Noorul Huda Maqbool
Ahmed Versus Ram Deo Tyagi & Ors.
J U D G M E N T
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
The
order passed by the Bombay High Court confirming the order passed by the Additional
Sessions Judge, Greater Bombay allowing the discharge application preferred by
Accused No.1, Ram Deo Tyagi, Lahane Bhagwan Vyankatrao (A-2), Sawant Subhash
Namdeo (A-4), Santosh S. Koyande (A-6), Chandrakant B. Raut (A-8), Anil Narayan
Dhole (A-14), Satish Kumar B. Naik (A-15), Ganesh Bhaskar Satvase (A-16) and
Anant Keshav Ingale (A-17) is in challenge here. Against the aforementioned
order of discharge passed by the Trial Court, the present appellant Noorul Huda
Maqbool Ahmed had filed a revision before the Bombay High Court and the High
Court dismissed the said revision. That is how the appellant is before us. We would
prefer to refer to the accused persons by their respective positions before the
Trial Court.
3.
It
has to be noted that the aforementioned discharge order by the Trial Court was not
challenged before the High Court by the State of Maharashtra and in fact they
chose to support the order. Even before us on a specific plea having been made,
the learned counsel appearing for the State of Maharashtra has chosen to support
both the orders by the Trial Court as well as the High Court.
4.
The
city of Mumbai, which is otherwise known to be a cosmopolitan city was rocked
by communal riots in early 1993. On 09.01.1993 the said riot was at its peak
and it engulfed various parts of city of Bombay coming within the jurisdiction
of number of police stations. In the present matter, we are concerned with two police
stations, namely, Pydhonie Police Station and Dongri Police Station. A road
called Mohd. Ali Road divides the respective areas of these two police
stations. There was one bakery called Suleman Bakery. This bakery has a Mosque in
its immediate neighbourhood as also a Madarasa where admittedly the students
belonging to Islamic faith used to reside and were being trained.
The said Mosque is called
Chuna Bhatti Mosque. It is an admitted position that Suleman Bakery, the Mosque
as also the Madarasa came within the control of Dongri Police Station. They are
situated at the aforementioned Mohd. Ali Road and since there were severe
disturbances, a police picket was set up diagonally opposite to the said Suleman
Bakery. But in the 3area of Pydhonie Police Station, seeing that some
miscreants were firing at the picket at the road from the terrace of Suleman Bakery,
the police warned the miscreants to stop their nefarious activities. However, the
same went on unhindered by these warnings. A police officer from the Pydhonie Police
Station, therefore, reported this incident to the control room and asked for
help. One wireless van allegedly came to the spot and also noticed that some
shots were fired from the building of the Suleman Bakery.
On receipt of the wireless
message to the control room, Joint Commissioner of Police Shri R.D. Tyagi,
respondent No.1 herein came to the spot along with a team called the Special
Operations Squads (SOS). Such squads were formulated to control communal riots.
The persons in the bakery were not deterred by the presence of Tyagi or the
members of the SOS and continued to pelt bottles, acid bulbs and stones towards
the police.
Therefore, Joint
Commissioner Tyagi ordered the squad to enter the bakery. Needless to mention
that the door of the bakery was bolted from inside and the inmates did not open
the door though they were asked to do so. Respondent No.1, Tyagi, therefore,
directed the police force to break open the door of the bakery and to arrest
the miscreants. The police squad was told to use minimum force. Accordingly,
the door was broken and the members of the SOS team entered the Suleman Bakery
but in the process they had to resort to firing due to which 12 persons inside got
injured and 8 persons succumbed to death. Admittedly, the members of 4the team
could not recover any fire arm except swords and sticks.
5.
Shri
Tyagi then left the place and complaints were lodged after the riots against
the police force. There was an enquiry under the Commission of Inquiries Act headed
by Hon'ble Shri Justice B.N. Srikrishna, as His Lordship then was. Justice
Srikrishna found that in this particular incident and some other incidents police
were responsible for using more than necessary force and the Government of
Maharashtra, therefore, decided to lodge prosecutions against the police
officers who had taken law in their hands. In the present case, the State had
lodged a complaint against 18 police personnel for the offences punishable
under Sections 302 and 307 read with Section 34 of the Indian Penal Code. A
Sessions Case being No.1171 of 2001 was, therefore, lodged in which the 18
accused persons moved an application for discharged under Section 227 of the Criminal
Procedure Code.
