1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.357/2003 Noorul Huda Maqbool Ahmed, Aged about 40 years, of Bombay Indian inhabitant, residing at 62, Memonwada Road, 2nd floor, Mumbai – 400-003 Applicant Vs. 1] The State of Maharashtra through Public Prosecutor Criminal Side, High Court, Bombay 2] Ram Deo Tyagi, residing at 82,Poornima Co-op.Hsg. Society, 63/A,Sir Pochkhanwala Road, Worli,Mumbai. 3] Lahane Bhagwan Vyankatrao, Gamdevi Police Station, Compound,2nd Floor, Mumbai. 4] Sawant Subhash Namdeo, E-704,Gokul Horizan Jivlapada , Kandivali(East), Mumbai -400 101 5] Santosh S.Koyande, B-59, 5th Floor ,Sewree Police Reay Road, Mumbai 400 010. 2 6] Chandrakant B.Raut, G-19,Naigaon New Police Lane, G.D.Ambedkar Road, Mumbai-400 011. 7] Anil Narayan Dhole, Bldg.No.68,2027,Pantnagar, Ghatkopar (East), Mumbai-400 075 8] Sastishkumar B.Naik, 3/5 ,Saikripa Chawl, Savarkar Nagar, Mitbunder Road, Thane (East). 9] Ganesh Bhaskar Satwase, D/1 ,Sector No.5, Torna CHS, Kandivali (W) Mumbai -400 067. 10] Anant Keshav Ingale, Police Officers’ Quarters, Sussex Road, Byculla, Mumbai- 400 027. Respondents Mr.Vijay Pradhan, Mr.Y.H.Muchhala Sr.Advocates a/w Mr.Sagheer Ahmed, Mr.A. Khan Farooq A.Chaudhary, Mr.Javed Patel,Mr.Akhlaque Solkar and Mr.Vaibhav Nagrekar i/b Mr.Sagheer Ahmed for the Applicant Mr.Shrikant Shivde ,Advocate for Res.no.2 Mr.M.K.Kocharekar,Advocate for Res.no.3 & 10 Mr.S.V.Kotwal, Advocate for Res.nos.4 to 9 Mr.Y.S.Shinde,APP for State CORAM: MRS.MRIDULA BHATKAR,J. RESERVED ON : 12th October,2009 PRONOUNCED ON :16th October,2009. 3 J U D G M E N T . Heard finally by consent of both the parties. 1] This matter is the offshoot of the 1993 communal riots in Mumbai. On 9/1/1993 the riots were at peak in Mumbai and on that day at around 9.30 a.m.the police officers from Payadhuni police station noticed bullet shots were fired towards them from the terrace of Suleman Bakery . The Bakery is adjacent to the mosque and in the same building on the upper floor there is Mothersa .The police warned the miscreants on the terrace of Suleman Bakery to stop the firing,however, it went on intermittently . The Police Inspector from Payadhuni police station reported this incident to the Control Room and asked for the help. One wireless van came to the spot and also noticed some shots were fired from the building of Soleman Bakery . On receipt of wireless message to the Control Room Jt. Commissioner of Police Mr.R.D.Tyagi went to the spot alongwith the team of the Special Operation Squad (SOS) . Mr. Tyagi who is accused no.1 in the present case ordered to use the cylinders of tear gas and asked the miscreants to surrender . However, it was of no use. The persons in the bakery pelted bottles , acid bulbs and stones 4 towards the police force . Mr.Tyagi thereafter ordered the squad to enter the bakery . However, the door of the bakery was bolted from inside and it was not opened even after the police asked them to open. Mr.Tyagi thereafter directed the police force to break open the door of the bakery and directed the police to arrest the miscreants . The police while arresting the people opened fire and 12 persons got injured and 8 persons succumbed to death due to bullet injuries. The police could not recover any fire arm except swords and sticks. 2] Thereafter Mr.Tyagi left the place. The complaints were lodged after the riots against the tyrants for bias and one sided action of the police which resulted into the enquiry by the One Man Commission i.e. Shrikrishna Commission. The police were held responsible in certain cases and the State of Maharashtra after accepting the report of the Commission decided to take action and launched prosecution against the police officers who had taken the law in hand. The present matter is one of them. 5 3] The State has lodged the complaint against 18 police personnels for the offences punishable u/s 302 and 307 r/w section 34 of the Indian Penal Code . In Sessions Case (no.1171/2001) all the 18 accused moved application for discharge under section 227 of the Criminal Procedure Code and the learned Sessions Judge while deciding the application by his order dated 16/4/2003 discharged the present respondents and rejected the application of the remaining accused. The State of Maharashtra did not challenge the said order , however, the private party i.e. Victim has challenged this order and hence this Revision Application. 4] The learned counsel Shri.Pradhan has submitted that at the time of discharge the learned Sessions Judge ought to have appreciated that all the police personnels of SOS were inside the building and had common intention to kill the defenceless persons. The learned Sessions Judge has erred in not appreciating a set of statements of the witnesses in which they have stated that they were beaten up with the butt of the rifles and with the kicks and fists. These acts of assault ought to have been taken into account by 6 the learned Sessions Judge. The order given by respondent no. 2 Mr.Tyagi to break open the door of the Bakery is an act violative to his authority, power and if he would not have taken such a drastic steps the further disaster of murders would not have taken place. 