Khwaja Yunus (File) The Bombay High Court Tuesday noted that the three names of lawyers suggested by petitioner Asiya Begum for the appointment of a special public prosecutor (SPP) for the trial of the alleged custodial death of her son Khwaja Yunus in 2003 have been taken by the state government in “a positive way”. However, the court said that that state in its wisdom can select a rightful candidate as the SPP even if he or she is not from the names suggested by the petitioner. The state said that it will make an appointment within two weeks.
A division bench of Justices Prasanna B Varale and Shriram M Modak was hearing a petition filed by Begum challenging the government’s decision to remove SPP Dhiraj Mirajkar, appointed to represent the state.
The court was told that the state had removed Mirajkar in September 2015 as he was unwilling to continue. On September 22 last year, senior advocate Mihir Desai, representing Begum, had said that Mirajkar was appointed as the SPP on September 2, 2015 but the state government revoked his appointment and removed him. The removal was prompted after Mirajkar moved a plea in the trial court seeking to make four more policemen stand trial. The government had earlier refused to sanction the prosecution of these officers.
Desai had submitted that the petitioner is fighting a legal battle to attain justice for nearly two decades and “despite stiff resistance from police and executive”, an FIR was filed in the matter due to the High Court’s intervention and an SPP was appointed. “As long as he was a police mouthpiece, it was fine (for prosecution) but as soon as he starts working independently, he is removed without assigning any reasons,” Desai had said.
On Tuesday, Desai told the bench that as per the court’s directive on March 22, three names of lawyers have been suggested by them to the state government for appointment as SPP in the case. Advocate General Ashutosh Kumbhakoni representing the state government said that the state would consider the suggestions and make an appointment within two weeks, which the bench accepted. However, the court said that it was the state’s discretion as to whether it wanted to appoint an advocate beyond the three suggested names if it feels him or her to be a rightful candidate.
“Looking at the larger picture, can the complainant ask for a particular advocate to be appointed SPP? 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 orally remarked.
The court also noted in its order that the state has taken names suggested by Begum in a “positive way.”
After advocate Subhash Jha, representing the four policemen, sought to intervene in Begum’s plea, the bench noted that the appointment of SPP does not adversely affect the intervenors and if required, it would hear Jha on the next date of hearing.
Yunus, a 27-year-old software engineer, was arrested in December 2002 for questioning in the Ghatkopar bomb blast case. He was last seen alive on January 6, 2003, when the others who had been arrested along with him said he was brutally assaulted in custody. The police have claimed Yunus had escaped from custody while being ferried by a team led by now dismissed police officer Sachin Waze but the CID found the claim to be false and filed a case against the four policemen who had accompanied Yunus.
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