PUCL MAHARASHTRA STATEMENT CONDEMNING THE EXTRAJUDICIAL KILLING BY THE MAHARASHTRA POLICE OF THE ACCUSED AKSHAY SHINDE IN THE BADLAPUR SEXUAL ASSAULTS CASE
Tags: Badlapur, Sexual Assault, Encounter, Murder, Accused
Related Issue: Right to Life, Right to Legal Representation
This incident signals a dangerous trend of extrajudicial executions in Maharashtra that civil society and justice-oriented public have fought hard against!
PUCL Maharashtra expresses serious concern over the extrajudicial killing of Akshay Shinde being the accused in the Badlapur sexual assaults case, at the hands of the Maharashtra police on the evening of September 23, 2024. While the Maharashtra government has on October 2, 2024 appointed a judicial commission to investigate the case even as the Bombay High Court was seized of the matter, considering the serious issues that the case has brought up which are set out below, PUCL Maharashtra states that it is pertinent that the investigation be conducted through a court-appointed Special Investigation Team (SIT) under court supervision, to enable a fair and independent investigation in the case with a view to ascertain the truth and secure strong evidence, and ensure accountability and justice.
Details of the incident and investigation : concerns
As per newspaper reports, the 24-year old Akshay Shinde, accused in the Badlapur sexual assaults case, was being escorted by a 10-member police team from Taloja jail on the date of the incident, for questioning in connection with another FIR filed against him. 4 members of the team were sitting next to him in the police vehicle, when upon reaching Mumbra Bypass, the accused allegedly snatched the pistol of assistant police inspector Nilesh More and fired three rounds at him, one of which hit his thigh. In response, Senior Inspector Sanjay Shinde fired one round at the accused thereby shooting his head and leading to his death.
A contractual sweeper, the deceased Akshay Shinde was arrested on August 17, 2024 in the case 5 days after the incident for allegedly sexually assaulting two minor girls, 3 and 4 years old, at a school in Badlapur. While the Badlapur sexual assaults case raises serious concerns which requires thorough investigation and prosecution of all involved in this heinous crime to ensure justice to the survivors, the extrajudicial killing of Akshay Shinde at the hands of police officers from the Crime Branch, Thane, comes as a shock. More so since the case had evoked enormous public outrage, with critical issues on accountability in cases of violence against women and girls being raised from civil society, women’s groups and political opposition, on account of the mishandling of the case by the police and state government.
Not only did the police delay the filing of the FIR and the medical examination of the victims in the Badlapur sexual assaults case, but the school run by Tushar Apte – reportedly a BJP president of the public welfare committee of Ambarnath, was accused of attempting to brush the case under the carpet. It is following large-scale public protest on August 20, 2024 following the inaction by the police and school authorities, which drew media attention, that action was taken in respect of the negligent failure of the authorities in the Badlapur sexual assaults case and an SIT was appointed to investigate the Badlapur sexual assaults case. Three police officers were suspended for dereliction of duty, meanwhile the principal and two other staffers at the school were suspended. The names of the secretary and president of the Trust which runs the school, Tushar Apte and Uday Kotwal, and that of the principal Archana Athavale were subsequently added to the FIR. The mismanagement of the case led to multiple protests in the city, with demands being made by some protestors and family for death penalty to the accused if found guilty. Meanwhile in an entirely uncalled-for statement, Chief Minister Eknath Shinde, the head of the Shiv Sena – BJP ruling alliance government in the State, responded at this critical time by citing a case in Pune where a rape accused had been given death penalty by court in 2 months.
With such heightened public sentiment around this case and the allegations of mishandling of the Badlapur sexual assaults case by the authorities, ostensibly on account of involvement of BJP members running the school, the extrajudicial killing of the accused Akshay Shinde on September 23, 2024 by way of a single gun shot to his head by Crime Branch police officer Sanjay Shinde, who reportedly has a track record of misconduct, raises several critical questions. It is appalling to note that following the death of Akshay Shinde in police action, the Chief Minister Eknath Shinde and Home Minister Devendra Fadnavis, came out in support of the police action and backed the claim of “retaliatory firing” of the police, even pending investigation into the incident, and party workers of the ruling party even put out hoardings applauding the police for the execution.
Meanwhile, immediately after the incident, the father of the deceased approached the Bombay High Court alleging that the accused was murdered in a fake encounter conducted by the police, in order to shield the real conspirators behind the Badlapur sexual assaults case. They have sought registration of First Information Report (FIR) on the basis of the deceased’s father’s complaint and court-monitored investigation by an SIT into the extrajudicial killing of the deceased Akshay Shinde, in light of the suspicious circumstances of his death.
