Bombay High Court: In the present case, two, four-year-old girls were sexually abused at a prominent co-educational school in Badlapur, Thane in September 2024. The petitioner’s son, Akshay Shinde (deceased) was the accused and a case was registered against him with the Badlapur (East) Police Station, Thane, alleging offences punishable under Sections 65(2), 74, 75, and 76 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS, 2023’) along with Sections 4(2), 8, and 10 of the Protection of Children From Sexual Offences Act, 2012 (‘POCSO Act’).
The Division Bench of Revati Mohite Dere* and Neela Gokhale, JJ., after perusal of the inquiry report, held that the encounter of the accused in the present case required thorough investigation, as it was undisputed that the accused succumbed to bullet injuries inflicted by a police officer, when he was in police custody. The Court held that the authorities were duty bound to adhere to the principles laid down in Lalita Kumari v. State of U.P., (2014) 2 SCC 1 (‘Lalita Kumari Case’) and ensure that the case which prima facie disclosed the commission of a cognizable offence, was taken to its logical end.
Background
The accused was arrested on 17-8-2024 and was in judicial custody in Taloja Central Jail in another case registered against him under Sections 65(2), 74, 75, 76 of BNS, 2023, along with Sections 4(2), 8, 10 and 21(2) of POCSO Act. Thus, two separate cases were registered against the accused for the two incidents that took place in the school and both the cases were transferred from Badlapur (East) Police Station to the Crime Branch, Thane on 7-9-2024. Later, another case was registered against the accused, with the Boisar Police Station for the offences punishable under Penal Code, 1860. The case was initially registered as Zero FIR on 5-9-2024 but was later transferred to Badlapur Police Station on 7-9-2024 and to the Crime Branch, Thane on 7-9-2024 itself.
On 20-9-2024, the Crime Branch, sought production warrant of the accused and the Magistrate issued an order on the same date, which warrant was produced before the Special Court, (POCSO), Kalyan where the Special Judge permitted the Crime Branch to take the accused’s custody from Taloja Jail. On 23-9-2024, the accused was taken into custody and thereafter left the jail premises in a vehicle with a police inspector and one API and two Hawaldars in the rear of the vehicle. An incident of firing occurred in the police van, during which altercation, the accused lost his life, and one officer sustained a bullet injury in his thigh and this incident was alleged by the petitioner to be a fake encounter by the police.
The petitioner addressed a complaint to the Commissioner of Police, Kalwa, Thane, and to DGP of Maharashtra via e-mail dated 24-9-2024 requesting the police to investigate the incident leading to death of his son. Since the petitioner was aggrieved by the inaction of the Police in registering an FIR; conducting proper investigation; and preservation of the CCTV footage of Taloja Jail, etc., the present petition was filed seeking a direction to the police to register an FIR and conduct investigation through a Special Investigating Team (‘SIT’).
Analysis, Law, and Decision
The Court relied on Lalita Kumari Case, which held the field vis-à-vis registration of an FIR on a complaint disclosing the commission of a cognizable offence. The Court opined that under Section 154 of Criminal Procedure Code, 1973 (‘CrPC’), it was mandatory to register FIR, once an offence, whether cognizable or not, was revealed, and there was no qualification of ‘reason to suspect’, the police officer could, in a given case, investigate the matter as per Section 157 and then file a final report under Section 173 of CrPC seeking closure of the matter. The Court opined that the Scheme of CrPC not only ensured that police wasted no time on false and frivolous investigation, but also that the police should not intentionally refrain from performing their statutory obligation of investigating a cognizable offence.
The Court relied on PUCL v. State of Maharashtra, (2014) 10 SCC 635, and Om Prakash v. State of Jharkhand, (2012) 12 SCC 72, and opined that in the present case there was an even greater need for transparency, as the victim was already in police custody, accompanied by four police personnel, yet the police claim it to be an encounter.
The Court noted that the Magistrate, after conducting an inquiry, found merit in the allegations made by the petitioner, and observed that the police were in a position to control the situation and could have avoided the accused’s death. The Magistrate recorded the circumstances which created doubt about the genuineness of the encounter.