The Sessions Judge discharged
the accused persons named and dismissed the application of rest of the accused
persons and directed that the prosecution shall continue against the others as
has been stated. The State of Maharashtra had not challenged the order. However,
the same came to be challenged by a private party who claims to be a victim. The
High Court having dismissed the said revision, the same private party has come
up before us by way of the present appeal.
Before we proceed to appreciate
the contentions raised by the learned Senior Counsel appearing for the
appellant Shri Vijay Pradhan, we must also note a few more facts. On the basis of
the incident which took place on 09.01.93, an FIR was lodged against as many as
78 persons by Anant Keshav Ingale who is none else but accused No.10 in Dongri Police
Station. All these accused were committed to Sessions Court in the year 2002. The
said Sessions case is Trial No.930 of 2002. Out of the 78 persons, as many as 70
persons are shown to be absconding. The remaining persons were charged for the
various offences under Sections 143,144,145,147,149, 307 read with Section 307,
Section 34 as also Section 120 B, IPC and 325, 327 of the Arms Act on
22.12.2004. The said order was challenged in the High Court where it is still
pending.
6.
The
prosecution in this case was launched on the basis of the FIR C.R. No.198 of
2001 in Pydhonie Police Station on 25.5.2001. It is on the basis of the
statement of one Mirza Azamtullah Beg. On the basis of this FIR, subsequent
investigation proceeded and a charge sheet came to be filed against the 17
accused persons. It was at this stage that applications came to be filed on
behalf of the accused persons under Section 227 of the Cr.P.C. which resulted
in the discharge of the present respondent Nos. 1 to 9 which order was then challenged
before the High Court and was confirmed by the same.
7.
Shri
Pradhan appearing on behalf of the private person launched a scathing attack on
the order of discharge as well as the confirming order passed by the High
Court. In his address, he tried to point out that both the Courts had erred in
relying on the circumstance that the accused who were discharged had not fired
a single bullet. As regards the respondent No.1, the contention was that he was
the leader of the team who had gone to quell the riots.
According to Shri
Pradhan, in fact, there was absolutely no reason for the SOS firstly to go in
front of the Suleman bakery as the story, that there was stone pelting throwing
of glass bottles and firing from the terrace of the Suleman bakery, was nothing
but a myth. Shri Pradhan was at pains to point out that the situation was
perfectly under control and there was no evidence to suggest that the coming on
the scene of the SOS was in any manner warranted. Shri Pradhan further argued that
if at all there was any wireless message sent from the picket to the Pydhonie
Police Station, it was absolutely a false message because there was no question
of firing from the Suleman bakery, particularly, on the backdrop of the fact
that the team which entered Suleman bakery did not find any firing arm or ammunition.
The contention raised
was that admittedly all the persons alleged to be hiding in Suleman bakery were
Mohammedans and the Special Operations Squad wanted to teach a lesson to the
Mohammedans who were held up in the Suleman bakery. Shri Pradhan pointed out
that there was a complete curfew and it is not as if the unruly mob had come on
the streets breaching the curfew order. He pointed out that there were number of
persons admittedly studying in Madarsa who were innocent Mohammedan students. Shri
Pradhan further pointed out that the entry of the whole team of 17 or 18 police
men, particularly, after breaking open the front door of the Suleman bakery and
their firing and killing 8 persons was nothing but an act of revenge against the
Mohammedans. Shri Pradhan also took us in great details through the topography
of the area as also the inside details of Suleman bakery.
He argued that there
was a single staircase for going above the ground floor of the Suleman bakery
and the ground floor itself was a small area. He, therefore, suggested that the
presence of so many persons in the ground floor was not possible. He further pointed
out that the staircase was so narrow that only one person could have at a time
gone up and there was no scope for so many persons to go up. From this, he derived
an argument that the team which entered after breaking open the front doors had
gone up and then shot dead 8 defenceless persons and also injured others.
Therefore, Shri Pradhan
was at pains to point out that all those injured had suffered bullet injuries. From
this, he extended his argument further suggesting that all this was not possible
unless there was a common object on the part of the police personnel to teach
lesson to the innocent members of Muslim community. He further pointed out that
there was nothing which justified the wanton and mindless firing. He urged that
8some persons of the police force who may not have fired a single bullet, it
was enough to rope them in with the aid of Section 34 or Section 149, IPC as
the whole assembly had turned illegal in firstly breaking open the doors
without any purpose and then going up and firing at the defenceless persons
hiding in Suleman bakery. Shri Pradhan very strenuously argued that merely because
respondent No.1 had not entered the shop, it does not absolve him at all as he
was the leader of the SOS and had to take the full responsibility.