5] The learned counsel Mr. Pradhan has further argued that the Trial Judge has erred in weighing and appreciating the evidence at the stage of discharge and the Judge has erred in classifying the accused in two groups as the one who fired bullets and the other who did not. Such distinction cannot be made at this embrio stage. The learned Sessions Judge did not appreciate the statements of the victims in proper perspective that giving orders to break open the door by respondent no.2 ,the Jt.C.P. was illegal ,instigating and it reflects the intention of the accused. The learned counsel has further submitted that there was no need to break open the door of Suleman Bakery when everything was peaceful and not a single firearm was found in the bakery.He has further submitted that the learned Trial Judge is wrong in holding that section 34 of the Indian Penal Code is not applicable. The learned 7 counsel in support of his submissions relied on :- 1] State of Delhi Vs.Gyan Devi and others , (2000) 8 Supreme Court Cases ,239 . 2] Rajbir Singh Vs.State of U.P.and another (2006) 4 Supreme Court Cases ,51. 6] The learned counsel Mr.Pradhan has submitted that at the stage of discharge the Court should not look into the documents of the defence in addition to the case of the prosecution and also cannot seek independent corroboration at the stage of framing of charge. On this point he relied on :- 1] Sopan Namdeo Hadke Vs. The State of Maharashtra, 1985 Cri.L.J. 1642 . 2] State of Maharashtra Vs. Priya Sharan Maharaj and others ,AIR 1997 Supreme Court, 2041. 3] Kamal Singh Vs.Resham Singh and another, 1991 Cri.L.J. 1114 7] Per contra the learned counsel appearing for all the respondents have submitted that as per the case of the prosecution on 9/1/1993 at 9.30 a.m. there was firing and throwing of bottles and acid bulbs from Suleman Bakery . In the whole city the riots 8 were going on and it was necessary for the police to control the riots. It was further submitted that the police appealed the persons in the building to surrender. Though respondent no.2 gave directions to the police to break open the door he specifically told them to arrest the miscreants in the bakery and use minimum force. Learned counsel Mr.Shivade for respondent no.2 has argued that the act of respondent no.2 was in consonance with a performance of his duty and no offence can be made out. It was further argued that the doctrine of vicarious liability has limited scope in the Criminal Jurisprudence. Holding the respondents guilty for any of the offences will amount to attract the vicarious liability for the offence of murder u/s 302 and attempt to commit murder u/s 307 of the Indian Penal Code is not permissible under the Criminal Law. . 8] On the point of section 226 and 227 of the Criminal Procedure Code the learned counsel Mr.Shivade relied on following rulings of the Hon’ble Supreme Court and High Courts. 1] State of Karnataka Vs.L.Munniswamy, 1977 Cr.L.J.1125 . 2] Satish Mehra V/s Delhi Administration and 9 another 1996 SCC (Cri) 1104. 3] Dattatray Samant V/s State of Maharashtra 1982 Cr.L.J.1025. 4] Gulabchand Chandak V/s State of Maharashtra (1991) 4 B.C.R.536. 5] State of Maharashtra Vs.Som Nath Thapa , AIR 1996 (SC) 1744. 9] This application is preferred by the private party invoking the jurisdiction of the High Court under section 401 of the Criminal Procedure Code. The High Court is supposed to use the revisional powers only if the order of the subordinate Court suffers from illegality or perversity. 10] At the stage of entertaining the application for discharge u/s 227 of the Criminal Procedure Code the Court cannot analyse or disect the evidence of the prosecution and defence or the points of possible cross examination of the defence. The case of the prosecution presented before the Court is to be accepted as it is. The Hon’ble Supreme Court in State of Maharashtra Vs. Priya Sharan Maharaj and others ,AIR 1997 Supreme Court, 2041 in paragraph-8 of the Judgment has observed as follows. 10 “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 therefrom 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 state 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. In Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra (2009 ) 1 Supreme Court Cases (Cri) 51 it is observed in paragraph 16 by the Hon’ble Supreme Court as follows. “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 .” 11 11] In the case of direct participation , sufficient evidence is obviously on the surface, but in the matter of indirect participation the Judge needs to take a microscopic view while ascertaining the circumstantial evidence. If at all there is direct evidence showing the indirect participation then the person cannot be discharged. It is also true that the prosecution is to be given a chance to unfold its evidence and the matter cannot be shut at the threshhold . 12] On this background the order of the Sessions Court is to be tested. The truthfulness of none of the statements or circumstances or the documents of the prosecution is questioned. To attract section 34 one has to find out whether there is an act done in furtherance of the common intention or not. The intention is said to be common, means it is shared. The intention in the mind of the one should be known to the others. Thus, it should be necessarily followed by the prior concert. The case of the prosecution even if it is accepted entirely as true the evidence does not reveal that the intention to murder or attempt to commit murder was present when respondent no.2 gave orders 12 to break open the door of the Bakery . 