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BOMBAY HIGH COURT
Prakash D. Naik, J.
Mehrunnisa Kadir Shaikh – Petitioner
versus
State of Maharashtra and Ors. – Respondents
Criminal Writ Petition No.1954 of 2019
Decided on 27.3.2023
(A) Criminal Procedure Code, 1973 – Section 228 – Framing of charge – If on the basis of material on record Court could come to conclusion that commission of offence is probable consequence, a case for framing of charge exists – If Court were to think that Accused might have committed offence it can frame charge, though for conviction conclusion is required to be that Accused has committed offence – At the stage of framing of charge probative value of material on record cannot be gone into, material brought on record by prosecution has be accepted as true at that stage – At prima facie stage strong suspicion that Accused may have committed grave offence would be sufficient to apply grave offence against Accused. (Para 22)
(B) Criminal Procedure Code, 1973 – Section 197 – Indian Penal Code, 1860 – Section 120-B, 302, 330 and 342 – Sanction for prosecution of public servant – If a Police Officer assaults a prisoner inside a lockup he cannot claim such act to be connected with a discharge of his authority or exercise of his duty unless he establishes that he did such act in his defence or in defence of other or any property – There cannot be a universal rule to determine whether there is reasonable nexus between act done and official duty nor is it possible lay down such rule – In case of assault made if intrinsically connected with a related to performance of official duties, sanction would be necessary under Section 197 of Cr.P.C. but such relation to duty should not be pretended or a fanciful claim – Offence must be directly or reasonably connected with official duty to require sanction – It is no part of official duty to commit offence – Special Judge (CBI)/Sessions Court directed to frame charges against Respondents. (Paras 28 and 33)
(C) Criminal Procedure Code, 1973 – Section 190 – Cognizance of offence – Investigation is exclusive domain of Police – Taking cognizance of offence is an area exclusively within domain of a Magistrate – At this stage Magistrate has to be satisfied whether there is sufficient ground for conviction – Whether evidence is adequate for supporting conviction, can be determined only at trial and not at stage of inquiry – Section 190(1)(b) does not lay down that Magistrate can take cognizance of offence only if investigating officer gives opinion that investigation has made a case against Accused – Magistrate can ignore conclusion arrived at by Investigating Officer and independently apply his mind to facts emerging from investigation and take cognizance of case – Correctness of order whereby cognizance of offence has been taken by Magistrate should be sparingly interfered with, unless it is perverse and based on no material – Court should exercise utmost restraint and caution before interfering with order of taking cognizance by Magistrate, otherwise trial would be stalled. (Para 30)
Result: Criminal Writ Petition allowed.
JUDGMENT
The Petitioner has challenged the order dated 3rd January, 2018 passed by learned Special Judge (CBI) below Exh.1 in Sessions Case No.826 of 2014 directing that the record and proceedings in C.C. No.1170/PW/2010 be transferred to Court of learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai for trial of offences punishable under Sections 120-B r/w 323, 342 of Indian Penal Code (for short ‘IPC’).
2. The Petitioner is the mother of deceased Altaf Kadir Shaikh who according to her died due to custodial torture inflicted by the Accused/Respondent Nos.2 to 4.
3. The Petitioner’s contention is that on 11th September, 2009 at about 04:00 hours in the morning, the Petitioner heard a knock at her door. Three persons were standing outside. They asked whether Altaf is available. She told them that he is sleeping. All of them came inside her house and on seeing Altaf sleeping they started beating, slapping and kicking him. One of them disclosed that he was Sub-Inspector Khedekar from Ghatkopar Police Station and had come to pick up Altaf for his presence is required by the SHO of Ghatkopar Police Station. She requested him that since the SHO will not be present at the wee hours, she will drop Altaf at the Ghatkopar Police Station early morning. P.S.I. Khedekar did not listen to her request and kept on slapping Altaf. Three of them caught hold of Altaf by his collar and back of his pant and dragged him to the auto rickshaw by kicking and punching him constantly. They pulled Altaf’s hair and slapped him on his face. They threw him in auto rickshaw and took him to Ghatkopar Police Station. Sub-Inspector Khedekar had told the Petitioner that she should visit the Police Station in the morning. Two Policemen visited Petitioner’s house. They told her that she have been called at Ghatkopar Police Station for recording her statement. She accompanied them. On the way she was informed that Altaf has been hit on the head and he was admitted in Rajawadi Hospital. She was taken to Rajawadi Hospital. On reaching Rajawadi Hospital, the Petitioner found her son’s body lying on the stretcher. His body had unbuttoned shirt and underwear. His body had bruises. Injury marks were present at his head, hands, arms, back, legs, ears and blood was oozing. Lady Nayab Tahsildar was present. She was recording Panchanama. Petitioner’s thumb impression and her elder son’s signatures were attested on written and blank papers stating that Altaf’s body and Panchanam is required to be sent for conducting postmortem urgently. Postmortem was conducted by panel of five Doctors. Petitioner was informed that she will get postmortem report within ten days. Petitioners husband visited J.J. Hospital for collecting Postmortem Report. He was told by hospital authorities that the report has been sent to Assistant Commissioner of Police. Thereafter, it was informed that, Postmortem Report had been sent to New Delhi. ADR report was filed vide ADR No. 184 of 2009. The Petitioner filed complaint agitating about the death of Altaf Shaikh in Police custody and seeking investigation. No FIR was registered.
4. The Petitioner filed Criminal Writ Petition No. 2613 of 2009 before this Court contending that her son Altaf was killed in Police custody. Directions were sought that case be registered against the Police Officers, who according to her were responsible for the murder of her son. This Court made several observations regarding conduct of Police and held that prima facie the death of deceased Altaf Shaikh has taken place in the Police Station as a result of torture. Vide order dated 16th October, 2009, it was directed that case be registered against the concerned Police Officials and the persons who conducted the inquest for offences under Sections 302, 201 and 330 of IPC. It was further directed that the investigating agency may add or delete the offences as a result of investigation, if they find that there is evidence of some other offence or th
(1) At the stage of framing of charge probative value of material on record cannot be gone into, material brought on record by prosecution has be accepted as true at that stage.(2) It is no part of o....
The main legal point established in the judgment is the reliance on inculpatory evidence to determine the circumstances of the deceased's death and the negation of the exculpatory plea presented by t....
The main legal point established in the judgment is that in cases of custodial death and police atrocities, the nature of charges should reflect the aggravated culpability indicated by the evidence, ....
The main legal point established in the judgment is the requirement for substantial evidence to support allegations of custodial torture and human rights violation, and the court's authority to quash....
Custodial death constitutes a severe violation of rights, demanding accountability from police, reaffirming the presumption of police knowledge in such cases for justice.
The court emphasized the necessity for independent investigations into custodial deaths and affirmed the intrinsic protection of the right to life under Article 21, mandating scrutiny in cases of sus....
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