He pointed out that in
fact there was no reason for respondent No.1 to come on the spot at all and
then to order his team to break open the doors and to enter the Suleman bakery.
Shri Pradhan, therefore, firstly suggested a common intention and argued that
the act of entering, by itself, was sufficient to hold that those accused who entered
were participants in crime. In that view, Shri Pradhan argued that the mere
fact that they did not fire was not a relevant factor. He alternatively argued
that at any rate this was an unlawful assembly again on account of Clause
thirdly of Section 141 of IPC and hence all the discharged accused persons were
the members of the unlawful assembly and had to be at least charged and
inquired into by the Courts below.
8.
Replying
this Shri U.R. Latit, learned senior counsel pointed out that to suggest that the
situation was under control and everything was calm and quiet, would be a travesty
of facts. Shri Lalit pointed out that the 9situation was extremely tense and a
wireless message was sent from the picket in front of the bakery to Pydhonie
Police Station. Shri Lalit argued that the whole police force could not be attributed
with the motive of teaching lesson to a particular community. He suggested that
the members of the picket and, more particularly, Ingale who sent the message
had full idea of the topography since he was able to see himself the whole
situation prevalent in Suleman bakery and its terrace from the building which was
opposite Suleman bakery.
He pointed out that the
picket was set up only to quell the violence and the very existence of the
picket was a pointer to the fact that everything was not calm and quiet and
under control in that area which is predominantly a Muslim area and which was a
greatly disturbed area. Shri Lalit pointed out that by no stretch of
imagination could the SOS be called an unlawful assembly as their very duty was
to establish peace. He further pointed out that it is not as if respondent No.1
had carried the SOS without any reason or justification. He had in fact gone
there on account of the wireless message.
He further pointed
out that insofar as respondent No.1 is concerned, there was hardly any question
of his having entertained any motive to teach lesson to the Muslim community. Insofar
as others who entered the building, Shri Lalit pointed out that if even under
that explosive situation the police personnel did not use weapon and did not
fire a single bullet, there was no question of attributing any motive to such personnel.
On the other hand, these police personnel even at the risk of their own lives
had chosen to enter the building. Shri Lalit said that on the basis of the evidence
available, the entry into the Suleman bakery by breaking the locks was fully
justifiable. He further pointed out that the topography was such that the miscreants
could have easily run away with the guns and ammunition as the building there
are connected to each other and it was very easy for the miscreants to escape
with ammunition. From all this, Shri Lalit pointed out that the discharge order
passed by the Trial Court and confirmed by the High Court was perfectly
justified.
9.
It
is on this basis that we have to examine the respective claims. We must at this
point consider the First Information Report and its contents. A close scrutiny therein
suggests that it was an admitted position that the riots in the two communities
were going on from 6th to 10 December again started on 6th January and subsided
only on 16th or 17th January. It is also an admitted position that severe
damage was caused to public and private property and there was also loss of
lives and since the riots assumed serious proportions, the curfew was imposed
for 24 hours in several parts of the city during the said period and police pickets
were maintained at various places. It is also mentioned in the FIR that the
Special Operations Squads were formed by the police and that respondent No.1 at
that time was the Joint Commissioner of Police (Crime), Greater Bombay and that
all the other accused were Inspector of police, Sub-Inspector of Police, Police
Constables etc.
It was also an
admitted position that Shri Anant Keshav Ingale accused No.17 (before Sessions Judge)
was then attached to Pydhonie police station and all the accused were attached to
Special Operations Squads. The FIR describes the topography of Suleman bakery as
also of the mosque which is called Chuna Bhatti and the Madarsa called Darul
Uloom. The FIR says about the firing at the picket and the conversation between
ASI Nagare In-Charge of the picket with Anant Keshav Ingale (A-17 before Sessions
Court). Regarding the said gun shots coming from the direction of the terrace
of the Suleman bakery, though it asserts that there was no record regarding any
untoward incident which allegedly commenced at 9.30 and went on for three
hours, it is pointed out that no bullets or cartridges were traced near about
the picket and no injury was caused to anybody. The FIR then refers to the
wireless message from the picket to Pydhonie police station about firing as also
the information communicated to respondent No.1, R.D. Tyagi by the control room
about the firing.
