:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1437 OF 2007 Farook Mohammed Kasim Mapkar, Age 41 years, Occ. Service, having address at Room No.3, Arab Building, First floor, Sewree, Mumbai-400 015. ..Petitioner. Vs. 1. The Commissioner of Police, for Greater Mumbai, Near Crawford Market, Mumbai 400 001. 2. The Dy. Commissioner of Police, Zome-IV, Matunga, Mumbai-400019. 3. The Sr. Inspector of Police, R.A.K. Marg Police Station, Sewree, Mumbai-400 015. 4. State of Maharashtra. 5. Nikhil Kapse, Sub Inspector of Police, at present posted with the Economic Offence Wing, Commissioner of Police, Crawford market, Mumbai. 6. Union of India, (through Central Bureau of Investigation) Aayakar Bhavan, Marine Lines, Mumbai-400 020. ....Respondents. Mr. Vijay Pradhan, Sr. Advocate with Mr. Yusuf Muchhala, Sr. Advocate with Mr.Sagheer Ahmed Javed Patel, Shaikh Ahmed, Farooq Ahmed Choudhary along with Omar K. Shaikh for the Petitioners. Mr. S.R. Borulkar, Public Prosecutor along with Mrs.S.D. Shinde , APP. for the State. Mr. R.B. Raghuwanshi,Addl. Solicitor General with J.C. Satpute and Afrox Shah for the Respondent No.6 Union of India. CORAM : F.I. REBELLO & R.S. MOHITE, JJ. DATE : 18th December, 2008. :2: ORAL JUDGMENT : 1. This writ petition is filed by one F.M. Kasim (hereinafter referred to as the "petitioner"). By the said petition, the petitioner seeks a writ of mandamus or any other writ or direction requiring or ordering the respondent No.6 i.e. Union of India through C.B.I. to register an offence under Section 302 of the I.P.C. or any other provision of law which the court may deem fit and proper against Sub Inspector Mr. Nikhil Kapse and such other persons whose action may be revealed in the course of investigation of the offence so registered. 2. The brief facts of the case are as under. a) On 6.12.1992 Babri Masjid came to be demolished and this was followed by communal riots between Hindu and Muslim communities in various parts of the country including Mumbai city. In the city of Mumbai the police officers, S.R.P. and other forces were deputed on fixed point and bandobast duty. b) According to the petitioner and as stated in his complaint dated 28.8.2006 addressed to Sr. Inspector of Police, Rafi Ahmed Kidvai Marg Police Station, on 10.1.1990 while the city was in the midst of communal frenzy, the petitioner at about 12.30 in the noon went to Masjid known as Hari Masjid for performing his namaz. :3: While he was within the premises of the masjid, 4-5 police personnel entered the premises of the masjid and commenced 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. Through this open window, a police officer by name Nikhil Kapse started firing inside the premises and two persons lost their lives in this firing. One bullet hit the petitioner on his back. The persons in the room could also hear the firing in the court yard . They also heard the police personnel giving communal abuses. After some time the police officers asked the persons who had locked themselves to open the door and threatened that if the doors were not opened they would be broken down. The persons who had locked themselves in, therefore, opened the doors. They were asked to come out with hands held high . One person by name Namazi Shamsuddin had sustained a bullet injury on his leg. While he was attending to his injury PSI. Nikhil Kapse fired on his chest killing him on the spot. In all six Muslim persons lost their lives and seven were injured. The police rounded up several persons and took them to Kidvai Marg Police Station in s Police Van and while the van was on the way to the police station, one police officer informed the police station on wireless that firing was going on in the Masjid premises. When the Police van reached the police station, several persons from Shivsena gathered there :4: and they were shouting slogan that those who want Pakistan will be sent to Kabarsthan. Some of these persons attempted to assault the Muslim persons in the police van and the Muslim persons ran into the police station. At the police station, the persons who were brought in the van were assaulted by the police party. Within a short time another police van containing 20 to 25 persons arrived there. A person by name Ismail who was grievously injured was brought in this police van and was repeatedly asking for water. The police did not give him water and ultimately this person Ismail died in the police station itself. The police recorded the names and addresses of all the persons who were brought in the van and sent the injured persons to K.E.M. Hospital for treatment. In the hospital also some Shivsena persons assaulted the persons