Maharashtra Vs. Farook Mohammed Kasim Mapkar & Ors.  INSC 570 (30 July
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1376
OF 2010 (Arising out of S.L.P. (Crl.) No. 6477 of 2009) The State of
Maharashtra .... Appellant (s) Versus Farook Mohammed Kasim Mapkar & Ors.
This appeal is directed against the final judgment and order dated
18.12.2008 passed by the High Court of Judicature at Bombay in Criminal Writ
Petition No. 1437 of 2007 whereby the High Court directed the State of Maharashtra
to handover the complaint of Farook Mohammed Kasim Mapkar-Respondent No. 1
herein dated 1 28.08.2006 to the Central Bureau of Investigation (in short `the
CBI'), to register a case in respect of the incident dated 10.01.1993 near Hari
Masjid, Mumbai, and to investigate the same.
After the demolition of Babri Masjid on 06.12.1992, communal riots
occurred in various parts of the country including Mumbai. At the material
time, Respondent No.2 was the PSI attached to R.A.K. Marg Police Station, Bombay.
On 10.01.1993, Respondent No.2 and his staff, while on patrol duty, received a
message from Wireless Control Room that a mob of 2000 to 2500 people armed with
deadly weapons is resorting to rioting and arson near Hari Masjid, Sewree,
No. 2 rushed to the site and found that the mob had become violent and
destroying vehicles and other properties and setting up fire at the slum
colonies in the nearby areas. Mr. K.L. Bishnoi, Dy. Commissioner of Police -
Zone III, also arrived at the site and tried to 2 control the mob in order to
restore peace. However, the mob turned more violent and even started attacking
the police by resorting to firing from the side of Hari Masjid.
in order to maintain law and order and to save innocent people, Mr. K.L.
Bishnoi, Dy. Commissioner of Police, ordered Respondent No.2 to open fire. In
obedience to the orders of the superior Police Officer, Respondent No. 2 and
his staff opened fire which resulted in the death of six persons. In respect of
the said incident, F.I.R. came to be lodged on 10.01.1993 bearing C.R. No. 17
of 1993 under Sections 143 to 149, 151, 153(B) and 307 of the Indian Penal Code
read with Sections 3 and 25 of the Arms Act and under Section 37(i) of the
Bombay Police Act at the R.A.K. Marg Police Station against 50 accused persons
and about 2000-2400 unknown wanted accused persons and Respondent No.1 was
specifically named in the F.I.R. In the year 1994, after completion of the
investigation, charge sheet came to 3 be filed before the Competent Court. As
far as Respondent No.1 is concerned, the trial against him was separated by the
Additional Sessions Court by order dated 05.08.2005. The trial of other six
accused was also separated. The 11th Ad-hoc Additional Sessions Judge at Sewree,
Mumbai, conducted trial and by order dated 04.02.2006 acquitted 22 accused
persons. On 05.08.2006, Respondent No.1 filed a complaint with R.A.K. Marg
Police Station and sought registration of FIR against Respondent No.2 and other
police officers in respect of the Hari Masjid incident and the same was entered
into Police Station record vide Toorant Application Register at S.No. 263/06
dated 05.08.2006. On 14.09.2006 and 04.10.2006, the advocate of Respondent No.1
sent two letters to the police station in connection with the registration of
F.I.R. In October, 2006, Respondent No.1 was requested on two different
occasions to attend the police station with a view to record his 4 statement,
however, he informed telephonically that the letters sent by his advocate dated
14.09.2006 and 04.10.2006 may be treated as his statement and F.I.R.
25.10.2006, Respondent No.2 was called and his statement was recorded. On
09.07.2007, the Additional Sessions Judge directed the I.O. to submit a
separate charge sheet against Respondent No.1 as the trial of Respondent No.1
was separated by earlier order dated 05.08.2005. On 01.08.2007, Respondent No.1
filed Criminal Writ Petition No. 1437 of 2007 before the High Court of Bombay
and sought a writ of mandamus directing the Government to prosecute Respondent
No.2. By the impugned order dated 18.12.2008, the High Court allowed the writ
petition by treating the writ petition as public interest litigation and
directed the CBI to register the case and investigate the said incident.
Challenging the said order, the State of Maharashtra filed this appeal by way
of special leave.
Heard Mr. Shekhar Naphade, learned senior counsel for the State of
Maharashtra, Mr. Colin Gonsalves, learned senior counsel for the Respondent No.
1 herein (writ petitioner) and Mr. Mohan Jain, learned Additional Solicitor
General for CBI-Respondent No. 3.
Main grievance of the State of Maharashtra with regard to
entrusting the investigation to CBI are as follows:- (i) Since, this Court has
seized the matter in issue by entertaining two writ petitions under Article 32
and pending decision, the High Court ought not to have exercised jurisdiction
under Article 226.
