Noorul Huda Maqbool Ahmed vs Ram Deo Tyagi And Others

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.

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 3 area 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 4 the 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 5 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.

19. Under the circumstances, we do not find any merit in this appeal and proceed to dismiss the same. The appeal is dismissed.