brought to the hospital. At the hospital, the petitioner was told that there was no bullet in his body. He decided to get his medical treatment done else where and he informed about his decision to a police officer by name Chavan. The petitioner was then brought back to the Kidvai Marg Police Station and on the next day he was sent to the lock up at Bhoiwada Police Station. No food was given to the petitioner for three days. The police filed cases against about 100 persons under Section 151 of the Cr.P.C. Various other cases were filed by the police against the Muslim persons at Bhoiwada Police Station. One lady had come with a photograph which was identified :5: by the inmates as Adam Shaikh who was shot in the masjid and whose body has been taken into custody by the police officer Nitin Kapse. In due course the petitioner was released on bail. After his release he took out a x-ray and found that a bullet was still lodged his body. He got himself operated in the Blue Cross Nursing Home and was treated by Dr. Harshad Khan. The said doctor, after giving prior information to the Sr. Police Inspector of Rafi Ahmed Kidvai Marg Police Station, removed the bullet from his body. c) The record indicates that on the same day i.e. on 10.1.1993 the Sr. Inspector of R.A.K. Marg Police Station registered a crime under C.R.No.17/1993 against about 50 Muslim arrested persons for alleged offence under Section 302, 307, 143, 144, 147, 148, 149 of the I.P.C. 3) It may be stated here that in due course this case was committed to the court of Sessions and numbered as Sessions Case No.1560 of 1994. Out of the 54 persons shown as accused in this case, some persons died during the trial, the prosecution of some of the other accused were separated for various reasons and ultimately out of the 22 persons against whom the trial proceeded, all the accused came to be acquitted by the Sessions Judge vide his judgment and order dated 4.2.2006. The present petitioner was accused No.35 in this case and the trial :6: against him was separated. 4) In the mean while, by a Gazette notification dated 25.1.1993 the State of Maharashtra appointed a Commission headed by Justice B.N. Srikrishana to enquire into the riots and various incidents which occurred during the riots. . The report of Commission was published on 16.12.1998 and taken up for consideration before the Legislative Assembly on 6.8.1998. As per the requirement of the commission of the enquiry the act of State of Maharashtra submitted an action taken report in respect of the finding of the Srikrishana Commission. As regards the aforesaid Hari Masjid incident and the role of P.S.I. Nikhil Kapse, who is respondent No.5 in the present petition, the finding of the commission was recorded in Para 24.23 to 24.25 and was as follows: 24.23 : Upon a review of the material on record of C.R.No.17 of 1993 the Commission is inclined to think that the version of police is wholly unbelievable and has been fabricated to support the unjustified firing of large number of rounds which result in killing of six Muslims. Though during the said incident there was a clash between Hindus and Muslims, the police deliberately suppressed the presence of Hindu mob of two thousand to three thousand in order :7: to justify their unjustifiable conduct. The Commission’s view is that the role of Sub Inspector, Kapse in the entire incident is condemnable. He not only suppressed the presence of Hindu mob, but also misled the Senior Police Inspector on this count. He also fabricated the record to indicate that all the firing took place outside the Masjid premises. Since he did not care to offer any explanation despite service of a notice under Section 8B, the Commission has no reason not to accept the testimony of public witnesses and conclude that Sub Inspector, Kapse is not only guilty of unjustified firing but also of injuman and brutal behaviour during the incident. 24.24 : The attempt of the Deputy Commissioner of Police Bishnoi to give a clean chit to Sub Inspector Kapse by going to the extent of taking the responsibility of the firing at Hari Masjid on himself, may be bravery beyond the call of duty but does not inspite confidence. When confronted with the statements of police personnel Gajanan Shivram Bhor, Bhikaji Sidhy Bugad, Sham Kashinath Dalvi, Ramchandra Krishna Zanjurde and his own Gunner Bhalchandra Kamble, who all uniformly state that the firing was done by Sub Inspector, Kapse on his own before the :8: arrival of Deputy Commissioner of Police Bishnoi, Bishnoi maintained that all of them must have been mistaken, Bishnoi maintained that all the sixty five rounds fired at Hari Masjid were