SYMBIOSIS LAW SCHOOL, NAGPUR

A Constituent of Symbiosis International (Deemed University),Pune

Assignment Submission Administrative

Law - Internal Examination IV Public Law Skills –

Internal Examination II

Drafting of Writ Petition

Name : Nandana Anil Nair

PRN 22010422001
Programme : BBA LLB
Division :C
Semester 5
Academic Year : 2024-25
Course Name : Administrative Law; Public Law Skills
Component : Writ Petition - Draft
Faculty Name : Mr. Jimmy Jose; Mr. Karun Sanjaya
 IN THE HON’BLE HIGH COURT OF BOMBAY

(CRIMINAL ORIGINAL JURISDICTION)

PUBLIC INTEREST LITIGATION WRIT PETITION (CRIMINAL) NO.____ OF

2024

((A Petition in the nature of Public Interest Litigation is filed under Article 226 of the
Constitution of India praying for a writ of Mandamus or any other appropriate writs seeking a
more efficient, fair and impartial investigation into the custodial death of Akshay Shinde and
persons like him in police custody and, also for establishing comprehensive guidelines for the
protection of such accused persons in custody to prevent such mishaps in the future)

IN THE MATTER OF:

1. Nandana Anil Nair

D/o Anil Kumar P
Age 21, R/o A-13
Kandhivilli
Mumbai, Maharashtra. 400035 ….petitioner

VERSUS

1. State of Maharashtra, Defence Ministry,

Through its defence secretary
Government of Maharashtra Mantralaya,
Mumbai – 400032

2. Director General of Police

Maharashtra Police Headquarters Colaba,
Mumbai – 400005

3. Commissioner of Police
 Thane City Police Commissionerate Court Naka,
Thane (W) – 400601

4. Superintendent of Police
Badlapur Police Station Badlapur,
Thane District - 421503 ….All the contesting respondents

A WRIT PETITION (CRIMNALl) IN THE NATURE OF A PUBLIC

INTEREST LITIGATION IS FILED UNDER ARTICLE 226 OF INDIA
PRAYING FOR A WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE
WRITS SEEKING A MORE EFFICIENT, FAIR, AND IMPARTIAL
INVESTIGATION INTO THE CUSTODIAL DEATH OF AKSHAY SHINDE
AND SUCH PERSONS LIKE HIM IN POLICE CUSTODY WHICH IS
CLEAR VIOLATION OF FUNDAMNETALN RIGHTS AND THE
PRINCIPLES OF NATURAL JUSTICE AND FOR ESTABLISHING
COMPREHENSIVE GUIDELINES FOR THE PROTECTION OF SUCH
PERSONS IN CUSTODY TO PREVENT FURTHER MISHAPS IN THE
FUTURE.

To,
The Hon’ble Chief Justice of Bombay High Court
And his companion Justices
Of the Bombay High Court

The writ petition of the

Petitioner above named

MOST RESPECTFULLY SHOWETH

1. The present Writ Petition in the nature of Public Interest Litigation is filed under
Article 226 of the Constitution of India by the Petitioner to enforce the
fundamental rights, majorly the Right to Life and Liberty which is provided under
 Article 21 of the Constitution of India by conducting a fair and impartial
investigation into the death of Akshay Shinde ( who’s death prompted such a writ
petition) and into the matter of past custodial deaths (at least the past 10 years),
since accused persons are to be treated with humanity too and has all the rights to
be safe and protected under the police custody. Further, the petition seeks the
establishment of adequate, necessary, and comprehensive guidelines to prevent
such unfortunate events in the future.

ARRAY OF PARTIES

2. The petitioner is a citizen of India, who is practicing as an advocate in the High

Court of Bombay and a regular member of the Bombay Bar Association. The
petitioner is meticulously aware about the Supreme Court of India’s judgments
and guidelines issued from time to time for the protection and safeguard of the
Fundamental rights of the citizens. The petitioner’s PAN card No. is
AHRPT678HU and e-mail address is nandanaanil003@gmail.com.

3. The Petitioner does not have any personal interest or private motive or any other
hidden reason in filing this Writ Petition in Public Interest. The Petitioner has not
been involved in any other civil or criminal or revenue litigation, that could have
any legal nexus with the issues involved in the present Petition. No similar
petition has been filed before this court or any High court or the Supreme Court of
India.

