A division bench of the Gujarat High Court on Friday ordered a magisterial probe in the alleged fake encounter of a man and his 14-year-old son in Surendranagar district of the State in November 2021.
The bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi asked the magistrate not to reject the application, to be made by the deceased man’s minor daughter Sohanaben Malek, on the ground of delay.
“The magistrate shall make an independent inquiry without being influenced by any of the previous inquiries conducted by magistrate or the DSP (district superintendent of police),” said the Chief Justice while disposing of a public interest litigation (PIL) filed by Ms. Malek.
The PIL sought registration of a First Information Report (FIR) against the policemen while saying that local police were not recording a complaint on the alleged fake encounter by the police. The petitioner’s father, Hanif Khan, and his 14-year-old son, Madin Khan, were killed in an alleged fake encounter by Bajana police in Surendranagar in 2021, the PIL said.
The plea said sub-inspector Virendrasinh Jadeja had shot the father-son duo outside their house. After the encounter, the police had claimed that Hanif was part of a gang of thieves and was facing 86 cases.
Appearing for the petitioner, senior advocate Yatin Oza told the court that police went to Hanif’s house in a private car purportedly to arrest him but shot him and his son dead. He added that an FIR for attempt to murder was registered against the deceased, while Ms. Malek’s complaint against the policemen was not taken.
“A magisterial inquiry was conducted, but a previous bench was not satisfied with it and ordered a probe through a DSP-rank officer. However, the DSP tried to cover up the accused policemen in his report,” Mr. Oza said.
The High Court noted that “no one can refuse to lodge a report (FIR)“. The family could have approached a magistrate under Section 156(3) of the Code of Criminal Procedure instead of directly approaching the High Court, the judges added. Under the provision, a magistrate can order police probe if he or she is satisfied that a complaint has some merit.
“Efforts to lodge an FIR about the fake encounter have not materialised. Without entering into the merits of the PIL, it has been disposed of with an observation that the petitioner is at liberty to approach the court of concerned magistrate by moving an application under section 156(3) of CrPC,” said the Chief Justice.
“The magistrate shall make necessary inquiry and do the needful in accordance with law. Delay in approaching the court shall not be a reason to reject the complaint,” the bench added.
