* 1 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 94 OF 2006 Ashfaque Ahmed aged about 45 years, of Bombay Indian Inhabitant, residing at 113/5, Rahamau Manzil Khatu Lane, L.B.S. Marg, Kurla(W), Mumbai-400 017 .....Applicant/Orig.Accd no.32 : V E R S U S : The State of Maharashtra (DCB, CID)through Public Prosecutor, Criminal Side, High Court, Bombay ...... Respondent ALONGWITH CRIMINAL REVISION APPLICATION NO. 408 OF 2005 1. Ashfaque Ahmed aged about 45 years, of Bombay Indian Inhabitant, residing at 113/5, Rahamau Manzil Khatu Lane, L.B.S. Marg, Kurla(W), Mumbai-400 017 2. Noorul Huda Maqbool Ahmed aged about 45 years, residing at 62, Memonwada Road, 2nd Floor Mumbai-400003 .....Applicants [Orig.Accd no.32/ : V E R S U S : The State of Maharashtra (DCB, CID)through Public * 2 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 Prosecutor, Criminal Side, High Court, Bombay ...... Respondent ALONGWITH CRIMINAL APPLICATION NO. 404 OF 2010 [FOR INTERVENTION] IN CRIMINAL REVISION APPLICATION NO. 408 OF 2005 1. Ashfaque Ahmed aged about 45 years, of Bombay Indian Inhabitant, residing at 113/5, Rahamau Manzil Khatu Lane, L.B.S. Marg, Kurla(W), Mumbai-400 017 2. Noorul Huda Maqbool Ahmed aged about 45 years, residing at 62, Memonwada Road, 2nd Floor Mumbai-400003 & anr. ....Applicants : V E R U S : The State of Maharashtra (DCB, CID)through Public Prosecutor, Criminal Side, High Court, Bombay ....Respondent : AND : Shri. Anant Keshav Ingale Aged 56 years, Occ. Service Senior Police Inspector, At present attached with Colaba Police Stn, Mumbai-400 005 Residing at 602, Bullet Building, Near Dadar Railway Station, Dadar (E), Mumbai-400 014 ....Intervenor * * * * * 3 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 Mr. Vijay Pradhan, Senior Counsel a/w Y.H. Muchhala, Sr. Counsel and Mr. Javed Patel, Mr. Vaibhav Nagvekar i/by. Mr. Sagheer Khan,Advocates for the applicant in Revn. Appln. No.94 of 2006 and Revn. Appln. No. 408 of 2005. Mr. M.K. Kocharekar-Intervenor in Cri.Appln. No. 404 of 2010. Mr. Pradip D. Gharat with Mr. S.A. Shaikh and Mr. V.B. Kondedeshmukh, APP for the State-respondent. CORAM :- Smt. R.P. SondurBaldota, J. Date : 4th May, 2011 JUDGMENT : 1. This is a common order on the above two revision applications filed by original accused nos.32 and 76 in Sessions Case No. 930 of 2002 (C.R. No. 46 of 1993). The first revision application is directed against the order of framing of charge and the second revision application is directed against the order of the Sessions Court rejecting their applications for discharge from the sessions case. 2. The interveners application is allowed. Heard all the Counsel. * 4 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 3. The proceedings herein relate to the aftermath of the demolition of Babri Masjid in December, 1992. During the period December, 1992 and January, 1993 the city of Mumbai had witnessed incidents of riot on a large scale with complete breakdown of law and order. One of the several incidents that had taken place during the period is the incident of, now commonly known as Suleman Bakery incident. The incident is dated 9th January, 1993. Suleman Usman Bakery is situate within the jurisdiction of Dongri Police Station adjoining to a Masjid by name Chunnabatti Masjid. On 9th January, 1993 firing was resorted to by the Special Operation Squad (hereinafter referred to as the SOS") led by Shri. R.D. Tyagi, “ the then Additional Commissioner of Police. In the firing, 9 persons had died. In connection with the incident, Dongri Police Station registered C.R. No. 46 of 1993 against the persons present inside the premises of Suleman Bakery and Chunnabatti Masjid alleging that at the relevant time they had become violent and aggressive and that their act of aggression had led to the police firing. 4. The communal riots and the large scale violence that had * 5 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 taken place in the city of Mumbai had resulted into death of more than thousand persons. This created huge public furor. There were allegations made that during the riots, the Mumbai police had acted in a biased and partisan manner. By way of appeasement to public and by responding to the public demand, the State of Maharashtra had set up a Commission under the provisions of Commission of Enquiry Act, 1952 to enquire into the circumstances, and the immediate causes of riots which had led to the breakdown of the law and order situation in Mumbai. Justice B.N. Srikrishna, the then sitting Judge of this Court was appointed as the sole Commissioner to head the inquiry. One of the terms of reference of the Commission was to inquire whether the steps taken by the police in controlling the riots were adequate and proper and whether the police firing resulting in the deaths was justified or not. A large number of persons appearing before the Commission, filed their affidavits and gave evidence. A fair opportunity was afforded to each party who had submitted its statement before the Commission, to cross examine the witnesses and also to lead evidence. After examining the * 6 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 witnesses, evaluating the evidence, submissions and arguments, the Commission submitted its report dated 16th February, 1998. The report is known as The Srikrishna “ Commission Report". 