Maha Police Ought To Have Registered FIR Against Errant Cops Based On Complaint By Badlapur 'Fake' Encounter Deceased's Parents: Amicus Tells Bombay HC

Senior Advocate Manjula Rao, who was appointed as an Amicus Curiae in the Badlapur Encounter Case, wherein the accused in the Badlapur Sexual Assault case was allegedly killed in a staged encounter, on Monday told the Bombay High Court that the State Police had no choice but to lodge a First Information Report (FIR) against the errant cops but they have not filed one yet.

Rao told a division bench of Justices Revati Mohite-Dere and Dr Neela Gokhale that on September 24, 2024, i.e a day after the alleged encounter itself, the parents of the deceased had written a letter to the Director General of Police (DGP), Commissioner of Police, Thane and the local Kalwa Police Station, raising suspicion over their son's death.

"A bare reading of the complaint or the letter written by the parents, reveals that a cognizable offence is alleged to have taken place...It must be noted that the State transferred probe in the case to the CID on September 25, so it is presumed that all the papers along with written complaint of parents must have been given to the CID... Therefore, based on the information received in the form of the letter, which disclosed cognizable offence, the police should have and ought to have had lodged a FIR," Rao told the judges. 

Since the instant one is a custodial death case, and a cognizable offence is made out prima facie, looking at the complaint, the State should have lodged an FIR but here the State proceeded with a 'preliminary enquiry' which is not mandated when a cognizable offence is made out, the senior counsel told the judges. 

"Till date there is no clarity as to what has happened to that complaint. The law is very clear, once you receive a complaint disclosing a cognizable offence, the police ought to register an FIR as it has no other choice or discretion. It is only after the FIR is lodged they can investigate the case. The police have powers to consider later whether it wants to file chargesheet or wants to close the case. But for filing an FIR it has no other choice but to report it," Rao emphasised. 

In her submissions, Rao explained that an FIR is a document which sets the criminal law in motion and it is only after an FIR's registration that the police can commence investigation to reach a logical end.

"Merely registering the FIR does not mean it is necessary to arrest the person against whom it is lodged and that such a person needs to be taken into custody. Police doe not enjoy discretion over losing an FIR but it has discretion on whether to arrest a person named in an FIR or not. They also have the power to either file the chargesheet or jus close the case. The State CID, as per the information given to this court, is conducting preliminary enquiry, but I fail to understand how can they do so especially when all the documents including the complaint of the parents has been handed over to the CID, why is the agency not lodging an FIR before conducting any enquiry into the matter," Rao argued. 

The senior advocate further said that the Accidental Death Report (ADR) lodged on September 23, 2024 moments after the alleged fake encounter, must have been converted into an FIR by the State CID. 

Notably, the State has maintained that it is conducting a preliminary inquiry into the matter and only after the same is completed it will register an FIR.

The law, Rao emphasised, says when there is a case of custodial death and a complaint disclosing a cognizable offence is made, the police cannot say no to lodge an FIR.

"The police cannot conduct a preliminary enquiry in such cases and instead must commence investigation only after lodging and FIR. The registration of FIR is mandatory...One complaint was also made to the local Kalwa police station by the parents yet there is no clarity as to what happened on it. There are various rulings of the Supreme Court that make it mandatory for filing FIR without conducting preliminary enquiry...The State CID should have and ought to have filed an FIR and commenced probe only then," Rao submitted. 

The senior counsel is likely to continue her submissions on Tuesday (March 11).