It also refers to the
conversation on the part of respondent No.1 referring to a man with a stengun being
present. It is mentioned that the said stengun man was neither caught nor the
stengun was recovered. The FIR also refers to the further orders issued by
respondent No.1 to enter the bakery after breaking open the front doors. The
FIR then makes a reference to the Dongri police 12station and also refers to
the FIR lodged against 78 persons arrested by SOS. Specific mention is also made
in the FIR that 10-15 persons escaped with weapons and the attempts on their part
to commit murder rioting etc. There is a specific reference made in the FIR CR No.
46 of 1993. There is then a reference made to the further investigation
conducted by one P.I. Patil. Then a reference is made to the report of Justice
Srikrishna. It is further mentioned that Anwar Ali Mohd. Islam, a witness examined
by the Commission received injury by gun shot.
A reference is made
to the dialogue between the police personnel regarding the hidden weapons. A
reference is also made to the evidence of Mohd. Qutubuddin, Noorul Huda and
Abdul Wafa Hahibulla Khan etc. who have deposed before the Commission regarding
the entry of the police into Suleman Bakery. It is then mentioned in the Panchnama
that seven empties and two live cartridges were recovered from the place of
offence which were fired by the miscreants. An assertion is then made that no
fire arms were recovered during the Panchnama. A reference is then made to the
injuries suffered by the 8 dead persons. A reference is made to the observation
that it was impossible for 78 persons to fit themselves in the bakery building.
Then it was impossible for 17 persons to break into the bakery and catch hold
of the 78 persons. It is also pointed out that in the topography, it is clearly
mentioned that the entire version is exaggerated and incapable of taking place.
It was pointed out
that not a single serious injury was sustained by any member of the SOS nor was
there any injury by the fire arm. It is also mentioned that it was impossible for
the miscreants to escape with fire arms as there was no way of escape from the mosque.
It is then mentioned that the entire FIR No.CR 46 of 1993 recorded with the
Dongri Police station is a got up document in attempting to justify the death
of nine persons caused by them. It is also mentioned further that Anant Keshav
Ingale could not have been at the picket at 9.30 as the entry at the station
diary made at 12.45 p.m. on 9.1.93 at Pydhonie police station shows that Ingale
and API Jadhav left police station at 10.20 a.m. and he was no where near the Suleman
bakery until about 12.45 p.m. A reference is made to the record of the Commission,
the FIR and the Panchnama in Dongri Police Station Cr. No.46 of 1993 and the material
collected in that crime.
10.
Motives
are attributed then to the accused persons that they took undue advantage of
the authority given to them and abused the power to cause the death of 9
innocent persons. Heavily relying on this FIR, Shri Pradhan pointed out that
the prosecution on the basis of the FIR in Dongri Police Station was nothing
but a fagade created by the police for screening themselves and justifying the
firing in Suleman bakery. There can be no dispute that the FIR heavily relies on
the evidence given before the Commission of Inquiry. When we see the
application under Section 227 and especially by the first accused, it is
pointed out therein that in those riots more than 1500 persons had lost their
lives and also the property of crores of rupees was damaged.
It is pointed out
that the entire police force was working under tremendous pressure and during those
riots seven police officers were killed and 496 officers/policemen were
injured. It was also pointed out that sophisticated fire arms and other lethal
bombs were used by the violent mob and the police officers had to make Herculean
efforts to bring the situation under control and that the police were relentlessly
targeted by the violent mob. A detail reference has been made to the Dongri,
Pydhonie, Nagpada and Agripada police stations which are predominantly Muslim areas
and were communally hypersensitive. The application further refers to the bombs
being hurled at police in the firing directed at them. About 9th January, it is
specifically contended that the Commissioner of Police and the respondent No.1 were
patrolling the concerned area.
