Mumbai: The state government has challenged before the Bombay High Court the order of the Thane sessions judge by which it kept “in abeyance” the findings of magistrate inquiry report implicating policemen in the death of accsued in the Badlapur sexual assault case. The State, however, remained non-committal on whether it would register an FIR against the policemen concerned based on the report.

Public Prosecutor Hiteen Venegaonkar informed a bench of Justices Revati Mohite-Dere and Neela Gokhale that they have filed an application before the HC challenging the February 21 order of the Thane sessions court keeping in abeyance the magistrate’s report questioning the legitimacy of the alleged encounter.

On a specific question by the bench on whether an FIR would be lodged against the five policemen based on the findings of the magistrate report, the State maintained that the observations in the magistraterial report cannot be a basis for an FIR.

Senior counsel Amit Desai, appearing for the government, said the an independent investigation is being conducted by the State Criminal Investigation Department (CID), in addition to a probe by an inquiry committee headed by retired judge of Allahabad HC, DB Bhosale. Hence, said that the State will wait for the conclusion of the CID probe before taking any decision.

“State believes that the investigation is ongoing and based upon it’s outcome, it will decide whether FIR is needed to be filed; or no cognisable offence is made and a closure report has to be filed,” Desai underlined.

Desai submitted that it can't be said that the magistrate’s report “constitutes as evidence to lodge an FIR”. “We are doing our bit and there is nothing to suggest that the investigating officers (of CID) are acting in a mala fide manner for the court to intervene,” he added.

The bench again pointedly asked whether the State proposes to lodge an FIR. “Once that the report has come, our question is whether it is incumbent on the state to register an FIR or not. Today, the question is whether the state proposes to lodge an FIR or not? Say yes or no,” the court asked.

Desai emphasised that the independent probe was on and at this stage it is not permissible for the court to order registering of an FIR based on the magistrate's inquiry report. The court will continue hearing the matter on March 10.

Last week, the HC had appointed senior advocate Manjula Rao as amicus curiae (friend of the court) to assist with the plea after Shinde’s parents expressed that they did not wish to pursue the case. Rao has been asked to assist the court on several issues, including whether an FIR ought to be registered by the State based on the magistrate’s report. The issue arose after the State argued that the magistrate’s report was only recommendatory.

The father had initially filed a petition claiming that his son was killed in a fake encounter.

Meanwhile, the State’s application against Thane sessions court order would be taken up for hearing after two weeks by Justice RN Laddha. The government has contended that the sessions judge order was “wrong, illegal and against the facts and circumstances of the case”. It contended that the sessions court had failed to consider the fact that the HC was seized of the matter related to the alleged encounter of the accused.

The HC had last week censured the sessions judge for the order.

Shinde had been arrested by the Badlapur police for allegedly sexually assaulting minor girls at a local school. While in judicial custody at Taloja Prison, he was taken into police custody on September 23 via a transfer warrant in connection with a second FIR lodged by his wife. However, during transit, he sustained firearm injuries and later succumbed.

The magistrate’s report, prepared on January 17, raised suspicion on the claims made by the five cops that they had to shoot at the accused in self-defence after he allegedly snatched a gun from them while being escorted. The magistrate noted the policemen, including two inspector-level officers, were in a position to control the situation and the use of force by them was not justified.