Badlapur case: Why no FIR when magistrate report indicted 5 cops for accused's death?, asks Bombay HC

Mumbai: The Bombay High Court has asked why a First Information Report (FIR) could not be lodged once it came to fore that five policemen were responsible for the death of an accused in Badlapur sexual assault case.

The Maharashtra government, on the other side, asserted it was already investigating the incident as an accidental death case.

A division bench of Justices Revati Mohite Dere and Neela Gokhale on Thursday reserved its order on the issue of whether an FIR ought to be lodged by the government, pursuant to an inquiry report submitted by a magistrate holding five policemen responsible for the death of the accused while in custody.

Senior counsel Amit Desai, appearing for the government, said the state is already carrying out an independent investigation, and that the government has also set up a commission under a retired Chief Justice of the Allahabad High Court for a probe into the incident.

The accused in the Badlapur sexual assault case, Akshay Shinde, was allegedly killed in a police shoot out in September last year, when he was being taken to Kalyan in Maharashtra's Thane district from the Taloja prison in Navi Mumbai.

He was arrested in August 2024 for allegedly sexually assaulting two minor girls inside the washroom of a school in Badlapur town of Thane district. He was an attendant at the school.

On September 23, 2024, he was killed in the alleged police shootout while being taken from the Taloja prison for questioning.

The escorting police team members claimed they shot at the accused in self-defence after he snatched a gun of one of them and opened fire.

Under provisions of the law which mandates a judicial probe into cases of custodial death, a magistrate conducted an inquiry and submitted the report to the HC.

In the report, the magistrate had said there was substance in the allegations made by the accused's father that it was a fake encounter, and also raised suspicion on the policemen's claims of self-defence.

The report had held five policemen responsible for the death of the accused.

Desai argued that after the incident, an accidental death report was lodged and the state Crime Investigation Department (CID) was conducting its investigation into Shinde's death.

The court then asked if an investigation could be carried out only on the basis of an accidental death report (ADR).

"We are concerned about the registration of FIR. Where is that? Is the ADR an FIR? We understand that initially ADR is lodged, but when subsequently it comes to fore that it was not an accidental or natural death but a homicidal death, shouldn't a FIR be lodged?" the bench queried.

The HC further asked what the CID proposes to do once its investigation is completed.

"Once the investigation is over, the CID will file its final report as per provisions of the Criminal Procedure Code. It could either be a closure report or a prosecution report (chargesheet)," Desai said.

Senior advocate Manjula Rao, appointed by the court for assistance, said once the magistrate report has been submitted stating that it was an unnatural death, an FIR ought to be registered.

The police had claimed Akshay Shinde snatched a gun of one of the police personnel in the van, opened fire, and was killed in the retaliatory firing.

He was shot at by senior inspector Sanjay Shinde. Assistant police inspector Nilesh More, two constables and the police driver were also present in the van at the time of the shootout.

The accused was being taken for questioning in connection with a case lodged against him by his wife.