In custodial death cases at charge framing stage, frame S.302 IPC charges if material shows strong suspicion via torture claims, medical inconsistencies, custodial lapses, adverse inferences from missing evidence/non-compliance, even absent direct proof.

JUDGMENT :

SHYAM C. CHANDAK, J.

“The dead cannot cry out for justice; it is a duty of the living to do so for them.” This famous quote by author Lois McMaster Bujold emphasizes the moral obligation of the living to seek justice, accountability, and honor for those who have passed away.”

1) The aforesaid quote is very apt to state at the outset as this petition involves a serious controversy as to whether the death of the victim Agnello Valdaris (“Agnello”) was homicidal or accidental, who had allegedly died in the police custody.

2) The Petition is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) impugning the Order dated 17^th September 2022, passed by the Court of learned Special Judge below (Exh.19) in POCSO Special Case No.85 of 2017. Thereby, the learned Judge directed to frame the charge of the offence of Sections 302 and 295-A of I.P.C. against the Petitioner and co-accused, who are police officers. However, according to the Petitioner, his co-accused and Respondent No.1-CBI, since there is no evidence of the offence of 302 of I.P.C., no charge was leveled for the same.

3) Heard Mr. Merchant, learned counsel for the Petitioner, Mr. Patil, for Respondent No.1-CBI, Smt. Shinde, learned APP for Respondent No.2-State and Dr. Chaudhry, for Respondent No.3. Perused the record.

4) The Petition pertains to assignment of learned Single Judge. It has come up before us by way of a Reference in the following background :-

5) That, in the night intervening of 15^th and 16^th April 2014, Agnello s/o Respondent No.3 and three others namely Sufiyan, Mohd. Irfan Hajam and juvenile boy ASK (“the JB”) were arrested by Wadala Railway Police Station for investigation in its FIR bearing C.R. No.49 of 2014, under Sections 392 and 34 of I.P.C., registered on 11.04.2014, on the complaint filed by Mr. Shrinivas Kishan Veeramallu against unknown persons.

5.1) The prosecution case is that, on 18.04.2014, at about 11:20 AM, when escorting police Suresh Mane/A-4 and Ravindra Mane/A-5 were taking Agnello for medical treatment from Wadala Railway Police Station, Agnello tried to escape and flee from the custody of police. In that attempt, Agnello ran along the middle of the railway track. At that juncture, local train No.BR-25 was about to approach Platform No.1 of Wadala Railway Station. Shri Vijay Mahadik, motor man in that train observed Agnello running in a dangerous manner while two individuals (A-4 & A-5) were shouting and chasing him. In that situation, Agnello came under the moving train, sustained injuries and died instantly. Consequently, Suresh Mane filed a complaint with Wadala Railway Police Station which was registered as FIR bearing C.R. No.52 of 2014, under Section 224 of I.P.C. against Agnello. Separate ADR was registered at Wadala Police Station in respect of Agnello’s death. As per prevailing SOP of the DGP Maharashtra, further investigation was transferred to State CID.

5.2) The aforesaid complaint was followed by the complaints dated 30.04.2014, 05.05.2014 and 12.05.2014 filed with different authorities by Respondent No.3. Later on, Respondent No.3 filed Criminal Writ Petition No.2110 of 2014. By Order dated 10.06.2014 passed in that Writ Petition, this Court directed the Crime Branch, Mumbai to register an offence within 24 hours. Before that, following certain SOP, the State CID, Navi Mumbai had already started investigating into the accidental death of Agnello.

5.3) On 11.06.2014, Malojirao Patil, Deputy Superintendent of Police, State CID filed a complaint.