The situation grew extremely
volatile and explosive, particularly, in the areas of the four aforementioned police
stations and, therefore, a wireless message was given to the Commissioner that
almost a civil war type situation had arisen and in fact it was thought of
handing over of the area to the military. It is pointed out that the
Commissioner of Police, therefore, left the area to attend a meeting while
respondent No.1 reached along with the SOS while prosecution witness Ajit Deshmukh
continue to patrol the area in Pydhonie. Relying on the statement of prosecution
witness Ajit Deshmukh, it is further pointed out that the miscreants were
challenging from the roof top of Suleman bakery. It also refers to one round
being fired towards the SOS when they were alighting from the vehicle. A
reference is also made to the shot being returned by Ajit Deshmukh in self
defence from his service revolver. Reference is also made to the observations made
by Anant Keshav Ingale (A-17 before Sessions Court) from above a shop and also confirming
that the miscreants were using automatic fire arms and three persons carrying
revolvers.
A reference is then
made to the entry which was based mainly on the further fact that the witness
Deshmukh sustained injury on his left hand as he was hit with a hard object like
glass bottle and it was that circumstance that door was ordered to be broken. A
reference is made to the three injured persons who had jumped and also the further
investigation against those who were taken into custody. The reference is made to
the recommendation in the Commission that no prosecution should be initiated against
R.D. Tyagi (A-1 herein) as he had acted in discharge of his official duty. In
his application, Shri R.D. Tyagi had taken a defence of acting in discharge of
his duties.
It was also pointed
out that the accused did not go on his own but in response to a wireless call
and on arrival he faced a gun shot and fire at witness Ajit Deshmukh. It was
further mentioned that R.D. Tyagi had also reported about having seen the arm carrying
miscreants on the rooftop of Suleman bakery. It is also pointed out that the
information was got verified on the other police picket and that respondent
No.1 herein had taken full precaution and had issued warnings to miscreants at
Suleman bakery and asked them to surrender and when this did not yield any results,
the bakery was ordered to be broken open by force. It is also pointed out that
Ajit Deshmukh was also hit hard by missile and, therefore, the operation had to
be done without there being any alternative.
It is on this basis that
the application was moved. By way of legal submissions, it was urged that there
was already an FIR lodged at the Dongri police station about the happenings in
Suleman bakery, therefore, there could be no second FIR in respect of the same
incident. Section 161 of the Bombay police Act was also pressed in service. Section
197 was also pressed in service, particularly, in respect of Shri R.D. Tyagi. The
Civil Service Rules were also pressed in service to suggest that he could not now
be proceeded after his retirement which took place in the year 1997. Almost to the
same effect with a little difference were the other applications made by
accused Nos. 2 to 18.
11.
It
cannot be disputed and was not really disputed by Shri Pradhan that the situation
in Bombay on 9.1.1993 was extremely volatile though Shri Pradhan insisted everything
was calm and quiet on account of the curfew. It is not possible to come to that
conclusion at least on the basis of the material available which suggests that the
miscreants were trying to breach the curfew by coming on the road and by making
women as their shields and there was constant exhortation at the instance of
miscreants and they were encouraging people to come on the road to breach the
curfew. A very existence of the picket in front of the Suleman bakery and the
conversation from the picket to the control room at the Pydhonie police station
would give the idea as to how grim the situation was. We have also carefully
seen the Trial Court's order.
The Trial Court has
rightly relied on the decision of this Court in T.T. Antony v. State of Kerala [AIR
2001 SC 2637], wherein it is held that the observations and findings in the
report of the Commission are only meant for the information of the Government.
Acceptance of the report of the Commission by the Government would only suggest
that being bound by the Rule of law and having duty to act fairly, it has endorsed
to act upon it. It was further observed that the investigation agency may with advantage
make use of the report of the Commission in its onerous task of investigation
bearing in mind that it does not preclude the investigation agency from forming
a different opinion under Section 169/170 Cr.P.C. of Cr.P.C. if the evidence obtained
by it supports such a conclusion.
However, the Courts
were not bound by the report of the finding of the Commission of Inquiry and
the Courts have to arrive at their own decision on the evidence placed before them
in accordance with law. The Trial Court has also relied on Kehar Singh & Ors.
v.State (Delhi Administration) AIR 1988 SC 1883 to hold that the 18report of
the Commission referred the consideration of the government and it is the opinion
of the Commission based on the statement of the witnesses and other material
but has no evidentiary value in the criminal case. The Trial Court then
proceeded to examine the prima facie case and relied on the wireless message given
by Anant Keshav Ingale to the control room and the arrival of R.D. Tyagi in pursuance
of the message along with the team.
