Khwaja Yunus custodial death case: Prosecution to withdraw plea to try four policemen as accused

The prosecution informed a court on Wednesday that it will withdraw an application made by the previous prosecutor Dheeraj Mirajkar, who had been removed from the case, seeking to try four more policemen as accused in the custodial death case of software engineer Khwaja Yunus.

Controversial policeman Sachin Vaze, then an API with the Anti-Terrorism Squad (ATS) is a prime accused in the case along with three other constables. Yunus was arrested by the ATS team in connection with the 2002 Ghatkopar blast and allegedly died in custody due to assault and torture. The ATS team claimed in a FIR that he escaped from custody while being taken to Aurangabad for investigation.

Mirajkar has made the plea under section 319 of the Code of Criminal Procedure (CrPC) by which a court has powers to proceed against persons not named as accused, and proceed against them by joining them as accused in a case if evidence emerges during a trial against them.

The plea was based on the evidence of a doctor who was an eyewitness to the assault on 27-year-old Yunus and had testified in court regarding the same. He had also been arrested along with Yunus and later acquitted in the case. Mirajkar was removed from the case nearly two months after he made his plea. The state government did not grant sanction to prosecute these policemen.

The apex court had directed the trial court to decide the application on the basis of available material. On Wednesday, the new prosecutor appointed in the case argued that for the purpose of prosecuting the policemen, a sanction order is required, which is not available and that the competent authority has not granted sanction.

The court was told that the Bombay High Court has said that the order not granting sanction is correct. It was also argued that the four accused (including Khwaja) were produced before courts during remand but had not complained regarding assault. The trial court was also told that the prosecution is bound by the HC’s order. The court was told that if the HC says that the order not granting sanction is proper, then even during trial, if a witness names them, they cannot be joined as accused under section 319 of CrPC.