At the hearing held before the Bombay High Court on September 25, 2024, the court posed important questions on the incident and the timeline of events. The court questioned the decision of the police officer to shoot the accused in the head and no attempt being made to overpower the accused inspite of 4 trained police officers being present. The court also questioned the removal of the accused’s handcuffs and the police case that the accused snatched and shot from the officer’s service pistol, pointing out that a lay person would not have training and knowledge on how to remove the pistol from the holster, unlock and shoot. The court directed the police to take handwash and fingerprints of the deceased and also the handwash, fingerprints and Call Detail Records (CDR) of the 4 police officers and driver. The police also inquired on seizure of the vehicle, forensic investigation of the firearm and bullet, and directed collection of CCTV footage from the time the accused left his barrack till he was taken to hospital. The court also made inquiries on the investigation being transferred from the Crime Branch, Thane to State Criminal Investigation Department (CID) on September 24, 2024 and questioned why the Crime Branch was presenting the case in court and still conducting the investigation. The court questioned the police about the magisterial inquiry in the case, reporting of the incident to the Human Rights Commission and the videography of the inquest and postmortem of the deceased. The court directed that the photocopy of the papers of investigation be submitted to the court and adjourned the matter to October 3, 2024 for the Public Prosecutor to take instructions on registration of FIR on the basis of the complaint of the deceased’s father. Following an application made by the deceased’s father that they were unable to find burial site on account of public opposition, the Bombay High Court on September 27, 2024 directed the police to find a secluded burial site for the deceased Akshay Shinde. Pursuant to the same the deceased was buried at the Shanti Nagar crematorium in Ulhasnagar, Thane district amid police security on September 29, 2024.
Meanwhile on October 2, 2024, a day before the hearing fixed by the Bombay High Court, the State government has passed a decision to constitute a Judicial Commission headed by Retd. Justice Dilip Bhosale, former Chief Justice of the Allahabad High Court to investigate into the extrajudicial killing of Akshay Shinde. The Notification issued by the Home Department of the Government of Maharashtra provides, “It is necessary to inquire into the exact sequence of the said incidents, causes thereof and the person or organization, if any, responsible for the same and the role of the police machinery during the said incident, and also to identify the measures to prevent recurrence of such incident through a Commission appointed under section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952)”. The terms of reference of the Commission states, “Whether any individual or group of individuals or organisation, if any, was seen directly or indirectly responsible for said incident; Whether the steps taken by the police in handling the aforesaid situation were appropriate; Conduct a detailed examination of all the related aspects and events of the above incident; Conduct an inquiry into all other issues related to this incident provided by the State Government.” The Commission has also been mandated to suggest short term and long term measures to be taken by the Police in order to avoid reoccurrence of such incident. The Commission is required to conduct inquiry and submit its report within 3 months.
The matter came up before the Bombay High Court on October 3, 2024, when the court once again raised queries on the incident and directed an expedited magisterial inquiry into the killing of Badlapur sexual assault accused Akshay Shinde and submission of the inquiry report on the next date of hearing i.e. November 18, 2024. The court stated that it will pass order in the petition of the deceased’s father pursuant to the report of the magisterial inquiry mandated under law.
Extrajudicial killings – Death of the Rule of law
PUCL expresses serious concerns in what appears to be a case of extra judicial killing of an accused in police custody. In any case, under the existing provisions of law, a death in police custody and during police action is a serious matter which warrants thorough investigation. When examined in the context of the pre-existing public outrage and political controversy in the Badlapur sexual assaults case and the alleged connection of the other accused with the ruling party, the possibility that there is more than meets the eye cannot be ruled out. The suspicious circumstances of the sudden encounter death of the accused even as the Chargesheet in the matter had been filed days before on September 20, 2024, calls for a fair and independent investigation.
Extrajudicial killings represent a failure on the part of the state to ensure justice. It is a violation of right to life under Article 21 of the Indian Constitution. This kind of summary (in)justice without fair trial or ascertaining the guilt of the accused, is antithetic to the rule of law and disservice to justice itself, and cannot be allowed. It not only constitutes an unlawful execution by the state, but also undermines the credibility of the criminal justice system of the country. In the instant case, with the other accused absconding and further investigation against them pending, the truth could stand effectively compromised with the extrajudicial killing of the accused, before any conspiracy or role of the other accused being unearthed and pending commencement of trial.