State of Maharashtra itself constituted Special Task Force (STF) and proceeded
with the investigation.
When adequate remedy is available under the Code of Criminal Procedure
(hereinafter referred to as `the Code'), writ petition under Article 226 before
the High Court is not the 6 proper remedy and the High Court ought not to have
entertained the same.
As against the above submissions, Mr. Mohan Jain, learned
Additional Solicitor General, appearing for the CBI and Mr. Gonsalves, learned
senior counsel for the Respondent No. 1 herein submitted that after considering
the extraordinary circumstance, utmost public importance as well as the conduct
of the State in showing leniency towards their police officers, particularly in
favour of Respondent No. 2, the High Court is justified in issuing appropriate
direction in writ petition filed by Respondent No.1 who made a complaint in
respect of the incident that took place on 10.01.1993 near Hari Masjid at
Mumbai. They also submitted that the writ petitions under Article 32 pending
before this Court relate to implementation of the Srikrishna Commission Report
and there is no bar for entertaining a writ petition in respect of the specific
grievance of the Respondent No. 1 about the conduct of the Special Task 7 Force
(STF),particularly, the highhanded action of its police officers. Even otherwise,
according to them, the writ petition came to be filed in the High Court of
Bombay on 01.08.2007 whereas the writ petitions were filed in this Court after
a year in 2008 that too not by the Respondent No. 1 but by NGOs.
both the counsel submitted that inasmuch as the Government of Maharashtra
itself by notification dated 07.02.2008 consented to the exercise of the powers
and jurisdiction of the members of Delhi Special Police establishment (CBI) for
inquiry into the said incident relating to Hari Masjid incident, the State is
not justified in challenging the order of the High Court.
We have carefully considered the rival contentions and perused the
With regard to the first objection of the State of Maharashtra about
the propriety of the High Court in exercising jurisdiction under Article 226
when the same matter was seized by this Court in a petition under Article 8 32,
first of all, it is to be noted that the writ petition came to be filed before
the High Court of Bombay by Respondent No. 1 herein in 2007. On the other hand,
in their reply filed by the State of Maharashtra through their officer, Shri
D.T. Shinde, Deputy Commissioner of Police, , Detection-I, Crime Branch,
Mumbai, on 18.09.2007, wherein it was stated that after Srikrishna Commission's
Report two writ petitions came to be filed in the Supreme Court. The said
affidavit further shows that both were filed by NGOs, namely, W.P. No. 527 of
1998 was filed by Action Taken Committee for the implementation of Srikrishna
Commission Report and the second W.P. No. 542 of 1999 was filed by the Human
Rights Union of Supreme Court's Lawyers. The prayer(s) in both these writ
petitions were for implementation of the report of the Commission and for other
reliefs including action to be taken against the police officers. It is true
that both these petitions were pending when the High Court disposed of the writ
petition filed by the Respondent No. 1 herein. Mr. 9 Naphade, learned senior
counsel for the State very much relied on the decision of this Court in Chhavi
Mehrotra vs. Director General, Health Services, 1995 Supp (3) SCC 434. In the
said decision, writ petition was moved by one Ms. Chhavi Mehrotra before this
Court under Article 32 for directions for consideration of her admission to the
MBBS course against 15 per cent all-India quota of 1992. This writ petition
along with other similar petitions came for consideration and certain
comprehensive directions were issued in matters for admission of students in the
waiting list to various colleges in the country. During the pendency of the
said writ petition, it is seen that the petitioner moved an independent Writ
Petition No. 1508 of 1993 before the Lucknow Bench of the High Court and
obtained certain directions. When this was brought to the notice of this Court,
it was observed "it is a clear case where the High Court ought not to have
exercised jurisdiction under Article 226 where the matter was clearly seized of
by this Court in a 10 petition under Article 32....." There is no dispute
about the proposition and this Court reiterated that judicial discipline would
require that in a hierarchical system, such conflicting exercise of
jurisdiction should be avoided. However, the dictum laid down in that case is not
applicable to the case on hand, because in Chhavi Mehrotra (supra), the same
petitioner after filing writ petition under Article 32 and getting certain
directions approached the High Court under Article 226 and the High Court had
issued more directions.
was brought to the notice of this Court, after pointing out the practice and
procedure, this Court dissatisfied with the High Court's move. In the case on
hand, first of all, the writ petition came to be filed in the High Court in the
year 2007 by the Respondent No. 1 herein well prior to the filing of two writ
petitions under Article 32 in this Court, that too by different persons,
namely, two NGOs i.e. Action Taken Committee for implementation of Srikrishna
Commission Report and Human Rights Union of Supreme 11 Court's Lawyers.