4. The respondent No.1 is the State of Maharashtra, represented by the secretary of

ministry of defence, which is the appropriate authority responsible for the policy
directions on defence and security related matters.
5. The Respondent No. 2 is the Director General of Police of Maharashtra, who is
the head of the police force of Maharashtra and the competent authority
responsible for the overall functioning of the force.

6. The respondent No.3 is the Thane city police commissioner, under whose
jurisdiction the encounter happened.

7. The respondent No.3 is the Bhadlpur police station superintendent since Badlapur
police had custody of the accused Akshay Shinde at the time of his death.

FACTS OF THE CASE

8. The deceased Akshay Shinde was the prime accused of sexually abusing two
kindergarten girls at a school in Maharashtra’s Badlapur. Shinde was working in a
school as a sweeper while being arrested on August 17 for sexually abusing two
girls, aged three and four, in the school toilet. Shinde was being taken to Badlapur
from Taloja jail in connection with a complaint filed by his former wife for
unnatural sex. That’s the time when he snatched the pistol from police inspector
Nilesh More and fired at the escorting police team, subsequently injuring three
police officers. Shinde was then killed in retaliatory firing by the police.
According to the autopsy report, Shinde was shot in the head due to which there
was loss of blood, and subsequently, he died due to bleeding when he was rushed
to the hospital. A panel of five doctors conducted the post-mortem of Shinde's
body for seven hours and videography was also done for the same. The Hon’ble
Bombay High Court has pulled up the Mumbai Police over the custodial death of
Akshay Shinde saying there appeared to be foul play and the incident could not be
"termed an encounter". The court has also directed the police to preserve the
CCTV footage from the time Shinde was brought out of jail till he was declared
dead at Shivaji Hospital. The father of the accused Anna Shinde has approached
 the special investigation team for the investigation of Akshay Shinde's death in the
encounter.

9. Such a custodial death is a concerning matter regarding the violation fundamental

right to life and liberty of the deceased and convicts, undertrials, or prisoners,
provided under Article 21 of the Indian constitution. The petitioner also humbly
submits serious doubts about the legitimacy of the encounter that has been alleged
and a request for a thorough investigation considering all the relevant pieces of
evidence revolving around the death of the accused.

10. The petitioner herself, being an advocate primarily focusing on human rights, is
very much aggrieved by the increasing number of custodial deaths and the rise in
concerns regarding the safety of accused persons under the custody of the police.

11. The petitioner is also highly concerned about the repetitive breach of the
constitutional rights of individuals in custody, by the unreasonable actions of the
police and there is an urgent need for intervention by the appropriate authority.

GROUNDS

A. The petitioner humbly submits that the custody death of the accused is a clear
violation of his fundamental rights, particularly Article 21 of the Indian constitution.
The term ‘life’ in Article 21 is interpreted as the right to live a dignified life and this
covers an assurance against any kind of physical and mental torture or assault from
the state. In D.K Basu v State of Bengal (1983), custodial death has been defined as
one of the worst crimes in a civilized society governed by the rule of law. The
Supreme Court had laid down several times in adherence to Article 21 that, a person
legally detained shall be treated with dignity. No matter how heinous the crime
committed by any accused person is, it’s their right to be treated with a standard
dignity. In the backdrop of this particular case, though the deceased was accused of
brutal crimes involving the sexual abuse of two minor girls, he’s still entitled to enjoy
the fundamental rights as a person and a citizen of India.
B. The custodial deaths are not just violative of Article 21 but Article 14 of the Indian
constitution as well, since it violates the presumption of innocence until proven guilty.
No individual shall be deprived of their life without the necessary process of law and
every accused person has the right to a fair trial, before being judged guilty. This also
amounts to the violation of the principles of natural justice since custodial deaths are
an undisguised breach of principles such as audi alteram partem which means hear
the other side and Nemo judex in causa sua which translates to no one should be a
judge on his own case since the deceased persons are not provided with reasonable
opportunities for subjecting for adequate judicial adjudication.