The gravity of extrajudicial killings and the role it can play to compromise the legal system, has been recognised under international law and also by the courts in India. Provision for inquiry in such cases is provided under Section 196 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Section 176 of the Criminal Procedure Code, 1973). In 2010, being concerned about extrajudicial killings and noting that an encounter death caused in police action that cannot be justified would amount to culpable homicide, the National Human Rights Commission (NHRC) issued guidelines providing procedures to be followed in cases of deaths caused in police action. The guidelines mandate the registration of FIR, conducting of investigation by investigating agency independent of the accused police officers, magisterial inquiry etc. The NHRC has also issued guidelines regarding conducting of magisterial inquiry and videography of post mortem in such cases. In the matter of PUCL vs. State of Maharashtra (2014), the Supreme Court formulated guidelines to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation.
Relying upon the law laid down by the Supreme Court in the PUCL case (supra) and the findings of the full bench of the Madras High Court in the case of T. Balaji & Anr. vs The State and Anr. (2022), the Madras High Court in a judgment delivered on September 27, 2024 in the case of A. Guruvammal vs. The Commissioner of Police & Anr. pertaining to an alleged extrajudicial killing, observed that an FIR of the family can be lodged when the subsequent information is a rival version/counter case. While expressing its anguish on extra-legal police action, the court also observed that, “The immediate society affected by the particular offense committed by the accused starts applauding such killings without realizing that the same is a fundamental wrong and retrograde thinking. … The same has to be taken seriously note of and thoroughly investigated because : (a) it tends to point out the lack of faith of the law enforcing agency in the Rule of Law, Constitutional Rights and Protection, and the Criminal Justice System; (b) it reminisces the colonial past of the agency that was constituted by the British under the Indian Police Act, 1861 and is an affront on democracy; (c) the means shall be as legal as the end; (d) the belief that instant death is an appropriate punishment and it has a deterrent effect are only myths and not the truth.”
Accordingly, it is pertinent an FIR be registered on the basis of the complaint of the deceased’s family to ensure fair investigation based on their version of facts and not just the police version. Further, the investigation should be carried out under the supervision of the court by a court-appointed SIT, outside of the influence of the Crime Branch and the State. In light of the fact that in the crucial period between September 23, 2024 and September 25, 2024, evidence in the matter was collected by the Crime Branch, being the same agency of which officers are accused of the extrajudicial killing, before handing it over to the State CID to whom the investigation was transferred by the government, the integrity of the investigation is already under threat. It is pertinent to conduct proper collection of evidence by the SIT, to ensure that the evidence is not lost, tampered or compromised in any manner. Without an independent investigation, there is little hope that the truth of the encounter death will be ascertained, and justice will be delivered.
As per a latest newspaper report in the Indian Express, this is the fifth case of custodial killing in Maharashtra in one year and from April 1, 2018 to March 31, 2023 of the 687 people who died in police custody across the country, 80 were in Maharashtra, making it the state with the second highest number of custodial deaths. PUCL Maharashtra reiterates that extra judicial killings are the ultimate death of justice and cannot be allowed in our state. The instant case needs to be dealt with seriously and the police and all those found responsible held accountable in the event of this being a fake encounter. Failure to ensure this, will only lead to unbridled state power and impunity to the police to commit such crimes and consequently, the loss of faith of the people in the legal administration.
PUCL Maharashtra, hence, demands that:
- An FIR be registered on the basis of the complaint of the deceased’s family in the extrajudicial killing of Akshay Shinde, accused in the Badlapur sexual assaults case. A Special Investigation Team be appointed by the court to investigate the case. The investigation be court monitored and timely reports of investigation be submitted to the court to ensure that the case is investigated fairly, thoroughly and without any external influence, keeping in mind that the police officers involved are from the Crime Branch. Ensure that all evidence is collected impartially and the case is prosecuted effectively.
- The investigation must also inquire into the Badlapur sexual assaults case, to rule out any conspiracy to cover up that case, and to explore its connection to the extrajudicial killing in terms of the allegations made by the family of the deceased, the revelations post the encounter that raise suspicions on the circumstances in which the incident occurred and questions concerning the police officers involved in the incident. A fair and proper investigation is necessitated in the Badlapur sexual assaults case in order to ensure justice to the minor survivors.
- The case be tried expeditiously to ensure justice. Protection be provided to the witnesses and safety of the family of the deceased Akshay Shinde be ensured.
- Ensure full compliance of the Supreme Court guidelines on extra-judicial killings in the case of PUCL vs State of Maharashtra (2014), the NHRC guidelines and the letter of law.
- The state government must take serious efforts to ensure that extrajudicial killings do not occur in our State and that the rule of law is upheld and justice is ensured for all.
Mihir Desai, President
Lara Jesani, General Secretary