The Bombay high court on Monday ordered a first information report (FIR) against five policemen for the custodial death of Badlapur sexual assault case accused Akshay Shinde, allegedly shot dead in a police van in September 2024, and setting up of an Special Investigation Team, noting that a prima facie offence is disclosed.
A division bench rapped the Maharashtra government for its 'reluctance' to lodge an FIR, stating that such action undermines the state's legitimacy and the common man's faith in the criminal justice system.
When a prima facie offence is disclosed, it is mandatory to lodge a case, the bench of Justices Revati Mohite Dere and Neela Gokhale noted.
The bench said it was satisfied that the encounter required a thorough investigation as it is undisputed that the deceased succumbed to bullet injuries inflicted by a police officer when he was in police custody.
"We are of the opinion that a cognisable offence is disclosed, and as such, the police are duty-bound to proceed in adherence with the law. Reasonableness and credibility of the information are not conditions precedent for registering an FIR," the bench said.
As a Constitutional court, the HC cannot remain 'mute spectators' even though the parents of the deceased had said they do not want to pursue the case, the bench said.
The parents of Shinde had claimed that their son was killed in a fake encounter.
"When a prima facie offence is disclosed, it is mandatory for a case to be lodged. When a cognisable offence is disclosed, the police are duty-bound to proceed in adherence with the law. Reasonableness and credibility of the information is not a condition precedent for registration of an FIR," the bench said.
Shinde, accused of sexually assaulting two minor girls at a school in Badlapur in Thane district, was allegedly killed in a police shoot on September 23, 2024, when he was being taken to Kalyan from the Taloja prison for questioning in another case.
The escorting police team had claimed they had shot at the accused in self-defence after he snatched the gun of one of them and opened fire.
A magistrate inquiry report, however, dismissed their argument and indicted five police personnel.
Slamming the government for its 'reluctance' to lodge an FIR, the bench said such action undermines the state's legitimacy and the common man's faith in the criminal justice system.
The bench added that a Constitutional court cannot ignore the state's failure to fulfil its obligations and remain mute spectators.
The bench directed the joint commissioner of Mumbai Police's crime branch Lakhmi Gautam to form an SIT under a DCP and register FIR.
The court said it was confident that the SIT would unearth facts and conduct a fair and impartial investigation from all angles, uninfluenced by anyone.
After the order was pronounced, senior counsel Amit Desai, appearing for the government, sought a stay but the court refused.
"The only condition for recording an FIR is that there must be information and that information must disclose a cognisable offence, both present in this case," the HC said.
The bench said a refusal to investigate a crime undermines the rule of law, erodes public faith in justice, and allows perpetrators to go unpunished.
"The state's reluctance to even register an FIR has left the deceased's parents helpless, forcing them to forgo closure over their son's untimely death. Such negligence weakens public trust in institutions and compromises the state's legitimacy. As a constitutional court, we cannot allow this and be mute spectators," it said.
The bench said police authorities are duty bound to adhere to the principles of law and SC judgements and ensure that the case, which prima facie discloses the commission of a cognisable offence, is taken to its logical end.
"Such action was warranted in the interest of justice and to uphold public confidence in the justice delivery system. The same is necessitated, keeping in mind the adage 'Justice must not only be done, but seen to be done'," the HC said.
"We are unable to understand the reluctance of the State CID or the police authorities to register an FIR more particularly when the petitioner's (Akshay Shinde's father Anna Shinde) complaint and now the inquiry report prima facie discloses the commission of a cognisable offence," the HC said.
The bench said the criminal justice system will acquire credibility only when the citizens at large are convinced that justice is based on the foundation of truth.
"Crimes affect the entire society and thus the legitimate interest of the society in the investigation cannot be brushed aside.
"It is important to strengthen the faith and confidence of people in the law enforcing agency and this institution lest the faith of the people in the administration of justice stands shaken," the court said.
Denial of a fair probe or delay is as much injustice to the victim and the society as to the accused, it added.
Considering the facts in the magistrate's report, the court cannot allow the issue to be swept under the carpet, especially when the moot question about adhering to Constitutional norms and due legal process is at stake, the bench said.
"Citizens cannot be permitted to remain uncertain regarding their faith in the law-enforcing machinery. It is the responsibility of the police to follow Constitutional principles and uphold the life of every individual, whether an innocent one or a criminal," the court said.
It would be unfair to Shinde's parents, who come from the society's poor strata, to be deprived of closure and also to citizens of a democratic country, it said.
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