The main legal point established in the judgment is the duty of the court to independently apply its mind and the importance of preserving evidence in cases of custodial death. The judgment also emphasized the sufficiency of prima facie evidence to warrant framing of charges under Section 302 of the Indian Penal Code, 1860.

JUDGMENT

Amit Borkar, J. - This Petition is directed against the order dated 17th September 2022, passed by the learned Special Judge under the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), Greater Mumbai on an Application below Exhibit- 19 for framing of charge against the petitioners under Section 302 and to direct investigating agency to file supplementary charge-sheet under Section 302 of Indian Penal Code, 1860, referred by respondent no.3 (father of victim), whereby the said Application came to be allowed.

2. The background facts necessary for determination of this Petition can be summarised as under;

(i). The petitioners-accused are arraigned alongwith another accused for offences punishable under Sections 120B, 218, 223, 323, 342 of Indian Penal Code, 1860 and Section 29 of the Mumbai Police Act, 1951. Subsequently, investigating agency filed supplementary charge-sheet on 3rd December 2016 for offences under Sections 6 and 12 of POCSO Act and Section 23 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'Juvenile Justice Act') read with Section 34 of Indian Penal Code, 1860.

(ii). The allegations made by respondent no.3 in the Protest Petition is that on the night of 15th April 2014 and 16th April 2014, respondent no.3's son and other victims were arrested by Wadala Police Station in Criminal No.49 of 2014 and were severely tortured and sexually abused. The deceased was not produced before the learned Magistrate and on 16th and 17th April 2014. He was tortured and sexually abused. The other victims were also sexually abused. The accused persons threatened deceased that he would be killed.

(iii). On 17th April 2014, the petitioners filed complaint before the Metropolitan Magistrate Railway Court stating that his son (deceased) had been in custody over 24 hours and not produced before the Court. The learned Magistrate, therefore, directed Police to produce the deceased before the Court on the same day. Inspite of communication of the said order, the deceased was not produced before the learned Magistrate.

(iv). On 17th April 2014, around 8.00 p.m., deceased was taken to J. J. Hospital for treatment of his injuries by Police. The deceased told attendant medical officer about the assault by the Police Officers. The accused threatened respondent no.3 that his son will have to pay price. The accused persons forced respondent no.3 to attest MLC stating that the injuries to him were self-inflicted.

(v). On 31st December 2015, charge-sheet was filed against the petitioners and another under Sections 120B, 218, 223, 323, 342 of Indian Penal Code, 1860. The investigating agency had filed charge-sheet under Sections 302, 377 and provisions of POCSO Act. After intervention of this Court, the investigating agency submitted supplementary charge-sheet under Sections 6 and 12 of POCSO Act and under Section 23 of Juvenile Justice Act.

(vi). On 19th December 2019, this Court, after holding that it to be a case of custodial death, directed Special Court to frame charge under Section 302 against the petitioners and another. The petitioners, therefore, filed Appeal before the Apex Court and the Apex Court directed Trial Court to independently decide question of framing charge independently without being influenced by the observation of the High Court.

(vii). The respondent no.2, therefore, filed Protest Petition before the Special Court seeking direction against the investigating agency (CBI) file supplementary charge-sheet under Section 302 of Indian Penal Code, 1860 and to frame charge under Section 302 of Indian Penal Code, 1860 against all accused. The accused filed their reply to the Protest Petition on merits. The investigating agency (CBI) also filed their reply to the Protest Petition and submitted that there is no material on record to, prima facie, show that accused the Police Officials are committed offence under Sections 302 or 304 part 2 of Indian Penal Code, 1860.

(viii). The lear