The Bombay high court on Wednesday said the shoot-out of Badlapur sexual assault case accused Akshay Shinde could have been avoided and urged for the probe into his death to be carried out in a fair and impartial manner.
A division bench of Justices Revati Mohite Dere and Prithviraj Chavan said if it would be constrained to pass appropriate orders if the probe is not done properly.
"We are not suspecting the police on their activities, but come clean on all aspects," the court said.
It said this shoot-out cannot be termed as an 'encounter' as its definition is different.
The bench raised questions on the shoot-out, which took place on Mumbra bypass in Maharashtra's Thane district on Monday evening, and said it could have been avoided if police had tried to overpower Shinde first.
Why the accused was shot in the head instead of opening fire on his hand or legs first? it asked.
The bench said while it was not raising any suspicion at this stage, it was very hard to believe Shinde managed to seize a pistol from a police officer and open fire.
It is not very easy to unlock and open fire from a pistol, the HC said.
"The investigation has to be done fairly and impartially. If we find this is not done, then we would be constrained to pass appropriate orders," the court said.
It posted the matter for further hearing on October 3, by when police would have to take a decision on the complaint submitted by Shinde's father, seeking an FIR against the cops concerned.
Shinde, a 24-year-old contractual sweeper, was accused of sexually assaulting two minor girls at a school in Thane's Badlapur town. He was arrested on August 17.
The court also directed for all case papers to be immediately handed over to the Maharashtra Crime Investigation Department (CID), which would be probing the case.
"Why are files not handed over to the CID yet? Preservation of evidence is vital. Any delay on your part would raise doubts and speculations," it said.
The court was hearing a petition filed by Akshay's father Anna Shinde, who alleged his son was killed in a "fake encounter" and sought a probe into it by a special investigation team (SIT).
The petition, filed through advocate Amit Katarnaware, also demanded the HC monitor the investigation.
The HC asked how the police officers escorting the accused could be so negligent and careless that he managed to seize a cop's pistol and open fire.
"What is the SOP or guidelines when an accused, especially in such a serious crime, is taken in custody. Why should they (police) be so negligent and careless?" the HC said.
The officer who shot at the accused is an inspector who has experience on how to react in such a situation, it noted.
"Ordinarily, the retaliation would be on the leg or arm. Why directly on the head? Does he (police) not know where the shot has to be fired? It may have been spontaneous. The first reaction should have been to disarm him," the court said.
It also questioned police's case that Akshay managed to seize the pistol and opened fire.
Justice Chavan said, "This is very hard to believe. I have fired pistol hundred times. It is hard to unlock and fire. We are not suspecting at this stage but just looking at the possibilities. Revolver is easier. Any Tom, Dick or Harry can do it. But a pistol is very hard to fire."
The HC said the incident could have been avoided as the escorting team comprised officers from the Thane crime branch.
"Four officers were there in the vehicle. One of the officers was involved in encounters in the past. Four officers couldn't overpower the accused? How can we believe they couldn't overpower the accused. The accused was not hefty or strong. You all could have overpowered him," the court said.
The bench asked if the shot fired at Shinde was from a distance or point-blank range, if it was a ricochet or direct shot, and if it was a brush of the bullet of through-and-through shot.
"We want to know whether it was point-blank range...distance from where shot was fired. Ballistic experts would know. Was it an entry and exit wound? If yes, where was the exit," the HC said.
All these details would have to be submitted on the next date, it said.
The bench directed police to preserve all CCTV footages and call data records of all the four cops and the police vehicle driver.
It directed the police to forthwith collect forensic samples of hands of the deceased and the four police officers to verify if there was any residue from the use of pistols.
Katarnaware told the court that Akshay's parents met him the day he was killed, and he had asked when he would get bail and also asked for money.
"This shows he (Akshay) was not in a mental state to take any such drastic step," he said.
Akshay's parents want to take custody of the body but are unable to find a burial site for the final rites, he said.
Public Prosecutor Hiten Venegaonkar said the police would get in touch with local authorities and make necessary arrangements.
