Police should have filed FIR in Badlapur encounter: Amicus to Bombay High Court

The Amicus Curiae appointed to assist the Bombay High Court in the Badlapur encounter case told the court on Monday that a first information report (FIR) should have been lodged by the police immediately after the custodial death of sexual assault accused Akshay Shinde came to light..Senior Advocate Manjula Rao, who is the Amicus, said that there was no justification for conducting a preliminary inquiry before registering the FIR, especially since a cognizable offense was involved.Shinde, an attendant at a private school in Badlapur, was arrested in August 2024 for allegedly sexually assaulting two kindergarten girls. On September 23, 2024, while being transported by police from Taloja prison to Kalyan in Thane district for questioning, he was allegedly killed in an encounter with the police. The police claimed that Shinde snatched a firearm from one of the officers, opened fire, and was killed in retaliatory shooting. However, a magisterial inquiry concluded that Shinde’s death was unnecessary and held five police officers responsible for his death..During the hearing on Monday, Rao informed a bench of Justice Revati Mohite Dere and Justice Neela Gokhale that an Accidental Death Report (ADR) was registered on September 24, 2024, the day after the encounter.On the same day, Shinde's parents submitted a written complaint to both the Director General of Police and the Thane Police Commissioner. Rao argued that after receiving the complaint, the State CID should have taken cognizance of the offence and filed an FIR.She stated that it’s unnecessary for the police to verify the genuineness of the information before filing an FIR, as long as it reveals a cognizable offence.“It is not necessary that the information received is genuine or legitimate for an FIR to be filed. An FIR is a document that commences the investigation. Merely registering an FIR does not mean the police must arrest the individuals involved immediately; they have discretion regarding whether to arrest or defer the arrest,” Rao said..She further emphasized that the police have no discretion in such cases.“When there is information on a cognizable offence, the police have no choice; it’s not their discretion. It’s mandatory for them to file an FIR. After the investigation is completed, they have discretion regarding whether to file a chargesheet or not,” she added.Rao also stressed that a preliminary inquiry was not necessary in this case.“It is not necessary for a preliminary inquiry in such cases. As soon as the cognizable offence came to its knowledge, it was mandatory for the police to file an FIR. If there is the slightest indication that the cause of death is not natural, an investigation has to be launched. Till date, there is nothing forthcoming regarding the letter filed by the parents. As soon as the state took over the investigation, the ADR, which revealed that it was a custodial death, should have been converted into an FIR,” she submitted.During in the previous hearing in the case, Special Public Prosecutor Amit Desai had argued that it was not necessary to file an FIR at this stage, as an independent investigation by the State CID is currently ongoing. He had further stated that the State would take the necessary recourse once the investigation reveals the commission of a cognizable offense and that an FIR cannot be filed solely on the basis of the magistrate's report.The Court will continue hearing the matter on Tuesday.