5. The incident of Suleman Bakery is discussed at paragraphs-11.59 to 11.70 of the Srikrishna Commission Report. On appreciation of the material before it, the Commission in its report has expressed dissatisfaction over the version of the police of the incident. At paragraphs 11.68, 11.69 and 11.70 of the report, it concludes as follows : 11.68 “ The public witnesses examined, have given graphic accounts as to how the inmates, who were unarmed, were shot down in virtually cold blood. That some of them jumped over the Chunabhatti Masjid premises and made their escape does not support the theory that they were terrorists or that they were carrying "deadly firearms". The police recovered no firearms whatsoever. All that they claim to have recovered was one spent shell of AK-47 rifle. This perhaps came from the AK-47 rifle carried by one of the SOS personnel. In fact, the utter disappointment of Tyagi is seen when he admits that, to the extent of the operation failed to apprehend the miscreants firing at the police, he was not satisfied with the implementation of his instructions. Tyagi was also surprised as to how 78 persons could have been flushed out and arrested from the bakery which was so narrow and congested. Though * 7 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 there is a statement that one P.C. 23157 Chander Tukaram Sanmukh has recovered 8 swords from under the water tank on the roof, this recovery is also doubtful as no panchanama has been made at all about this recovery. 11.69.The evidence of the students and teachers of the Madrassa-E-Ulum-Imadadiiya appears consistent and leads the Commission to the conclusion that the policemen who barged in the Suleman Bakery and thereafter stormed in the Chunabhatti Masjid and Madrassa, went on a rampage assaulting the inmates there. It also appears that there was indiscriminate and callous police firing resulting in nine casualties. 11.70 The Commission is not at all satisfied with the version of the police. Even assuming some element of truth in the version of the police that there was private firing in the incident, it was not as serious as it is sought to be made out. The Commission feels that the police were very much influenced by the floating exaggerated rumors of attacked from sophisticated firearms, and the consequent fear psychosis, which caused them to shoot to kill. The result-deaths of nine innocent persons in the Suleman Bakery and the adjoining premises. The evidence on record in no way bears out the police story that there were terrorists much less with deadly arms; nor does the evidence suggest that it was necessary for the police to carry out such extensive firing as they did. This is one incident where the police appeared to be utterly trigger happy and used force utterly disproportionate to meet the apprehensions of private firing, assuming there was one. The responsibility for this incident must squarely fall on Joint Commissioner of Police, R.D. Tyagi, who was overall incharge of the operations at the Suleman Bakery, and Assistant Police Inspector Deshmukh and Police Inspector Lahane, who were leading the SOS men.” * 8 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 6. The findings and recommendations of the Srikrishna Commission were however, not accepted by the then Government. This led to filing of a number of writ petitions in this Court, as well as, in the Hon'ble Supreme Court, more particularly Writ Petition No. 527 of 1998, Writ Petition No. 5642 of 1998 and Writ Petition (Civil) No. 40 of 1999. Several parties including two representative bodies of Muslim community who had actively participated in the relief work during the riots and actively participated before the proceedings of the Srikrishna Commission viz. Mumbai Aman Committee and All India Milli Council filed intervention applications in the Writ Petition No. 527 of 1998 and 5642 of 1998. During the hearing of the petitions, the State made a statement before the Hon'ble Supreme Court that although it was not bound to, it had accepted various recommendations made by Srikrishna Commission in the report and constituted a committee comprising of the Senior Police Officer, Officers from Home department and from Law and judiciary * 9 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 department to examine into the delinquency or lapse on the part of the police officer and to recommend suitable action against them. Later after lapse of