The Bombay High Court was told on Tuesday that the magistrate’s report was sufficient for the State CID to register an offence in the encounter of a Badlapur sexual assault accused since the report disclosed a cognisable offence. However, the magistrate should have only examined the cause of Akshay Shinde’s death and “should not have pointed fingers at A, B, C.”

The submissions were made by senior advocate Manjula Rao, who was appointed as amicus curiae (friend of the court) to assist on legal issues. The state had contended that the magistrate’s report was merely recommendatory.

Rao emphasised that the State ought to have registered an FIR in the case based on the magistrate’s report, which pointed out that Shinde’s death was “suspicious.” Once the police are informed about a cognisable offence, it is mandatory for them to lodge an FIR.

A bench of Justices Revati Mohite-Dere and Neela Gokhale had appointed Rao after Shinde’s parents expressed unwillingness to pursue the case.

However, Rao agreed with the State’s argument that the magistrate’s role was only to determine the cause of death and not to place blame on anyone. “The magistrate only has to determine the cause of death. He does not have the power to point fingers at A, B, or C. One should ignore that,” Rao said, adding: “The magistrate’s report should be considered only to the extent of the cause of death. The police can suo motu register an FIR and conduct an investigation.”

The bench asked what would happen if the complainant or informant wished to withdraw the case. “What happens when the petitioner says he does not want to pursue the case? The statement of the petitioner or complainant will have to be recorded (for registering the FIR),” the bench observed.

Rao replied that even if the informant withdraws, the police can still lodge an FIR based on the information received and proceed with the investigation. “The police, on the basis of the information they have, can and should register an FIR,” she added.

The five policemen who were found responsible for Shinde’s death had approached the sessions judge in Thane, who kept the findings in the report— to the extent that they indicted the policemen— at abeyance.

Rao pointed out that the State has challenged the sessions court’s order before the High Court, which indicates that it also believes an FIR ought to have been registered. “They (State) just need to make their stand clear. They also feel they should have, ought to, or will register an FIR,” Rao stated.

The judges raised a query about whether the magistrate, under whose judicial custody Shinde was, was apprised of the death and whether that could be treated as information regarding a cognisable offence.

The State has contended that the Criminal Investigation Department (CID) is simultaneously probing the case and that the government has also appointed a commission of inquiry. It stated that it would wait for the completion of these probes and their conclusions before deciding on filing the FIR.

Rao replied that the CID ought to first register an FIR and then proceed with the investigation. “Just as they say the magistrate’s report is not binding, neither is the commission’s report— as we have seen in the Srikrishna Commission report (which probed the 1992 riots in the city that broke out after the Babri Masjid demolition),” Rao underlined.

State counsel Amit Desai will respond to Rao’s arguments on Wednesday, March 12.