Further, admittedly, there is no order by this Court prohibiting the High Court
from entertaining writ petition or proceeding further about the said incident.
In fact, we are told that those writ petitions are still pending. In such
circumstances, we are of the view that the reliance placed on Chhavi Mehrotra
(supra) is not applicable and there is no violation or deviation of any
established practice and procedure particularly in the light of the peculiar
facts of this case, where Respondent No. 1, who himself a victim and
complainant in respect of Hari Masjid incident seeking direction for action
against the officers, particularly, Respondent No. 2 herein. Accordingly, we
reject the first contention.
As regards the second objection, namely, the State itself had
constituted Special Task Force (STF) and proceeded with the investigation,
certain factual details asserted by the Respondent No. 1 in his complaint dated
28.08.2006 are relevant. In the said complaint addressed to Sr. Inspector of 12
Police, R.A.K. Marg Police Station on 10.01.1993 while the city was in the
midst of communal disorder, according to the complainant, he went to Hari
Masjid for performing his Namaz. While he was within the premises of the
Masjid, 4-5 police personnel entered into the Masjid and started indiscriminate
firing. The persons who were performing Namaz started running helter and
skelter and took refuge in various rooms in the Masjid. They closed all the
windows except one and through this open window, a police officer by name
Nikhil Kapse-Respondent No. 2 herein started firing inside the premises and two
persons lost their lives. One bullet hit the complainant on his back. The
persons inside were asked to come out with hands held high. One person by name
Namazi Shamsuddin had sustained bullet injury on his leg. While he was
attending to his injury, Respondent No. 2 fired on his chest killing him on the
spot. In all, 6 muslim persons lost their lives and seven were injured. He also
narrated that police took several persons including him to 13 R.A.K. Marg
Police Station and how they were treated inhumanly. He was shown as accused no.
35 in C.R. No. 17 of 1993. In the meanwhile, by a Gazette Notification dated
25.01.1993, the State of Maharashtra appointed a Commission headed by Justice
B.N. Srikrishna to enquire into the riots and various incidents which occurred
during the riots in Mumbai. The report of the Commission was published on
16.12.1998. The High Court has also noted the Commission's finding about the
role of Respondent No. 2 in Hari Masjid incident which was referred to in the
Commission's report paragraph Nos. 24.23 to 24.25 and in para 4 of the High
Court's order. It is also relevant to point out that similar objection was
taken by the Public Prosecutor before the High Court stating that the Special
Task Force only proceeded on the basis of the version given by the police
witnesses. The High Court has observed that it is completely one-sided
investigation and it is difficult to countenance an investigation where the
statement of none of the injured 14 witnesses was recorded and which was
confined to reaching a conclusion on the basis of the statements of police
officers who were present at the time of incident when the commission had prima
facie indicted that some of these officers have committed serious offences. In
view of the factual opinion about the investigation of Special Task Force by
the Commission, we do not find any error in the decision of the High Court in
ordering investigation by a special agency like CBI. Accordingly, we reject the
second contention also.
Coming to the last submission about exercise of jurisdiction under
Article 226 by the High Court, Mr. Naphade submitted that the writ petitioner
ought to have availed Sections 173, 190 etc. of the Code and the High Court
ought not to have issued a writ of mandamus. To strengthen his arguments, he
relied on Gangadhar Janardan Mhatre vs. State of Maharashtra and Ors. (2004) 7
SCC 768, Hari Singh vs. State of U.P., (2006) 5 15 SCC 733 and Aleque Padamsee
& Ors. vs. Union of India & Ors. (2007) 6 SCC 171.
In the first case, i.e. Gangadhar Janardan Mhatre (supra), after
adverting to Sections 156(3), 169, 173, 178, 190 as well as 200 this Court
concluded that instead of availing remedy under those provisions, writ petition
in such cases is not to be entertained.
In Hari Singh vs. State of U.P., (2006) 5 SCC 733, considering the
very same provisions, this Court concluded that when the information is laid
with the police but no action on that behalf is taken, the complainant can
under Section 190 read with Section 200 of the Code lay the complaint before
the Magistrate having jurisdiction to take cognizance of the offence and the
Magistrate is required to enquire into the complaint as provided in Chapter XV
of the Code. It was further held that in case the Magistrate after recording
evidence finds a prima facie case, instead of issuing process to the accused,
he is empowered to direct the police 16 concerned to investigate into the
offence under Chapter XII of the Code and submit a report. If he finds that
complaint does not disclose any offence to take further action, he is empowered
to dismiss the complaint under Section 203 of the Code. In case he finds that
the complaint/evidence recorded prima facie discloses an offence, he is
empowered to take cognizance of the offence and would issue process to the
accused. After pointing out the same, the Court has concluded the dismissal of
writ petition filed under Article 32.
