added that no leniency should be shown to the applicant, who is a public servant, since it is a case of custodial death.

After perusing the submissions and the material on record, the court observed that three witnesses indicated the role of the applicant in the investigation of the deceased and the CCTV transcript showed the applicant in a vehicle, which was carrying the deceased.

“Prima facie above circumstances indicate active participation of the applicant in investigating the deceased which, according to prosecution, resulted into suicide by the deceased,” the bench noted.

It added that there was no material to indicate the deceased was produced before a magistrate within 24 hours of him being taken in custody. “Therefore, at this stage, prima facie it appears that the applicant coerced the accused/pressurized the deceased for recovery of 2kg of gold,” the court noted.

The court also said that the issue of delay in filing FIR raised by the applicant can be considered at the time of trial. The court added that a coordinate bench rejected pre-arrest bail plea of co-accused in October, 2022 and that despite notices, the applicant failed to turn up for investigation.

“Personal liberty of a person needs to be balanced with the right of the investigating agency to investigate into the offence,” said Justice Borkar adding that the nature of gravity of offence and its impact on society were required to be considered.

Dismissing the plea, Justice Borkar noted, “The nature of allegations against the applicant and others are serious, which has the effect of shattering confidence of the public in the law enforcing agencies. To preserve such confidence, it is necessary that such officials be entrusted with the statutory duty of performing acts in accordance with the duties cast on them under the law.”