fired in his presence under his orders, that he ordered the firing and that Sub Inspector Kapse obeyed his orders and directed his mean to open fire. Loyalty to one’s subordinates is undoubtedly an excellent trait. Bishnoi needs to be commanded for asserting his loyalty to Sub Inspector Kapse in the face of contrary testimony. The Commission, however, is not willing to accept his uncorroborated testimony against the testimony of all the others, who are themselves police personnel, including his own Gunner Kamble.The clinching piece of evidence is the Control Room Message at 12.53 hours on 10th January 1993 in which message from RAK-I-Mobile to the Control Room is, "on the spot, there is trouble going on between Hindus and Muslims. At Hari Masjid, firing is going on". The glib explanation of Bishnoi about this message is that the wireless operator might not have seen what exactly was going on and might have given incorrect report without verifying the true facts. In other words, according to Bishnoi, only he is true and every one else, was wrong because only he knew :9: the facts correctly. A tall order, even for a Deputy Commissioner of Police. 24.25 : This Police Station has the dubious distinction of having seen four grisly incidents of victims being hacked and their bodies being burnt or attempted to be burnt." 5) The aforesaid finding of the commission were based upon the evidence taken by the commission. The petitioner was also one of the eye witness to the incident which occurred at Hari Masjid and as regards the incident he had filed an affidavit affirmed on 12.4.1993 in lieu of his examination in chief. 6) A copy of the aforesaid affidavit has been placed on record and we find that the statement on oath made by the petitioner therein relate to some of the facts as stated by the petitioner in his complaint to the police dated 28.8.2006. 7) That when Srikrishna Commission report was published, there was an all around clamour for the acceptance of the said report by the State Govt. and for the implementation of the recommendations made. Many NGO.s took up the issue and since their grievances were not redressed to petitions came to be filed in the Hon’ble Supreme Court inter alia praying that the State :10: of Maharashtra should register the cases against the culprits. We are informed that the said petitions are still pending. 8) In this background, on 28.8.2006 the petitioner addressed a complaint to the Sr. Inspector of Police R.A.K. Marg Police Station. After stating all the facts as already mentioned hereinabove the petitioner made a request that this complaint should be treated as an F.I.R. and that the crime should be registered against the Police Inspector Nikhil Kapse and others for offences under Section 302 and 307 of the I.P.C. as well as for initiating false cases against the petitioner. Since no action was taken on his complaint, on 14.9.2006 a reminder was sent through an advocate and this reminder stated that if the crime was not registered then proceedings will have to be initiated before the higher court. On 4.10.2006, the petitioner sent a notice addressed to the Commissioner of Police, D.C.P. Zone-4 and the Sr. Inspector of Police, once again calling upon them to register the F.I.R. against the Police Inspector Nikhil Kapse and others in terms of Section-154 of the Cr.P.C. Since no action was taken on the complaint and the remainders, ultimately the petitioner filed the present petition on 15.8.2007. 9) By way of a reply, the State of Maharashtra filed an affidavit affirmed by the Dy. Commissioner of :11: Police Shri. D.T. Shinde, Detection-I, Crime Branch, on 18.9.2007. It was contended therein that after the Srikrishana Commission report two writ petitions came to be filed in the Supreme Court. Both were filed by N.G.O.s. Writ Petition No.527 of 1998 was filed by Action Taken Committee for implementation of Srikrishna Commission Report. The second Writ Petition No.542 of 1999 was filed by the Human Rights Union of Supreme Court’s Lawyers. That the prayers 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 found prima facie to be guilty by the said commission. Both these petitions were pending. That, in these petitions, a statement was made on 7.1.2000 on behalf of the State of Maharashtra that the State of Maharashtra shall refer the said report and conclusions of the said Commission to the Crime Branch, CID, Mumbai for further investigation and action in accordance with law. It was further clarified that the investigation and action to be taken would be uninfluenced by the Action Taken Report submitted by the concerned committee. Accordingly, the Govt. of Maharashtra