In Aleque Padamsee & Ors. vs. Union of India & Ors. (2007)
6 SCC 171, this Court, after adverting to the earlier decisions reiterated the
The principles enunciated in the above decisions make it clear
that if any person is aggrieved by the inaction on part of the police or not
getting proper response, there are adequate remedies provided under the Code
and it is for such person to seek relief with the aid of these provisions.
However, we have already adverted to the specific allegation in the 17
complaint of the Respondent No. 1, how the Special Task Force conducted
investigation, as seen from the report of Srikrishna Commission. Further, in
the case on hand, the Respondent No. 1 has asserted at many places which were
supported by the Commission's report, more particularly, the information that
the State Police did not examine the injured witnesses who were available at
the spot and suffered a lot.
of the demolition of Babri Masjid on 06.12.1992, and riots in various places
all over India including Mumbai on 10.01.1993, specific assertion by the
Respondent No. 1 who is an affected person coupled with the findings of
Srikrishna Commission accepted by the State, we are of the view that it is an
"extraordinary case" and we hold that the Respondent No. 1 herein is
fully justified in approaching the High Court seeking extraordinary
jurisdiction for direction for entrusting the investigation to independent and
special agency like CBI.
we reject the said contention also.
Finally, as rightly pointed out by Mr. Gonsalves, learned senior
counsel for the Respondent No. 1, after the notification of the Government of
Maharashtra dated 07.02.2008 consenting CBI to investigate the incident
relating to Hari Masjid, it is not understandable as to the opposition of the
direction of the High Court ordering CBI inquiry. It is useful to refer the
Notification of the Government of Maharashtra which reads as under:
OF MAHARASHTRA NOTIFICATION Home Department (Special) Mantralaya, Mumbai - 400
032 Dated: 7th February, 2008 No. MIS 0807/CR 276/Part-II/Spl-2. In pursuance
of the provisions contained in Section 6 of the Delhi Special Police
Establishment Act, 1946, (Act XXV of 1946), the Government of Maharashtra is
pleased to accord consent to the exercise of the powers and jurisdiction of the
members of the Delhi Special Police Establishment for the inquiry into the
incident as dealt with by Srikrishna Commission in its Report, Volume II in
para Nos. 24.17 to 24.24 relating to Hari Masjid incident.
consent is also accorded for the inquiry/investigation of attempts, abetments
and conspiracies in relation to or in connection with the 19 offence in the
said case and any other offences committed in the course of same transaction or
arising out of the same facts.
and in the name of the Governor of Maharashtra Sd/- A.N. Naiknaware Deputy
Secretary to Government"
It is not
in dispute about the said notification and the follow up action by the CBI
after examining several persons. No doubt, learned senior counsel for the State
by drawing our attention to certain affidavits filed by the officers of the CBI
in the High Court submitted that the CBI itself was reluctant to accept the
investigation due to various reasons. On going through those affidavits filed
by some of the officers, we feel that there is no need to give much importance
to the same.
About the direction by the High Court, in exercise of its jurisdiction
under Article 226, requesting the CBI to investigate a cognizable offence
within the territory of a State without its consent was considered recently by
a Constitution Bench in a decision reported in State of West 20 Bengal &
Ors. vs. Committee for Protection of Democratic Rights, West Bengal & Ors.
(2010) 3 SCC 571 which reads as follows:- "69. In the final analysis, our
answer to the question referred is that a direction by the High Court, in
exercise of its jurisdiction under Article 226 of the Constitution, to CBI to
investigate a cognizable offence alleged to have been committed within the
territory of a State without the consent of that State will neither impinge
upon the federal structure of the Constitution nor violate the doctrine of separation
of power and shall be valid in law. Being the protectors of civil liberties of
the citizens, this Court and the High Courts have not only the power and
jurisdiction but also an obligation to protect the fundamental rights,
guaranteed by Part III in general and under Article 21 of the Constitution in
particular, zealously and vigilantly."
of the above pronouncement, we hold that in order to protect civil liberties,
fundamental rights and more particularly Article 21, this Court and High Courts
can very well exercise the power, no doubt, must be sparingly, cautiously and
in exceptional situations as observed in para 70 of the said judgment.
In the light of the above discussion, we are unable to accept the
stand of the State of Maharashtra and we are in agreement with the decision
rendered by the High Court in ordering investigation by the CBI. Taking note of
the fact that the incident related to 1993 and also of the fact that the CBI
has already examined several persons, we direct the CBI to continue and
complete the investigation into the incident and file a final report to the
Court concerned within a period of 6 months. With the above direction, this
appeal is dismissed.
..........................................J. (P. SATHASIVAM)
..........................................J. (ANIL R. DAVE)