some more time, another statement came to be made that the State shall refer the report and conclusions of the Srikrishna Commission to the crime Branch, C.I.D. Mumbai for further investigation and action in accordance with the law. However, the Apex Court as also several interveners were not satisfied with the statement of State of Maharashtra. Then as a result of constant monitoring by the Apex Court, the State of Maharashtra filed further affidavit dated 23rd March, 2001 placing on record that it had passed resolution No. DIS-06-2000-258(13)/SPL-1(B) dated 31st August, 2000 to initiate further investigation to implement recommendations of Srikrishna Commission. The affidavit also disclosed the notification of constitution of the Special Task Force (STF) along with the officers and staff appointed on the STF for carrying out further investigation. The incident of Suleman Usman Bakery, was one of several other incidents taken up for further investigation by the STF. 7. During the course of further investigation, STF found * 10 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 that the material shown collected in C.R. No. 46 of 1993 of Suleman Bakery case was got up material, the firing by the police on 9th January, 1993 was totally unjustified and that the police personnel who had indulged into unjustified firing had infact committed murder of 9 persons. It came to the conclusion that C.R. No. 46 of 1993 registered by the police against inmates of Suleman Bakery and the adjoining mosque was not a genuine complaint but was infact a coverup for their action of unjustified firing. Curiously, after completion of further investigation the STF registered fresh FIR against the delinquent police personnel vide C.R. No. 198 of 2001 instead of filing further report in C.R. No.46 of 1993. It then made an application for sanction under Section 197 Cr.P.C. to prosecute 18 delinquent police personnel, including Shri. R.D. Tyagi, involved in the Suleman Bakery incident. The State of Maharashtra after examining material collected in both the complaints i.e. C.R. No. 46 of 1993 and C.R. No. 198 of 2001, granted necessary sanction to prosecute the delinquent police personnel under section 302, 304, 307 and 34 of I.P.C. Thereafter, the STF in the year 2001 filed chargesheet which * 11 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 on committal to the Sessions Court came to be registered as Sessions Case No. 1171 of 2001. 8. On 22nd December, 2004 Sessions Case No. 930 of 2002 came up for framing of charges against the applicant and other accused before the 3rd Additional Sessions Judge, at Sewri. At that time, the applicants and other accused persons, all of whom belong to lower economic class of the society, were unaware of the facts relating to the above referred proceedings in the Apex Court and further investigations in the matter. The Public Prosecutor appearing for the State also failed and neglected to inform the Sessions Court about further investigations into the Suleman Bakery incident by STF pursuant to the directions of the Apex Court and filing of chargesheet in C.R. No. 198 of 2001. Resultantly, the charges came to be framed against the applicants and others. In the meantime, the proceedings in Sessions Case No. 1171 of 2001 came to be transferred to the same Court. In that case, on 2nd May, 2005 the prosecution filed in Court, list of articles, list of witnesses and the summonses to be served upon the witnesses. The evidence in the proceedings commenced on 9th June, 2005 * 12 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 when the first witness therein was administered oath. However, strangely, the prosecutor did not proceed with the evidence. 9. In the meanwhile, the Advocate appearing for the applicants, learnt about the further developments as regards the Suleman Bakery case. He also learnt about the transfer of S.C. No.1171 of 2001 to the Court in which S.C. Case No. 930 of 2002 is pending. Then, the applicants and others moved applications for discharge being M.A. No. 138 of 2005 and 145 of 2005 in Sessions Court submitting that further investigation carried out by the STF showed that the accused in S.C. No. 930 of 2002 had been unjustly chargesheeted. The police officers, accused in S.C. No. 1171 of 2001 also filed an application praying that recording of evidence in S.C. No. 1171 of 2001 be commenced after completion of evidence in S.C. No. 930 of 2002. 10. Both the applications were heard by the Court on 2nd September, 2005. The learned APP appearing for the State opposed the application of the applicants herein and tacitly supported the application of the police officers by not opposing * 13 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 it. The learned Sessions Judge by his order passed on the same day rejected the application filed by the applicants for discharge and allowed the application of accused police officers in S.C. No. 1171 of 2001 directing prosecution to record and complete the evidence in S.C. No. 930 of 2002 prior to the evidence in S.C. No.1171 of 2001. 