Magistrate Report Not 'Material' To Book Cops For Alleged Fake Encounter In Badlapur, Will Decide After CID Probe: State To Bombay HC

On whether it will register an FIR based on the "findings" of an Enquiry Magistrate, who concluded that the five policemen killed the accused of the Badlapur Sexual Assault case in a "fake encounter", the Maharashtra government today told the Bombay High Court that it cannot say the report constituted "material" to comply with the mandate in the Lalita Kumari judgment (to lodge FIR).

The State, which has not yet lodged any FIR based on the Magistrate's report, told the a division bench of Justices Revati Mohite-Dere and Dr Neela Gokhale that its CID is conducting an "independent enquiry" into the case and only after that is concluded, it can take a call. 

Special Public Prosecutor & Senior Advocate Amit Desai told the bench that the State "believes it is acting in accordance with the law."

"The investigations are ongoing... Our CID is carrying on its independent probe and based on the same it will come to its independent outcome whether FIR is to be lodged, if any cognizable offence is made out or not or if the same needs to be closed...We cannot say that this (Magistrate's report) constituted material for the purpose of Lalita Kumari (to lodge FIR)," Desai told the court.

The senior counsel added, "There is nothing to suggest that the probe team is acting in a malafide manner... Not the slightest action to suggest that our actions are contrary to law or there is some malice etc... we are conducting ourselves in accordance with law. I don't want to leave even a slightest impression in the mind of this Court that the State is not discharging its duties."

Notably, Magistrate gave its report on January 17, wherein it concluded that the encounter appeared to be a "fake" one as the use of force by the cops on the accused on the relevant day was "unjustified."

In the previous hearings, the parents of the deceased-accused had approached the bench led by Justice Mohite-Dere and told the court that they don't wish to pursue the case further due to "delay in getting justice" for his son. The bench had therefore appointed senior advocate Manjula Rao, to assist the court as an Amicus.

The judges had asked Rao to address the court on whether the State can register an FIR (against the five policemen) in view of the Magistrate's report and the role of the State after such a report is submitted. The bench had also asked Rao to argue on the issue of whether the FIR can be registered or whether the establishment of a Commission or the CID enquiry will be an impediment for the police to lodge the FIR.

Arguing on this issue, Desai cited the PUCL vs State of Maharashtra judgment of the Supreme Court pronounced in 2005, regarding 'police accountability in encounters'. He submitted that the detailed guidelines laid by the apex court are being followed by the State. 

"The judgement mandates an independent probe agency to enquire into the case, that we have done as our CID is an independent agency. All the guidelines laid down under PUCL verdict have been followed. Principles of PUCL have been complied with...Thus, this court sitting under Article 227 cannot issue a direction to the State to lodge an FIR on the basis of the Magistrate's report," Desai submitted.

To this, Justice Mohite-Dere made it clear, that the bench never asked the counsels to address on whether it can direct registering an FIR.

"We know our powers and limitations, Mr counsel. Our question was not on our direction but what is the role of the police on receiving the report... Our question was whether on the basis of the report if it is incumbent upon the police to lodge the FIR or not," Justice Mohite-Dere clarified. 

The bench will continue hearing the matter on Monday (March 10).