The whole message was
then quoted by the Trial Court from which the Trial Court came to the conclusion
that there was firing from the roof top of the Suleman bakery and the door was closed
from inside and inspite of the repeated orders, the inmates refused to open the
door and, therefore, R.D. Tyagi ordered squad to break open the door and
apprehend the miscreants. The Trial Court then went on to accept the police
report to suggest that 7 of the accused persons did not fire a single bullet. From
this, the Trial Court came to the conclusion that though the police officers
were in possession of 638 rounds, some of them fired from 1 to 7 rounds while
some others did not fire a single round.
The Court also relied
on the statement of the inmates and came to the conclusion that the policemen did
not enter with the intention to kill the inmates. The Trial Court then went on
to exclude the application of Section 34, IPC and ruled out the possibility that
the SOS had made any pre-arranged plan of opening fire and killing the innocent
persons. The Trial Court has also analyzed the orders issued by R.D. Tyagi to break
open the doors and 19came to the conclusion that he was justified in directing the
doors to be broken open. The Trial Court also relied on the statement of Ajit
Deshmukh API who was an inured police officer and ultimately came to the
conclusion that there was no question of application of Section 34, IPC,
particularly, when the Joint Commissioner A-1 had directed to take precaution
for the safety of the SOS team and also specifically directed to resort to
minimum force.
It is on this basis
that the Trial Court came to the conclusion that if even after the entry same
accused persons did not fire a single bullet, they were clearly acting in discharge
of their duties and, therefore, they were entitled to the protection under Section
161 of the Bombay Police Act. The Trial Court found that there was no justifiable
case against the police officials who even in the volatile situation did not
open fire at all. Consideration was also made to the fact that the persons who
died had died only of gun shot injuries and that accused had not fired a single
bullet.
12.
The
High Court also referred to the scope of revisional jurisdiction as also the
scope of Section 227 Cr.P.C. The High Court relied on State of Maharashtra v.
Priya Sharan Maharaj & Ors. [AIR 1997 SC 2041] and the observations made in
paragraph 8 to the following effect: "The law on the subject is now well
settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya (1990)4
SCC 76: (AIR 1990 SC 1962) that at Sections 227 and 228 stage the Court is
required to evaluate the material and documents on record with a view to
finding out if the facts emerging there from taken at their face value disclose
the existence of all the ingredients constituting the alleged offence.
The Court may, for this
limited purpose, sift the evidence as it cannot be expected even at that initial
stage to accept all that the prosecution states as gospel truth even if it is opposed
to common sense or the broad probabilities of the case. Therefore, at the stage
of framing of the charge the Court has to consider the material with a view to find
out if there is ground for presuming that the accused has committed the offence
or that there is not sufficient ground for proceeding against him and not for the
purpose of arriving at the conclusion that it is not likely to lead to a
conviction." The Court also referred to the observations made in Yogesh @ Sachin
Jagdish Joshi v. State of Maharashtra [2008 (10 )SCC 394]: "16. However,
in assessing this fact, the Judge has the power to sift and weigh the material
for the limited purpose of finding out whether or not a prima facie case against
the accused has been made out The broad test to be applied is whether the
materials on record, if unrebutted, make a conviction reasonably
possible."
13.
A
very relevant observation has thereafter been made by the High Court that the truthfulness
of the statements or circumstances or documents of the prosecution is not
questioned by the defence. Then the High Court proceeded to consider the scope
of Section 34, IPC as also the scope of Section 47 (2) of the Cr.P.C. The High
Court then considered the scope of alternative argument made by the revisional
Court that the matter should be remanded for adding new charges under Section 111,
IPC under Section 442 read with Section 111 and 113 of IPC against R.D. Tyagi
and the other accused who were discharged. Ultimately, the High Court rejected
the argument and, in our opinion, rightly so. Even Section 107 was referred by
the High Court. In that the High Court rightly came to the conclusion that the
acts of R.D. Tyagi (A-2 before the High Court) and other respondents did not fall
under Section 107, IPC as neither of the three requirements under Section 107
was fulfilled. Even Shri Pradhan did not press that point before us.
14.
We,
after seeing the depth at which Shri Pradhan argued the matter, invited Shri
Pradhan to justify the application of Section 34, IPC particularly on the part of
accused No.1 and those who did not fire a single bullet. Considering the
question of firstly breaking open of the door there can be no dispute that
there is nothing on record to suggest that everything was alright with the
Suleman bakery and that there was huge disturbance going on from the precincts
of the same. There can also be no dispute about the fact that wireless messages
were sent and on the basis of that, the action was taken by the SOS which was being
led by respondent No.1.