11. Mr. Pradhan, the learned senior counsel appearing for the applicants submits that not just the order of framing of charge against the applicants herein and the other accused in Sessions Case No. 930 of 2002 but the entire proceedings of S.C. No. 930 of 2002 are bad and in the facts of the case are required to be quashed. His first submission is that the prosecution has suppressed material facts from the trial court which facts go to the roots of the matter. He points out that the prosecution never pointed out to the court at the time of framing of charge the further developments in Suleman Bakery incident, of further investigation into the incident pursuant to the statement made before the Hon'ble Apex Court. The prosecution also suppressed the fact of pendency of Sessions Case No. 1171 of 2001 from the learned Judge. His * 14 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 second submission is that the facts revealed in the further investigation are such that no charge could have been framed against the appellants herein and their co-accused. His third submission is that after conducting further investigation the procedure followed by the appellants of recording fresh FIR and filing an independent chargesheet is improper and not in accordance with the procedure laid down in Criminal Procedure Code. According to him, the police ought to have filed supplementary chargesheet in the same proceedings as there could be no second time cognizance of the same event. Mr. Pradhan submits that the further investigation into the same incident could be under section 173(8) Cr.P.C. and on conclusion of the investigation, the only course to be followed by the police was to file a supplementary chargesheet under section 173(2) Cr.P.C. Along with that, he submits that, in view of the material collected during the further investigation, the prosecution ought to have filed an application to the court for dropping the proceedings against the applicants and their co-accused. According to him non- following of the correct procedure has resulted into absolute * 15 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 injustice to the applicants. 12. Mr. Gharat, Special P.P. appearing for the respondent seeks to support the impugned order by submitting that Srikrishna Commission report was only a fact finding report and the recommendations contained therein cannot be binding upon the State. Nonetheless, according to him, in view of the statement made by the State Government before the Apex Court, the investigation into the report was conducted resulting into a fresh complaint. According to him, two cases i.e. Sessions Case No. 930 of 2002 and Sessions Case No.1171 of 2001 are distinct proceedings in respect of two separate incidents and cannot be allowed to be mixed up. Alternatively, they should be treated as cross cases in respect of the same incident and tried separately though by the same Judge as provided in the Cr.P..C. He further submits that this court cannot take over the responsibility of the trial court of evaluating the material before the court, deciding its veracity or its effect. It is for the trial court to decide whether the first C.R. and the subsequent C.R. are separate cases or one and the only case. Mr. Gharat also submits that since the charges * 16 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 against the applicants having been framed, the trial court could not have discharged the applicants. Besides the applicants would have an opportunity to prove their innocence by cross-examining the witnesses to be examined by the prosecution. Scuttling the entire prosecution at this preliminary stage of the proceedings, would not be correct. Mr. Gharat submits that the second chargesheet filed by the competent investigating agency has not been set aside or quashed by any court. Therefore, the Sessions Court has rightly framed charges against the applicants on the material available in C.R. No. 46 of 1993. No intervention by this court by invoking inherent extra ordinary powers under section 482 Cr.P.C. is justified. Mr. Kocharekar, for the intervener supports all the arguments of Mr. Gharat. 13. The undisputed position is that in the incident dated 9th January, 1993 of Suleman Bakery case happened there was firing by police and on account of their firing 9 persons died. The complaint in connection with the incident, however, came to be filed against 78 persons named in the FIR and 10 to 15 unknown persons under Section 143, 144, 145, 147, 148, 149, * 17 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 307, 34 of Indian Penal Code read with 120(b) Indian Penal Code and under Section (3), 25 and 27 of the Arms Act alleging that they had formed unlawful assembly with deadly weapons like firearms, choppers, knives, iron bars, stones etc. and caused rioting and attempted to commit murder. 