13] My attention was drawn by the learned counsel for the applicant to the power of arrest under section 47(2) of the Criminal Procedure Code which contemplates “the arrest without warrant by breaking open the door or window is permitted only in good faith. ” Good faith can be ascertained on the basis of the prevailing circumstances. It is true that not a single fire arm was seized by the police in their search . This circumstance itself cannot nullify good faith behind giving orders and taking search and arrest. The statements of the witnesses disclose that there were incidents of intermittent firing of some bullet shots from the terrace of the Bakery . The entire area was charged with hostile emotions between Hindu-Muslim communities and the atmosphere was full of tension and distrust. Under such circumstances the order to break open the door was very much within the power of the respondent no.2.The statements of the witnesses disclose that Respondent no.2 ordered to arrest the criminals and use the minimum force. The other respondents though armed with the weapons 13 did not use the firearms which exhibits their discretion ,restrain and non participation. Under such circumstances the Trial Judge has rightly classified the police on the basis of use of the firearms and held that section 34 is not applicable 14] During the course of the arguments the learned counsel for the applicants introduced a fresh limb of arguments that the order of the learned Sessions Judge be quashed and set aside and the matter be remanded back as the prosecution intends to add new charges under section 111 of the Indian Penal Code and/or under section 442 r/w section 111, 113 of the Indian Penal Code against respondent no.2 and also other accused who were discharged. The learned counsel has pointed out that if the words spoken or any reaction of the accused is such that he wished to convey by words to his co-accused and expected immediate reaction in a particular manner by the co-accused , then that action is to be considered as instigation or incitement. Reliance was placed on 1] In re Irala Palle Ramiah and others AIR 1957 Andhra Pradesh 231 in which it is held that - 14 “ The crux of the problem in an enquiry of this sort is whether the abettor as reasonable man at the time of his instigation or intentionally aiding the principal would have foreseen the probable consequences of his abetment. “ 2] Prem Narain Vs.The State ,AIR 1957 Allahabad 177. 15] At the time of framing of the charge it is not binding on the Judge that he should confine himself to the charges mentioned in the police report submitted under section 173 of the Criminal Procedure Code. The Judge should apply his mind and consider independently whether the offences as per the charges mentioned in the chargesheet are in fact committed or not . The material presented in the chargesheet whether discloses any other offence than the charges mentioned in the chargesheet. In the present case one has to see whether there is sufficient evidence to frame the charge of abetment . The prosecution wants to add the charges of house trespass punishable u/s 111 of the Indian Penal Code and/or under section 442 r/w section 111 and 113 of the Indian Penal Code, and also u/s 302 ,307, r/w section 115 of the Indian Penal Code.The 15 Learned Counsel for the respondents opposed the said prayer as no such charge can be framed. 16] The defining clause of the abetment is section 107 of the Indian Penal Code. Considering the orders given and the orders obeyed by the respondents accused the acts of respondent no.2 and other respondents do not fall under section 107 of the Indian Penal Code as neither of the three requirements u/s 107 is fulfilled. In order to bring the offence under section 111 of the Indian Penal Code first an abetment in the act should exist. Giving order to break open the door cannot be labelled as the abetment. Moreover, entering the bakery and obeying the orders by police is not a criminal trespass. The incident cannot be considered in isolation but with the prior events which also a part of the record. The Jt. Commissioner of Police/ respondent no.2 was in the jeep. This staying away from the closed premises of the Bakery where the massacre of the innocent persons had taken place , was illegal omission or not ? Even by microscopic view the intentional non- doing is not disclosed. A fact of presence while performing the duty the spot is not sufficient to 16 attribute the respondents a status of confederates . 17] The learned Trial Judge has rightly observed that the firing in the Bakery was unnecessary. Indeed, it was a cruel and attrocious act on the part of the police. In the case of the communal riots a humane and sensitive approach is expected. However, it should be within the legal frame work. Howsoever be the serious or heinous offence, an innocent cannot be put to a trial. There is no sufficient evidence against respondent no.2 and other respondents that they either had common intention to murder the inmates in the Bakery or have committed or abetted the offence of criminal trespass . The order of the learned Trial Judge is just and legal and warrants no interference. In the result the Revision Application is dismissed. (Mrs.Mridula Bhatkar,J.) 17 S/-