Custodial Torture Not Official Duty: Bombay Hight Court Directs Sessions Court To Enhance Charges Against Police Officers From Hurt To Murder

Observing that a sanction isn’t required to prosecute police officers in cases of death due to custodial torture, the Bombay High Court directed a Special CBI Court to charge three police officers with murder of a 23-year-old man in 2009.

Justice PD Naik set aside an order of the Sessions Court simply upholding charges under section 323 (hurt) of the IPC, based on the CBI’s investigation, and instead directed the court to frame charges for offences under Sections 120-B (conspiracy) r/w 302 (murder), 330 & 342 (wrongful confinement) IPC.

“There is no requirement of sanction under Section 197 of CrPC. The act of public servant to assault the person in custody resulting into 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.

Then police sub-inspector Sanjay Khedekar, head constable Raghunath Kolekar, police naik Sayaji Thombre from Ghatkopar police station will now be charged with the murder of Altaf Kadir Shaikh, who was allegedly mercilessly assaulted and dragged from his residence and taken to the police station in the wee hours of September 11, 2009.

Facts

Shaikh’s mother said in the petition that she was informed her son was hit on the head and was admitted to the hospital. When she visited, she found her son lying dead on a stretcher in an unbuttoned shirt and underwear.

Injury marks were present on his head, hands, arms, back, legs, ears and blood was oozing, but the inquest panchnama found no fresh wounds, the plea stated. Apparently, Shaikh was found unresponsive in the police station’s detection room by the senior police officer and declared dead on arrival at the Government Hospital.

A post-mortem report prepared by five doctors of the JJ Hospital, Mumbai was never handed over to the family, it is claimed. It was only after the HC’s intervention, that an FIR was registered in the case and the investigation was handed over to the CBI in 2009. The accused policemen alleged that Shaikh died due to drug overdose.

According to the doctors at the JJ Hospital, death was caused due to head injuries. However, according to the final report, death was due to acute anxiety medication, alcohol intoxication with contusions resulting in subarachnoid hemorrhage (bleeding in the space between the brain and the surrounding membrane), and pneumonia associated fatty liver.

However, CBI filed a chargesheet against the officers only under sections 120-B, 323 and 342 of IPC. It mentioned that the Maharashtra Government refused a sanction to prosecute the accused under any other offence.

The CBI also attached a report of three doctors at the All Indian Institute of Medical Sciences, New Delhi that opined that Shaikh’s death was caused by respiratory failure due to combined additive effect of toxicity of anxiety medication, intoxication and pneumonia only.

In 2013, a Metropolitan Magistrate framed charges against the accused under sections 120-B, 323 and 342 of IPC. But subsequently the Magistrate allowed a protest petition filed by the mother and remanded the matter to the Sessions Court.

On January 3, 2018, the Sessions court remanded the matter back to the Magistrate’s court observing that the charge sheet revealed no human rights violation. It was this order that Shaikh’s mother Mehrunissa assailed in the present petition.

Advocate Yug Chaudhry for Shaikh argued that the Sessions Court’s order was contrary to law and the conduct of the officers was suspicious from the beginning. The CBI had wrongly dropped charges and the court failed to consider the JJ Hospital report, he argued. The post mortem hadn’t found intoxication as a cause of death, he pointed out.

Special Public Prosecutor Hiten Venegavkar relied heavily on the report from AIIMS and on the point of sanction under section 197 of the CrPC having come only for lesser offences.

The accused cops argued that the AIIMS report completely ruled out custodial torture. Moreover, the accused was an externee, they said. Subarachnoid haemorrhage could also be found due to intoxication, they argued.

Observations

The court noted that the Magistrate had taken several factors into account while committing the matter to the Sessions Court. It upheld the Magistrate’s observation that when there are two conflicting medical reports, at the prima facie stage, the opinion of doctors who have conducted the post mortem should be given precedence over the second opinion. The correct opinion can only be determined at the time of trial, it said.

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 material on record Court could come to the conclusion that commission of offence is probable consequence, a case for framing of charge exists.

“At 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 observed.

The court relied on statement of family members and neighbours, “The said statements prima facie shows that Respondents/Accused while taking the deceased in their custody assaulted him and dragged him to auto rickshaw and took him to the Police Station where he was detained.”

Lastly, the High Court said it was wrong for the Sessions Court to have appreciated the defence's evidence.

Relying on the judgement of S. P. Vaithianathan V/s. K. Shanmuganathan, the court said it is no part of duty under the Act, Code or any other law conferring power on the Police to beat and torture the suspect when he presented himself before the Police in response 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 the learned Sessions Judge/Special Judge has passed erroneous order while dealing with issue of framing charge and remitted the case back to the trial Court for prosecution of the Accused for offences under Sections 120-B r/w 323, 342 of IPC,” the court observed.

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

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

Citation: 2023 LiveLaw (Bom) 162

Click Here To Read/Download Order