Bombay HC Directs Maharashtra DGP To Set Up SIT To Conduct A Fresh Investigation In Alleged Fake Encounter Case [Read Judgment]
The Bombay High Court has directed the Director General of Police, Maharashtra to set up a Special Investigation Team in order to conduct a fresh probe into the death of one Sham Athwale who suffered from 40% disability and was killed in an alleged fake encounter.
Police claimed that Athwale opened fire at them and so they had to fire back killing him in the process.
A division bench of Justice SS Shinde and Justice RV Avachat of Aurangabad allowed the criminal writ petition filed by the deceased's sister Aruna.
Aruna had sought transfer of investigation to the CBI or SIT for offences punishable under Sections 302, 304, 201, 120B, 326, 323, 506 read with Section 34 of the Indian Penal Code and allied offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
According to the petition, deceased was 40% disabled in his leg. Due to the disability, Sham was unable to walk without help of a stick. A couple of offences were registered against Sham and so the police personnel visited his house. As the deceased was not found a threat, the police personnel abused the wife and children of the deceased.
Thereafter, a complaint was registered against the police personnel. On December 14, 2014, the deceased along with his relatives, was on his way to Ahmednagar from Beed in a car. The car developed a snag. While the car was parked on the side of the road, near the village Dhondrai on Umapur road, all of a sudden, respondent nos.10 to 19 (police personnel) came there and surrounded the car.
Two of the accused policemen caught hold of the deceased and Assistant Police Inspector Rahul Deshpande fired bullets, resulting in Sham's death. It was a cold-blooded murder committed on the instructions of Police Inspector Champalal Shevgaon, the petition alleged.
The petitioner had immediately lodged a complaint to the Superintendent of Police on December 15, 2014, but to no avail. The police authorities showed it to be a case of encounter and false documents came to be prepared to suit their claim, the petition states.
In their affidavit, police had stated that they received a tip-off that the deceased, who was accused in a case, was staying in the Georai area. When the police personnel went to look for Sham, they learnt that the deceased was on Umapur road.
After finding the car, police claimed that they signalled the driver of Sham's car to stop but he did not. Then, the affidavit states-
"In the process of overtaking, the deceased opened fire towards the police personnel. One of the bullets struck the door of the police vehicle. The deceased was asked to surrender. He did not listen and instead, he started firing towards police party. In self-defence, respondent Rahul Deshpande, fired from his service revolver. As a result, the deceased sustained injury and failed down."
Petitioner's counsel RS Shinde submitted that there is a clear violation of the directions issued by the National Human Rights Commission. The petitioner had approached the concerned Police Station to lodge the FIR. Inaction on the part of the police officials compelled the petitioner to approach the Court of Judicial Magistrate, First Class, which, in turn, directed registration of an FIR.
Shinde cited apex court's decision in People's Union for Civil Liberties and anr. vs. State of Maharashtra and ors and Narmada Bai vs. State of Gujarat and ors.
After examining the submissions and both the above judgments, Court noted-
"There is quite a distinction between a fresh/ denuovo investigation and further investigation. In the case on hand, admittedly, the deceased died in police action. The officer-incharge of the police station appears to have refused to register the FIR sought to be lodged by the petitioner. It is only on the direction of learned Magistrate, issued under Section 156(3) of the Code, the FIR came to be registered.
The police officials (respondent nos.9 to 19) alleged to have been involved in the alleged fake encounter, were attached with Georai Police Station at the relevant time. The SubDivisional Police Officer, who investigated the FIR, had direct supervisory control over the police personnel attached to Georai police station. He, therefore, ought not to have entered into the investigation of the FIR."
The court observed that the fact that the investigating officer of the crime, is the superior officer of the accused in the case attached to the same police station is in direct conflict with directions issued by National Human Rights Commission and the Apex Court.
Thus, Court directed DGP, Maharashtra to set up an SIT to be led by a IPS officer of the rank of Superintendent of Police to conduct a fresh investigation.
Read the Judgment Here