The Court stated that it did not understand the reluctance of the State CID or the police authorities to register an FIR particularly, when the petitioner’s complaint and the inquiry report prima facie disclosed the commission of a cognizable offence. The Court took note of the submission that the Commission of Inquiry headed by a retired Chief Justice was also looking into the custodial death and opined that it did not understand whether that could be a reason for not registering the FIR, considering that the Commission of Inquiry recommendation would be only recommendatory in nature.
The Court again relied on Lalita Kumari Case (supra) and opined that a cognizable offence was disclosed based on the petitioner’s complaint or otherwise and as such, the police were duty bound to proceed in accordance with the law. The Court also opined that reasonableness and credibility of the information was not a condition precedent for registration of an FIR and the only condition that was sine qua non for recording an FIR under Section 154 was that there must be information, and that information must disclose a cognizable offence, and both were present in the present case.
The Court stated that the petitioner hailed from a poor strata of the society and had promptly registered a complaint with the police authorities on 24-9-2024. The petitioner and his wife informed this Court in February 2025 that considering the delay that had taken place; their financial condition as that they were living on the streets with no source of income and for other reasons also, they did not wish to press this petition.
The Court opined that only because the petitioner hailed from the poor strata of the society, his grievance could not be ignored or brushed aside by the State. The Court stated that the offence was against the State and it was the responsibility of the State to take appropriate steps, if not on the basis of the petitioner’s complaint, even on the basis of the inquiry report or otherwise, on the basis of the information received and take the same to its logical end.
The Court opined that crimes affect the entire society and thus the legitimate interest of the society in the investigation could not be easily brushed aside. It was important to strengthen the faith and confidence of the people in the law enforcing agency and this institution, lest the faith of the people in the administration of justice stands shaken. Further, the Court opined that denial of fair investigation or delay in investigation was as much injustice to the victim and the society as to the accused. The concept of “fair and proper investigation” meant that investigation must be unbiased, honest, just, and in accordance with law.
The Court after perusal of the inquiry report, held that the encounter of the accused in the present case required thorough investigation, as it was undisputed that the accused succumbed to bullet injuries inflicted by a police officer, when he was in police custody. A refusal to investigate a crime undermined the Rule of Law, eroded public faith in justice, and allowed perpetrators to go unpunished.
The Court stated that the State’s reluctance to even register an FIR had left the petitioner and his wife feeling helpless, forcing them to forgo closure over their son’s untimely death. The Court thus opined that such negligence weakened public trust in institutions and compromised the State’s legitimacy and as a Constitutional Court, this Court could not permit this and be mute spectators.
The Court held that the authorities were duty bound to adhere to the principles laid down in Lalita Kumari Case (Supra) and ensure that the case which prima facie disclosed the commission of a cognizable offence, is taken to its logical end. Thus, the Court constituted a SIT under the supervision of the current Joint Commissioner of Police, Crime, Mumbai, and the SIT was to take appropriate steps in accordance with law and shall conduct the investigation, fairly, and impartially from all angles, uninfluenced by anyone.
The Court stated that this course of action was warranted in the interest of justice, to advance the cause of justice and to uphold public confidence in the justice delivery system as the same was necessitated, keeping in mind the adage ‘Justice must not only be done, but seen to be done’.
[Anna Maruti Shinde v. State of Maharashtra, 2025 SCC OnLine Bom 1016, decided on 7-4-2025]
*Judgment authored by: Justice Revati Mohite Dere
Advocates who appeared in this case :
For the Petitioner: Amit Katarnaware a/w Pooja Dongare and Aditya Katarnaware for the Petitioner
For the Respondent: Amit Desai, Senior Advocate/Spl PP a/w Hiten S. Venegavkar, PP and P.P. Shinde, APP for the Respondent-State; Manjula Rao, Senior Advocate, as an amicus curiae a/w Kunal J. Rane, Rohan Deshmukh, Pratik Deomore and Latika Chitre
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
