One more try for justice: Khwaja Yunus’ mother moves to Bombay High Court again

Khwaja Yunus was said to have gone ‘missing’ from police custody in January 2003 (left). His mother Asiya Begum. File pics

Unwilling to give up the struggle for justice for her 27-year-old son Khwaja Yunus, whose body she never saw after he allegedly "disappeared" from police custody, 74-year-old Asiya Begum has approached the Bombay High Court for the umpteenth time. This time, it is with a plea to set aside the trial court's order of September 7, 2022.

That order put the four policemen named by an eyewitness as having tortured her son till he collapsed, out of the purview of the ongoing trial in the Khwaja Yunus custodial death matter. Currently four policemen, including Sachin Waze, are on trial for murder of the software engineer from Parbhani. These four were the last to be seen with him.

The Sessions Court order allowed the Special Public Prosecutor to withdraw an application to include the four policemen named by the eyewitness as additional accused. It also rejected Asiya Begum's application against this withdrawal, saying that as a private person, she could only act through the PP.

Asiya Begum's petition filed in the High Court on Sunday by advocate Chetan Mali, faults the Sessions Court order on both these points. It points out that the Sessions Court had "knowingly disregarded" a January 2022 Supreme Court order directing it to hear on merits the application asking that the four cops named by the eyewitness be made additional accused. As such it was "bad in law".

Also Read: Khwaja Yunus custodial death: Ex-special public prosecutor questions state govt's motive

The petition also points out that courts have allowed victims to intervene in cases involving them.

What transpired

How did this controversial application come to be made?

The very first witness to depose in the trial, a medical doctor and like Yunus, an accused in the same case, had recounted how four cops had assaulted Yunus till he collapsed. He was never seen alive again. The witness was acquitted in 2005 with seven other co-accused.

Immediately thereafter, then Special PP Dhiraj Mirajkar moved an application that these four policemen named by the eyewitness be made additional accused. Within weeks, Mirajkar was removed as Special PP.

When Asiya Begum moved the High Court for his reinstatement, he placed on record through her lawyer, the state government's disapproval of his application, and their advice to him to withdraw it. In the light of this, Mirajkar expressed his unwillingness to return as PP.

The government then appointed Pradip Gharat as Special PP. The very first move by the new Special PP was a plea to withdraw Mirajkar's application. He argued that the Bombay High Court had upheld the Maharashtra government's decision to sanction prosecution of only four of the 14 policemen indicted by the CID for Khwaja Yunus' death, and hence the Sessions Court was bound by it until the plea against it pending in the Supreme Court was decided.

SC's take pointed out

However, Asiya Begum's counter to the withdrawal plea pointed out that the Supreme Court had said that the application could be decided on merits without waiting for its decision on the matter of prosecuting all 14 policemen.

Her petition in the High Court argues, "The learned judge failed to appreciate that a court has no power to ignore ‘evidence' presented before it, clearly showing commission of offence… it is the duty of the court to take cognisance as and when it appears from the evidence that any person, not being accused, has committed any offence for which such person could be tried along with the accused."

In what could be called a summing up of the 20-year-old history of Asiya Begum's struggle, the petition states, "in the present case, it is the victim who has been more concerned with justice than the state."