In our opinion,
therefore, the accused No.1 was perfectly justified in directing the breaking
open of the front doors of Suleman bakery. We have examined the record
ourselves which suggest that the police personnel had directed the opening of the
door but the same were not being opened. Shri Pradhan was fair enough to admit that
there were persons in Suleman bakery. His only contention is that they were not
committing any mischief. From the material on record, it was clear that the missiles
were being thrown at the police inasmuch as API Shri Deshmukh was actually
injured and there is material to support that in that situation when after
breaking of the doors the police men entered and yet some of the policemen did
not fire the bullets, they certainly could not be clothed with common intention.
In our opinion, the Trial Court as well as the revisional Court have already
taken the view that there could be no common intention shared on the part of
those who did not even fire a single bullet. Shri Pradhan also saw the
hollowness of the claim of the prosecution that these accused persons could be
roped in with the aid of Section 34, IPC.
He, therefore, argued
that the assembly of the police at least till the time they break open the door
was lawful object as it was their duty but they should not have broken open the
door and trespassed the Suleman bakery and all those who entered Suleman bakery
formulated an unlawful assembly as they illegally trespassed into the Suleman bakery
since A-1 herein, Shri Tyagi had ordered them to break open the doors even he
was a part of that unlawful assembly who had the common object. Now the
question is whether this assembly could be called an unlawful assembly. There
can be no dispute 23that they were all the members of the SOS and had the duty
to quell the riots.
They were not doing anything
illegal in coming out and trying to control the riots. There is also no dispute
that by Shri Pradhan that the riots were undoubtedly going on. We outrightly reject
the claim of Shri Pradhan that everything was calm and quiet and yet the SOS came.
There was no reason for the Trial Court and the revisional court and even for
us to believe that the SOS squad came on its own without there being any apprehension
of the further troubles. Those apprehensions are apparent enough in the
wireless message on which the Trial Court wholly relied on and, in our opinion,
rightly. Therefore, there is no point in holding that the SOS itself was an
unlawful assembly.
15.
Further
question is the object of the SOS. A wild argument was addressed that the SOS
were out to teach lesson to the rioters. There is absolutely no material about the
same. Shri Tyagi had no reason whatsoever to be inimical towards a particular
community merely because he belonged to a different community. There is no
material on record to suggest that any of the SOS personnel had any personal agenda.
Therefore, till that point of time at least there can be no question of the
assembly being unlawful. Again if the first accused directed the breaking open
of the door, he had solid reason behind it.
It was his job and
duty to quell the riots and to control the rioters. In pursuance of that he
ordered the breaking open of the door. In our opinion, he was perfectly
justified in doing so. If he had ordered the SOS to break open the order, there
was no alternative for them but to break open the door. Therefore, in the
breaking open the door he did not commit any illegality. Once the doors were
broken up they had to enter. Therefore, the entry could not amount to trespass.
A trespass becomes a criminal trespass if it is with an intention to annoy or to
do something illegal which is not the case here. There was no question of the so-called
entry amounting to criminal trespass.
If some of the
members did not fire a single shot, could it be said that they had a common object
of killing the people much less innocent people? Those who fired the bullets
and caused the death, whether that act will amount to murder is entirely a
different question. That will have to be established on the basis of the
evidence that they had specific agenda for doing so or they had the intention
to do so or that they acted in excess of their powers, that is purely a matter
of evidence. But in case of those who did not fire a single shot, it had to be
said that they had the common objection or that the common object of intention
of killing them. After all, the police who entered were risking their own
lives.
There is evidence on
record to suggest that the miscreants were not the mute bystanders or were
hiding there without doing any mischief. Under such circumstance, if in that volatile
situation also some of the personnel did not fire a single bullet could they be
made vicariously liable for the act of some others which acts are also not
shown to be with a common object of killing the people? The answer would have
to be in the negative. Therefore, in our opinion, there was no question of
there being an unlawful assembly and any act having been committed by the respondent
in pursuance of that common object. Whether there was an object on the part of
others to fire and kill the mob inside is to be examined by the Trial Court.