vide its resolution dated 312.8.2000 constituted a Special Task force for further investigation and action in accordance with law with regard to possible offences concluded by the said Commission report. That thereafter, the Special Task Force scrutinized the entire material available with :12: them and also came to the conclusion that no criminal case could be registered against the respondent No.5. It was concluded that the respondent No.5 and its staff had carried out the firing in Hari Masjid while performing their duty. We are informed that these conclusions were contained in a report of the Additional Commissioner of Police Special Task Force dated 11.1.2001 and accordingly on 25.5.2001 an affidavit came to be filed in the Supreme Court of India placing these findings before the Apex Court. It was contended that a departmental enquiry was also initiated against respondent No.5 and after hearing the parties, the Commissioner of Police Mumbai concluded that the assertions and the allegations were not proved and therefore, respondent No.5 was exonerated in the departmental enquiry. It is submitted that the issue involved in the present petition was already subjudice before the Supreme Court where the aforesaid two writ petitions were pending for final hearing. It was therefore, contended that the present petition be dismissed in limine. It may be mentioned here that the affidavit filed by Mr.K.P.Raghuwanshi, who was a part of the task force is annexed to this affidavit. This affidavit encloses a chart disclosing the steps taken by the State Govt. against 31 police officers. As regards PSI Kapse we find that only statement made in this affidavit is that "after scrutiny of all the record and the case papers we find no criminal case can be :13: registered against him. However, for his certain lapses departmental enquiry has been initiated before the competent authority which is under progress". 10) During arguments a pointed question made to the learned prosecutor as to whether the Special Task Force had recorded the statements of any of the several injured eye witnesses to the Hari Masjid incident, we were informed that no such statements of eye witnesses were recorded. It appears to be common ground that these injured witnesses were sent for medical examination and the concerned doctor had treated all the said injured witnesses. The learned Public Prosecutor submitted that the Special Task Force only proceeded on the basis of the version given by the police witnesses. This, to us indicates a completely one sided investigation by the Special Task Force. It is difficult to countenance an investigation where the statement of none of the injured eye witnesses are recorded and which is confined to reaching a conclusion on the basis of the statements of the police officers who were present at the time of incident when the commission had prima facie indicted some of these officers of having committed serious offences. 11) The learned P.P. brought to our notice that in order to show their bonafides and an unpartisan view, the State of Maharashtra had issued a notification under :14: Section 6 of the Delhi Special Police Establishment Act 1946, on 17.2.2008, according their consent under Section 6 of the said Act for an enquiry/investigation by the C.B.I., into the entire incident as dealt with by the Srikrishna Commission Report Vol.II in Para-24.23 to 24.25 relating to Hari Masjid incident or in relation to the attempts, abatement and conspiracy in relation to or action in connection with the offence of the said case or any other offence committed in the said transaction or arising out the said facts. It is was contended by the learned P.P. Mr. Borulkatr that in view of the said consent, the State of Maharashtra was willing to handover the complaint of the petitioner filed on 28.8.2006 and other related papers to the C.B.I. It was contended that it was open to the C.B.I. to register the offence and to investigate into the matters in respect which consent was given. 