Bombay HC Orders SIT Probe Into Five Policemen Involved In Badlapur 'Fake' Encounter, Says Can't Ignore State's Reluctance To Register FIR

The Bombay High Court on Monday ordered SIT probe into five policemen allegedly involved in the Badlapur 'fake' encounter case.

A division bench of Justices Revati Mohite-Dere and Dr Neela Gokhale while pronouncing the order said,

"Upon perusal of the inquiry report, we are satisfied that the case in question i.e. the encounter requires thorough investigation, as it is undisputed that the deceased succumbed to bullet injuries inflicted by a police officer, when he was in police custody. Closing the matter in the absence of the deceased's parents, would have been easy, but a Constitutional Court cannot ignore the State's failure to fulfil its obligations. 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 petitioner and his wife feeling 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 permit this and be mute spectators."

The bench added that Police is duty bound to adhere to Lalita Kumari Judgment and take the case to its logical end.

It thus ordered constitution of an SIT under Lakhmi Gautam, the Joint Commissioner of Police, Mumbai. The officer has been given the liberty to select officers of his choice to constitute the SIT and the team will be headed by a DCP. State CID has been directed to hand over all papers to SIT within 2 days.

"If the Petitioner doesn't come forward, the criminal law can be set into motion by anyone including the police...This course of action is warranted in the interest of justice, to advance the cause 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'," Court said.

State's request to stay the judgment for two weeks was also rejected.

The bench noted that the petitioners - the parents of the deceased, were from the poor strata of the society and had even filed a complaint just a day after the shootout, yet not FIR was lodged on their complaint.

"Only because the complainant/informant/victim hails from the poor strata of the society, his grievance cannot be ignored or brushed aside by the State. The offence, if any, is against the State and it is 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. Any criminal offence is an offence against the society and the State acts as the guardian of human rights and as the protector of law," the judges said in the order. 

In its 44-page order, the bench underscored that crimes affect the entire society and thus the legitimate interest of the society in the investigation cannot be easily brushed aside. It is thus 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.

"Denial of fair investigation or delay in investigation is as much injustice to the victim and the society as to the accused. The concept of 'fair and proper investigation' means that investigation must be unbiased, honest, just and in accordance with law," the bench observed. 

The development comes in a petition filed by the parents of the accused in the Badlapur school sexual assault case, who was killed in an allegedly staged encounter on September 23, 2024. The parents claimed it to be a fake encounter case, alleging that their son was killed. 

In the initial hearings, the judges had pulled up the State for shoddy probe in the case and even prima facie opined that it was difficult for them to accept that the five police officers present in the van, could not 'overpower' the accused. The judges had further opined that the cops could have 'avoided the shootout.'

Notably, in January, this year, a report was filed by a Magistrate under section 176 of the Criminal Procedure Code (CrPC), in which the Magistrate concluded that the force used by the five policemen in the altercation with the deceased was 'unjustified' and that these policemen were responsible for his death. As per the report, there were no fingerprints of the deceased on the gun, allegedly used by him to fire against a cop. It further stated that the police's stance that they fired in private defence was 'unjustified and under the shadow of suspicion.'

However, the parents of the deceased told the judges that they do not wish to continue with the case and pursue it further as there was a 'delay in getting justice' to them. They had therefore, expressed their wish of withdrawing their petition, on February 6. It would not be out of place to mention that in December last year, the parents had told the bench that because of the instant case, they have been removed from their village and are forced to live on the streets and beg for their survival. 

In a hearing held on February 7, the bench was 'shocked' after noting that a sessions court in Thane had stayed the findings of the Magistrate, which concluded that there was 'substance' in the allegations made by the parents of the accused in the Badlapur Sexual Assault Case that their son was killed in a 'fake encounter.'

The judges had also appointed Senior Advocate Manjula Rao as an Amicus Curiae in the case to assist the case on whether the police can lodge FIR on the basis of the findings of the Magistrate and if the State is right to argue that it will wait for the State CID's preliminary enquiry to over and only then decide as to whether it should lodge an FIR or not. The State through Senior Advocate Amit Desai assisted by Public Prosecutor Hiten Venegavkar and Additional Public Prosecutor Prajakta Shinde, had argued that the Magistrate Report does not contain any 'material' for the State to lodge an FIR. It assured the judges that the State CID is conducting an 'independent' probe. 

Countering the State, Amicus Rao had on March 10, told the judges that the State was duty-bound to lodge an FIR against these five cops but it failed in doing so. She pointed out that a day after the deceased was shot to death, his parents had written a complaint letter to the Director General of Police, Commissioner of Police, Thane and the local police. Based on this letter, the FIR ought to have lodged but the police chose not to, Rao argued. 

Hearing both the sides, the bench closed the matter for judgment.

Appearance:

Advocates Amit Katarnaware, Pooja Dongare and Aditya Katarnaware appeared for the Petitioners.

Special Public Prosecutor & Senior Advocate Amit Desai along with Chief Public Prosecutor Hiten S. Venegavkar and Additional Public Prosecutor Prajakta Shinde represented the State.

Senior Advocate Manjula Rao, appointed as Amicus Curiae was assisted by Advocates Kunal Rane, Rohan Deshmukh, Pratik Deomore and Latika Chitre.

Case Title: Anna Maruti Shinde vs State of Maharashtra (Writ Petition 4107 of 2024)

Citation: 2025 LiveLaw (Bom) 135

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