Bombay High Court 'Shocked' As Thane Court Stays Magistrate's Finding That Badlapur Encounter Was Fake

The Bombay High Court on Thursday expressed 'shock' over a Thane Sessions Court judge, who stayed the 'findings' of a Magistrate Enquiry, 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.'

A division bench of Justices Revati Mohite-Dere and Dr Neela Gokhale questioned how such an order could be passed especially when the matter was already pending before them. 

Notably, the five policemen, who are accused of 'killing' the deceased, who was an accuse in the Badlapur Sexual Assault Case, had approached the Sessions Court in Thane, seeking to stay the findings of the Magistrate Enquiry, wherein it was 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."

Shocked over the February 21 order of the Sessions Court, Justice Mohite-Dere said, "We are shocked. How can the sessions judge pass such an order? Isn't he aware that we are already seized with this matter and it is being heard in every two weeks? Is this judicial propriety? How is such an order tenable and before that how can the revision application itself be maintainable because this matter is pending before us?"

The judges questioned Chief Public Prosecutor Hiten Venegavkar if the State opposed the revision applications of the policemen before the Sessions Court and he responded in the affirmative. However, the bench seemed unimpressed with the response.

"Is it (order) overreaching the fact that we are seized with the matter...When the matter is sub-judice, could the sessions court entertained the petition? We do not see any objection raised by the State against the maintainability of the petition itself. Has the judge overstepped his brief? Is it not judicial insubordination by not following judicial propriety? We are shocked...Is the State going to challenge the order not?" Justice Mohite-Dere observed.

The judge sought to know from Venegavkar if he, being the State Prosecutor and also as an officer of the court, was 'appalled and shocked too' over the stay order, to which he responded, "We too are shocked milord."

During the hearing, the judges also appointed Senior Advocate Manjula Rao as Amicus Curiae in the petition filed by the father of the accused in the Badlapur Sexual Assault Case, alleging that his son was 'killed' in a fake encounter case.

The bench noted that the father of the deceased had in a previous hearing told the court that he doesn't not wish to pursue the case further citing "delay in getting justice" for his son. The bench therefore appointed Rao, to assist the court as an Amicus.

"Madam Rao, we seek your assistance in this case. There is a report of a Magistrate Enquiry, so you will have to address us on whether the State can register an FIR (against the five policemen) in view of this report? They (State) have maintained that a Judicial Commission is already enquiring into the case and also the State CID is enquiring into the issue. So, you will have to address us if the FIR can be registered or whether this establishment of commission or the CID enquiry will be an impediment for the police to lodge the FIR," Justice Mohite-Dere orally told Rao, who was present in the court.

The bench therefore, adjourned the hearing till March 5, for Rao to go through the papers and make submissions as told by the bench. 

The Court was hearing petitioner/father's plea who among various reliefs sought an investigation into the matter as well as registration of FIR against the erring police officials.

On 25 September 2024, the Court remarked that it was difficult to accept that the accused, who was not a "strong man", couldn't be overpowered by the police officials who were with him. It was orally noted that the police official who allegedly shot at the accused cannot say that he did not know how to react, considering he was an Assistant Police Inspector.

On 19 December 2024, the parents of the deceased accused told the Court they have been surviving by begging on the streets as no one is giving them any job and even they have been forced to leave their own house and live on footpaths.