State Of Maharashtra vs Farook Mohammed Kasim Mapkar & Ors

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.

3) 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, Bombay.

Respondent 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.

Therefore, 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.

On 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.

5

4) 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.

5) 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.

(ii) The State of Maharashtra itself constituted Special Task

Force (STF) and proceeded with the investigation.

(iii) 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.

6) 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.

Finally, 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.

7) We have carefully considered the rival contentions and

perused the relevant materials.

8) 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.

When this 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.

9) 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.

10) 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.

11) 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.

12) 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.

13) In Aleque Padamsee & Ors. vs. Union of India & Ors.

(2007) 6 SCC 171, this Court, after adverting to the earlier

decisions reiterated the same ratio.

14) 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.

In view 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.

Accordingly, we reject the said contention also.

18

15) 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:

"GOVERNMENT 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.

The 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.

By order 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.

16) 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."

In view 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.

21

17) 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) NEW DELHI;

JULY 30, 2010

22