14. The first informant in C.R. No. 46 of 1993 is Anant Keshav Ingale, the intervener herein and accused no. 17 in C.R. No. 198 of 2001. The allegations made by him in his statement which is treated as FIR for C.R. No.46 of 1993 are as follows : On 9th January, 1993 from 07.00 hrs. he was petrolling in connection with the ongoing communal riots in the limits of Pydhonie Police Station. He was patrolling in Police jeep along with staff. While patrolling along Mohammed Ali Road, at about 09.30 hrs. he visited the police picket in front of Taj Office shop. The police had reported to him that somebody was firing shots at them from the roof top of Suleman Bakery. On hearing this he got down from the jeep along with the staff and started watching the movements on the rooftop of Suleman Usman Bakery and its adjoining buildings. Suddenly a bullet was fired at them from the * 18 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 rooftop of Suleman Usman Bakery, but, he could not see the person firing the shot. Therefore, he shouted a warning to stop the firing but 3/4 more bullets came to be fired at him from the same place. Therefore, he along with his staff went to the terrace of Taj Office shop in order to locate the place from where the firing was taking place. He saw about 8/10 persons hiding behind the water tanks on the rooftop of Suleman Usman Bakery and adjoining Chunabhatti masjid and shouted a warning asking the persons to stop firing and surrender to the police. However, they continued the firing. Sensing a danger to their lives, P.I. Ingale alongwith his staff retaliated the firing. The said persons continued firing at them by taking cover of water tanks. P.I. Ingale saw that one of the persons had an automatic weapon like stengun and other 2/3 persons were having revolvers. He then got down from the terrace and gave a call to police control room, informing about the incident and requesting for additional help. At about 12.30 hrs. Shri. Tyagi, Joint Commissioner of Police reached the spot along with special operation squad and other enforcement. When the staff reached the spot, the persons on the rooftop * 19 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 again opened fire on them. Police found that the doors of Suleman Bakery was locked from inside. When the inmates were ordered to open the door, they did not respond instead they started throwing stones, sodawater bottles, and acid bulbs on the police party. Then, the police tried bursting tear gas shells but it had no effect on the rioters. Thereafter, the police broke open the door of Suleman Bakery and Mr. Tyagi alongwith other officers went inside the Suleman Bakery. Inspector Ingale also joined them. As they entered the building, about 10 to 15 persons armed with choppers, knives and iron bars came down from the first floor and advanced at the police. There was a warning given by the police to surrender but these persons did not respond and instead attacked the police party. Then, some of the officers and men of SOS opened fire and managed to go to the first floor. On the first floor, there were about 40/50 persons. Those persons obstructed the police party but they were pushed aside by using minimum force. Police then entered the rooftop of Suleman Bakery where they found 15 to 20 persons on the rooftop hiding behind water tank and wall of Chunabhatti * 20 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 Masjid. The Officers took position and warned the persons on the rooftop to come down and surrender. However, the persons on the terrace who had automatic gun and revolvers started firing indiscriminately at the police. The firing was retaliated by the members of the S.O.S. Then 8 to 10 persons jumped inside Chunabhatti Masjid. The police saw that these persons were carrying firearms. The police therefore entered Chunabhatti Masjid. They found two persons with bullet injuries and arrested them. They also arrested 4/5 other persons present in the Masjid. In the firing by the police, in retaliation, in all 9 persons were found injured. They were immediately taken to J.J. Hospital in police vehicles. On that day 78 persons were arrested and sent to Dongri Police Station. Police searched the premises of Suleman Bakery and it’s rooftop but could not recover any weapon. As per the complaint, persons carrying the firearms had probably managed to escape alongwith the weapons. More than a month thereafter, i.e. on 22nd February, 1993 further statement of P.I. Ingale was recorded stating that subsequently he came to know that ten “ miscreants had sustained bullet injuries and nine of them * 21 * Revn.Appln.94.06 a/w.Revn.Appln.408.2005 succumbed to the injuries. In the action, A.P.I. Deshmukh of Crime Branch and P.S.I.