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Synopsis

The Bombay High Court recently allowed a plea related to the death of 23-year-old Altaf Kadir Shaikh at Ghatkopar police station in September 2009 and directed that murder charges be framed against the three accused police officials under Section 302 of the IPC.

Based on the CBI's investigation, Justice PD Naik vacated an order of the Sessions Court upholding charges under Section 323 (hurt) of the Indian Penal Code and instead directed the court to frame charges under Sections 120-B (conspiracy) r/w 302 (murder), 330, and 342 (wrongful confinement) of the Indian Penal Code.

“There is no requirement of sanction under Section 197 of CrPC. The act of public servant to assault the person in custody resulting in death cannot be said to be an act committed during the course of discharge of official duty,” Justice Naik observed while allowing the petition filed by the victim’s mother, Mehrunissa Shaikh.

On September 11, 2009, Shaikh, an alleged drug addict, died at the police station, hours after he was picked up as a suspect in a house break-in matter. Justice Prakash D Naik passed a verdict in a plea seeking to quash and set aside an order by a special CBI judge on January 3, 2018.

The deceased’s mother alleged that three police officers, Sub-Inspector Sanjay Khedekar, Head Constable Raghunath Kodekar, and Police Naik SayajiThombare, had severely beaten her son while taking him away from their home around 4:00 a.m. for an investigation of some matter. The petition further alleged that because her kid was pronounced dead prior to admission at 9.30 a.m. at Rajawadi Hospital, the police personnel were guilty of murder and should be tried accordingly.

Shaikh's mother stated in the appeal that she was informed that her son had suffered a brain injury and was hospitalized. When she arrived, she discovered her son was already dead and was lying on a stretcher in an unbuttoned shirt and underwear.

The deceased had injury marks on his head, hands, arms, back, legs, and ears, and blood was gushing from his head, hands, arms, back, legs, and ears, but the inquest panchnama revealed no fresh wounds. The senior police officer apparently discovered Shaikh unresponsive in the police station's detention room, and he was pronounced dead upon arrival at the government hospital.

It is alleged that a post-mortem report completed by five doctors at the JJ Hospital in Mumbai was never given to the family. In 2009, an FIR was filed in the matter only following the intervention of the High Court, and the inquiry was transferred to the CBI. The accused cops asserted that Shaikh's death was the result of a drug overdose.

The CBI only filed charges against the policemen under sections 120-B, 323 and 342 of the Indian Penal Code. It was stated that the Maharashtra State Government denied permission to prosecute the accused for any other crime.

A Metropolitan Magistrate framed charges against the defendant under sections 120-B, 323 and 342 of the Indian Penal Code in 2013. However, the magistrate later granted the mother's protest motion and remanded the case to the Sessions Court.

The Sessions court referred the case back to the Magistrate's Court on January 3, 2018, noting that the charge sheet did not indicate any human rights violations. In the present petition, Shaikh's mother, Mehrunissa, challenged this order.

The court noted that the magistrate had considered multiple circumstances before referring the case to the Sessions Court. It affirmed the magistrate's comment that, at the prima facie stage, when there are two contradicting medical reports, the opinion of the doctors who did the post-mortem should take precedence over the second opinion. It was stated that the correct opinion can only be determined at trial.

The high court noted that in the initial post-mortem report by JJ Hospital, “there was no semblance of either consumption of Alprazolam (anxiety medication) or alcohol,” and the AIIMS report was only a second opinion.

The high court observed that if, on the basis of the material on record, the court could come to the conclusion that the commission of the offence is a probable consequence, a case for framing of charge exists.

The court observed, "At the prima facie stage, the strong suspicion that the accused may have committed the grave offence would be sufficient to apply the grave offence against the accused.”

The court relied on statements of family members and neighbors and opined, “The said statements prima facie show that respondent/accused while taking the deceased in their custody assaulted him, dragged him to the autorickshaw, and took him to the police station where he was detained.”

Relying on the decision in S. P. Vaithianathan v. K. Shanmuganathan, the court ruled that the Act, Code, or any other law granting the police authority did not require them to beat and torture the suspect when he appeared before them in answer to the summons.

“In the light of the principles enunciated in several decisions and factual matrix of this case, it will have to be held that the learned Sessions Judge/Special Judge has passed erroneous order while dealing with the issue of framing charge and remitted the case back to the trial Court for the prosecution of the Accused for offences under Sections 120-B r/w 323, 342 of IPC,” the court observed.

The present bench also directed the trial court to complete the trial within a year.

Case Title: Mehrunnisa Kadir Shaikh vs. State of Maharashtra &Ors.

Statute: The Indian Penal Code