C. The primary aim of the criminal justice system is to regulate the law and order of
society. The police have also been granted with adequate power and rights to do the
same. But as emphasized in the case of Prem Chand v Union of India (1980), by J.
Krishna Iyer, “who’ll police the police”. In the recent data of 2021-2022, there is a
total of 175 cases of custodial death, which is almost 75% more than the previous
year. The Supreme Court has always taken a positive ground against the atrocities and
harassment of the police while exercising the power granted to them. The apex court
has further described the police torture as ‘disastrous to our human rights awareness
and humanist constitutional orders’.. In the landmark judgment of Yashwant and
others v State of Maharashtra (2018) the Hon’ble High Court of Bombay sentenced
three years of imprisonment for nine police officers who were involved in the
custodial death of a person in 1993, and this decision was upheld by the supreme
court and extended it to seven years of imprisonment.

D. It is to be looked upon that the Supreme Court in D.K Basu v State of Bihar, the
Supreme Court has looked upon the questions of custodial deaths and the questions
regarding how the family of the deceased should be compensated. It was held in this
case by the apex court that in addition to private law remedies, compensation can be
granted under public law for the violation of fundamental rights, through High courts
and the Supreme Court. It has been also held in Rudul Shah v State of Bihar that, the
state is liable to compensate the victim in any case of breach of fundamental rights.
Further, in the case of Nilabati Behera v State of Orissa (1993), the Supreme Court
has emphasized that it is unquestionable that convicts, undertrials, or prisoners are not
 deprived of their fundamental rights enshrined under Article 21, and only reasonable
restrictions are what could be imposed on enjoying such rights under Article 21 by
such persons.

E. The repetitive events of custodial deaths and custodial mishaps reduce the
accountability of the state on the law-abiding citizens of the country. This seeks a
need for a thorough investigation of the “encounter” as well as the subsequent events
that led to the death of Akshay Shinde. It is almost a nullified effect if the same
authority responsible for the death of the person is the authority that investigates the
matter and might as well give rise to a subject matter bias. In the factual background
of this particular case, the Hon’ble Bombay High Court has already pulled the
Mumbai police, regarding the legitimacy of the whole encounter that led to the death
of the deceased. This in itself draws a need for a special investigation.

Further, it has been laid down in PUCL v State of Maharashtra (2014) that,
“An independent investigation into the incident/encounter shall be conducted by the
CID or police team of another police station under the supervision of a senior
officer.” Hence, it is to be taken into serious consideration that in case of such
custodial death, to ensure a transparent and impartial investigation, it should be either
investigated by a special investigation team or, external agencies like the Central
Bureau of Investigation (CBI) or the National Human Rights Commission should
intervene or completely take over such investigations (NHRC).

PRAYER

In the facts and circumstances mentioned above, it is most respectfully prayed that
this Hon’ble Court may graciously be pleased to:

i. Issue a writ of mandamus or any other appropriate writ/directions directing the

respondents to conduct an impartial and thorough investigation, not limited to
the death of Akshay Shinde, but the custodial deaths that have happened in the
past 10 years, and a report regarding the same before the Hon’ble High Court.
Provided that, this investigation shall be conducted by either a special
 investigation team or an external agency, such as the Central Bureau of
Investigation (CBI), or under the intervention of the National Human Rights
Commission (NHRC)

ii. Direct the respondents for the establishment of necessary guidelines for the
protection of persons in police custody for safeguarding their fundamental
rights from being violated and also to prevent the increase in the number of
custodial deaths in the future and to slowly eradicate such mishaps.

iii. Direct the state to frame accurate provisions for providing compensation to the
families of such individuals who are victimized to such custodial deaths

Pass any other appropriate relief that this Hon’ble Court may think
would uphold and protect the rights of the persons in custody.

FOR THIS ACT OF KINDNESS THE PETITIONER/APPLICANT

HEREIN AS IN DUTY BOUND SHALL EVER PRAY.
DRAWN ON- 01.10.2024
FILED ON – 06.10.2024

DRAWN BY
FILED BY

Nandana Anil Nair (Advocate of High Court of Bombay)

(sign)
D/o Anil Kumar P Age 51, R/o A-13
Kandhivilli
Mumbai, Maharashtra. 400035

nandanaanil003@gmail.com

PETITIONER IN PERSON