12) However, on behalf of the C.B.I. an affidavit dated 9.8.2008 affirmed by Mr. R.S. Panwar, Additional S.P. C.B.I. came to be filed. Surprisingly the stand taken by the C.B.I. that it was not in a position to take up the investigation of this case because it was already over burdened with the investigation of other cases and due to acute shortage of man power resources. That it had a limited number of Investigating Officers who are already occupied with investigation of other cases. It was further contended that the matter is more :15: than 15 years old and involves simple investigation.That, as per the information supplied by the State Govt., Case No.17 of 1993 registered in respect of the incident of rioting at Hari Masjid has already been investigated by the local police and the accused have also been charge sheeted. In that case, the present petitioner has also been named as an accused and was being tried in the competent court It was contended that the State of Maharashtra has got specialised agencies like ATS, STF, State CID and Crime Branch which are competent and are resourceful enough to investigate this case. It was contended that the petitioner has not made out any reason as to why the investigation of the said case should not be entrusted to any of the aforesaid special agencies of the State of Maharashtra. It was contended that merely because consent was accorded by the State of Maharashtra under Section 6 of the Delhi Special Police Establishment Act, it does not become a mandatory statutory duty of C.B.I. to carry out the investigation in the said case. It was contended that there was considerable delay for lodging of the complaint in question. 13) It may be stated at this stage that by an order passed by this court in this writ petition on 17.6.2008 the counsel for the petitioner were asked to meet four legal issues as framed by this court. The counsel for the C.B.I. as well as P.P. however, conceded that :16: since there was notification issued under Section 3 of the DSPE Act empowering the C.B.I. to investigate the case under Section 302 of the I.P.C. and since there also existed notification extending the jurisdiction of the C.B.I. to State of Maharashtra and a consent notification issued by the State of Maharashttra under Section 6, it was not necessary to answer these issues specifically. It was also fairly conceded by all counsel that in several cases both the High Courts and the Supreme Court had issued directions to the C.B.I. to take over investigation. Our attention was brought to several cases in which such directions were granted by this court in exercise of powers under Section 226 and to the fact that in pursuance of which directions C.B.I. had taken up such investigation without any special sanction /approval from the Union of India and had concluded such investigations and filed charge sheets. This position was also supported by the counsel for the petitioner and hence we find that there is no necessity to decide these preliminary legal issues. 14) It is true that merely because the State of Maharahstra has issued a notification under Section 6 of the DSPE Act,1946, it would not be necessarily be mandatory on the C.B.I. to take up the investigation of the case. However, in the present case the C.B.I. has given specific reasons as to why it cannot take up the investigation notwithstanding the consent granted by the :17: State of Maharashtra. We do not find substance in any of the reasons given by the C.B.I. in this regard. We find this to be a case which involves public interest. The background in which this case arose was communal disturbances in the city of Mumbai in which hundreds of people lost their life and property . The complaint alleges action targeted against the Muslim s by particular political parties. It also alleges illegal action on the part of the police force. It is contended that the complaint has been filed by the petitioner after gross delay on 28.8.2006.We however, find that this is a case where the delay in filing the complaint has to be viewed in the backdrop of events. We find that the present complainant was a witness before the Srikrishna Commission and had made similar allegations in an affidavit which he filed before the Srikrishna Commission on 12.4.1993. The affidavit made on 12.4.1993 contained some common facts as stated in the complaint dated 28.8.2006. We find that as regards the Hari Masjid incident, in its report dated 16.2.1998 the Srikrishna Commission, on the basis of analysis of evidence which included evidence of several eye witnesses inclusive of certain police officers and others documentary evidence such as wireless messages, concluded that the firing by the police including Sub Inspector Kapse was unjustified and that the said officer was not only guilty of unjustified firing but also inhuman and brutal behaviour during the incident. :18: We find that Special Task Force formulated to re-investigate this matter did not actually fully reinvestigate the matter but confined itself to statements of the police officers. Admittedly, the statements of the injured eye witnesses including the petitioner were not recorded. The said task force has therefore, proceeded to give a clean chit to its police officers without taking into account the independent material which