Bombay HC has a query on custody death victim's mother's plea

The Bombay high court on Tuesday sought to know if a complainant in a case can ask for a particular advocate to be appointed as a special public prosecutor in the case.

A division bench of Justices P B Varale and S M Modak was hearing a petition filed by Asiya Begum, mother of Khwaja Yunus, who was allegedly killed in custody, challenging the removal of the previous special public prosecutor Dhiraj Mirajkar from the case.

Four policemen, including dismissed police officer Sachin Waze, are facing trial in the case.

Begum had approached the high court in 2018 following Mirajkar's removal that year.

On Tuesday, Begum's lawyer Mihir Desai told the court that they had suggested the names of three lawyers to the state government for appointment as a special public prosecutor in the case.

Advocate General Ashutosh Kumbhakoni, appearing for the state government, told the court that the state government will consider the suggestions and make an appointment within two weeks.

The bench accepted this statement, but said it was open to the government also appointing a fourth advocate if it feels he or she is considered a rightful candidate.

"Looking at the larger picture, can the complainant ask for a particular advocate to be appointed as special public prosecutor? Your (complainant) look out is only that the case should be submitted to the trial court in a proper way and that the law officer does his duty to protect your interest," Justice Varale said.

The court in its order said that it is made clear that the three names suggested by the petitioner (Begum) was taken by the state government in a positive way.

"The state government in its wisdom and discretion can certainly select the rightful candidate as a special public prosecutor even if it is not any of the three names suggested (by the petitioner)," the court said.

In the plea, Begum claimed that the decision of removing Mirajkar came after he had filed an application before the trial court seeking summons to be issued to retired police officer Praful Bhosale and three other policemen and make them face trial on murder charges.

On Tuesday, advocate Subhash Jha, appearing for the four policemen, sought to intervene in Begum's plea.

The bench, however, noted that appointment of a special public prosecutor does not adversely affect these policemen, and stated that it would hear Jha on the next date.

Mirajkar had filed the application after key prosecution witness, Mohammed Abdul Mateen, had deposed before the court claiming that he had seen Bhosale, then assistant police inspector Hemant Desai and two other policemen assault Yunus in the police lock-up.

Yunus, a software engineer, was allegedly detained soon after the December 2002 Ghatkopar bomb blast case. He allegedly escaped from police custody in the intervening night of January 6-7, 2003, while being escorted to Aurangabad for further investigation when their jeep met with an accident near Ahmednagar.

Later, the crime investigation department lodged an FIR against police officers for allegedly killing Yunus in custody and then destroying evidence.

The CID inquiry indicted 14 policemen, but the government granted sanction to prosecute only four -- Waze, Rajendra Tiwari, Rajaram Nikam and Sunil Desai -- against whom the trial is being conducted. They are facing trial on the charges of murder, voluntarily causing grievous hurt to extort confession, fabricating evidence and criminal conspiracy in the case.