But insofar as the present
respondents are concerned, not firing a single bullet would certainly take them
out of the prosecution area. We do not agree that on that account they could not
be discharged. In fact, the Trial Court and revisional Court have not relied only
on that circumstance. That circumstance has been considered in the light of other
attending circumstances and, therefore, we do not find any reason to take a
different view than the one which has been taken by the High Court.
16.
Shri
Lalit tried to argue about the Bombay Police Act. However, Shri Pradhan has not
gone to that aspect and it is unnecessary for us to consider the effect of Section
161 of the Bombay Police Act. We find that on merits itself it cannot be said that
there was any prima facie case against these respondents who had not fired a
single bullet and who were thoroughly acting in pursuance of orders of their
superiors and were doing their duty.
17.
Shri
Pradhan, however, contended that there was lot of material against the accused
persons about their having actively taken part in the incident and in support of
his contention he took us through a few statements of the witnesses recorded
under Section 161 Cr.P.C. They are statements of Shri Abdul Sattar Suleman Mithaiwala,
Abdul Wafa Khan Habibullah Khan, Mohd. Kutubuddin s/o Mohd. Musa Siddiq, Hasan
Razakudin Mohd, Gulam Mohd. Farukh Shaikh, Abdulla Abul Kasim and the appellant
himself. Besides these, Shri Pradhan also relied on the statements of Sabre Alam
Jamaluddin Balwor, Mohd. Hussain Aulad Ali Dafali, Mohd. Islam Mohd. Kuddus Shaikh,
Budul Abdul Latif Khan and Mohd. Rafiq s/o Mahebook Ali.
We have carefully
gone through all these statements. Barring the first statement, all the
statements have come by way of additional documents attached to the rejoinder. All
the statements appear to be of the residents of the Madarsa. Significantly
enough, in no statement any specific act on the part of any of the respondents is
mentioned. Generally, it is mentioned in the statements that the persons
concerned heard shouting of policemen who were shouting Darwaja Kholo, Darwaja
Kholo (open the door) and were also asking Hathiyar Khah Chhupa hai (where is
the weapon hidden). In the statement of Abdul Wafa Khan Habibullah Khan it is
mentioned "one of the policemen pressed the rifle's nozzle under the chick
and shouted `sabko maar dalo' but the other policemen stopped him from doing
so".
The description in
the statements is that some persons were shot dead by the police. In all the
statements the act of shooting and killing is attributed to the police without
identifying them. Some of these statements are of those who were injured. In
short, in all the statements, the only act attributed to the police who entered
the Suleman bakery was of firing at the persons and inmates and some of the
inmates dying due to that. There is not a single statement identifying those
policemen who fired or suggesting that those who did not fire committed any
other mischief by beating by rifle butts etc. All the statements referred to the
order of the police to take out the hidden weapons. We have expressed earlier
and even at the cost of repetition, we may mention that indeed no weapon was found
in Suleman bakery but that does not solve the problem because Shri Lalit explained
to us in great details that the weapons could have been easily removed as the
buildings there were so connected that one could easily run away from Suleman
Bakery through connected rooftops of the other buildings.
We put a specific
query to Shri Pradhan as to whether there appeared even a single statement against
respondent No.1 herein or respondent No.9 herein. Shri Pradhan was fair enough to
admit that there was no specific act attributed either to Shri Tyagi
(respondent No. 1 herein) or Shri Ingale (respondent No.9 herein). In short, the
statements, even if they were to be believed completely, would only provide
material against those who actually fired the gun shots. Under such circumstances,
if admittedly the respondents did not fire a 28single bullet, it cannot be said
that they had a common object to kill the innocent insiders in Suleman Bakery
or the Madarsa and Mosque attached thereto. We are quite convinced that the Trial
Court and the revisional Court were not wrong in relying on this very material circumstance
that none of the respondents, though armed, fired a single bullet.
18.
Shri
Pradhan then claimed that if after reading the evidence if some material is
found against some others, then the complainant should have the liberty to apply
for action under Section 319 Cr.P.C. It would be speculative on our part to say
anything on this matter. It will be for the Trial Court to consider any such application,
if made, on its own merit. There will be no question of giving liberty for that
purpose. No other points were argued.19. Under the circumstances, we do not find
any merit in this appeal and proceed to dismiss the same. The appeal is
dismissed.
...........................
......J. [V.S. Sirpurkar]
..............................J.
[T.S. Thakur]
New
Delhi
29July
04, 2011
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