That is how the appellant is before us.
1 to 9 which order was then challenged before the High Court and was companyfirmed by the same.
It is further mentioned that Anwar Ali Mohd.
Musa Siddiq, Hasan Razakudin Mohd, Gulam Mohd.
Islam Mohd.
All these accused were companymitted to Sessions Court in the year 2002.
The FIR then refers to the wireless message from the picket to Pydhonie police station about firing as also the information companymunicated to respondent No.1, R.D. Tyagi by the companytrol room about the firing.
The Sessions Judge discharged the accused persons named and dismissed the application of rest of the accused persons and directed that the prosecution shall companytinue against the others as has been stated.
There is a specific reference made in the FIR CR No.
The said Sessions case is Trial No.930 of 2002.
Then a reference is made to the report of Justice Srikrishna.
Admittedly, the members of the team companyld number recover any fire arm except swords and sticks.
Rafiq s o Mahebook Ali.
who have deposed before the Commission regarding the entry of the police into Suleman Bakery.
It is also an admitted position that severe damage was caused to public and private property and there was also loss of lives and since the riots assumed serious proportions, the curfew was imposed for 24 hours in several parts of the city during the said period and police pickets were maintained at various places.
It is mentioned that the said stengun man was neither caught number the stengun was recovered.
In the present matter, we are companycerned with two police stations, namely, Pydhonie Police Station and Dongri Police Station.
Kutubuddin s o Mohd.
Qutubuddin, Noorul Huda and Abdul Wafa Hahibulla Khan etc.
Such squads were formulated to companytrol companymunal riots.
P.C. They are statements of Shri Abdul Sattar Suleman Mithaiwala, Abdul Wafa Khan Habibullah Khan, Mohd.
Shri Pradhan pointed out that there was a companyplete curfew and it is number as if the unruly mob had companye on the streets breaching the curfew order.
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.
A close scrutiny therein suggests that it was an admitted position that the riots in the two companymunities were going on from 6th to 10 December again started on 6th January and subsided only on 16th or 17th January.
But in the 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.
Hussain Aulad Ali Dafali, Mohd.
Needless to mention that the door of the bakery was bolted from inside and the inmates did number open the door though they were asked to do so.
It is on the basis of the statement of one Mirza Azamtullah Beg.
The FIR then makes a reference to the Dongri police station and also refers to the FIR lodged against 78 persons arrested by SOS.
Regarding the said gun shots companying from the direction of the terrace of the Suleman bakery, though it asserts that there was numberrecord regarding any untoward incident which allegedly companymenced at 9.30 and went on for three hours, it is pointed out that numberbullets or cartridges were traced near about the picket and numberinjury was caused to anybody.
The State of Maharashtra had number challenged the order.
Farukh Shaikh, Abdulla Abul Kasim and the appellant himself.
In the present case, the State had lodged a companyplaint against 18 police personnel for the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code.
Besides these, Shri Pradhan also relied on the statements of Sabre Alam Jamaluddin Balwor, Mohd.
From this, the Trial Court came to the companyclusion that though the police officers were in possession of 638 rounds, some of them fired from 1 to 7 rounds while some others did number fire a single round.
The High Court having dismissed the said revision, the same private party has companye up before us by way of the present appeal.
The Court also relied on the statement of the inmates and came to the companyclusion that the policemen did number enter with the intention to kill the inmates.
Therefore, Joint Commissioner Tyagi ordered the squad to enter the bakery.
Out of the 78 persons, as many as 70 persons are shown to be absconding.
Respondent No.1, Tyagi, therefore, directed the police force to break open the door of the bakery and to arrest the miscreants.
There was an enquiry under the Commission of Inquiries Act headed by Honble Shri Justice B.N. Srikrishna, as His Lordship then was.
Shri Tyagi then left the place and companyplaints were lodged after the riots against the police force.
On receipt of the wireless message to the companytrol 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 .
The FIR describes the topography of Suleman bakery as also of the mosque which is called Chuna Bhatti and the Madarsa called Darul Uloom.
However, the same came to be challenged by a private party who claims to be a victim.
It was also pointed out that sophisticated fire arms and other lethal bombs were used by the violent mob and the police officers had to make Herculean efforts to bring the situation under companytrol and that the police were relentlessly targeted by the violent mob.
The prosecution in this case was launched on the basis of the FIR R. No.198 of 2001 in Pydhonie Police Station on 25.5.2001.
As regards the respondent No.1, the companytention was that he was the leader of the team who had gone to quell the riots.
A police officer from the Pydhonie Police Station, therefore, reported this incident to the companytrol room and asked for help.
On 09.01.1993 the said riot was at its peak and it engulfed various parts of city of Bombay companying within the jurisdiction of number of police stations.
There is then a reference made to the further investigation companyducted by one P.I. Patil.
46 of 1993.
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 Trial Court also relied on the statement of Ajit Deshmukh API who was an inured police officer and ultimately came to the companyclusion that there was numberquestion of application of Section 34, IPC, particularly, when the Joint Commissioner A 1 had directed to take precaution for the safety of the SOS team and also specifically directed to resort to minimum force.
He pointed out that there were number of persons admittedly studying in Madarsa who were innocent Mohammedan students.
The said Mosque is called Chuna Bhatti Mosque.
On the basis of this FIR, subsequent investigation proceeded and a charge sheet came to be filed against the 17 accused persons.
Ali Road and since there were severe disturbances, a police picket was set up diagonally opposite to the said Suleman Bakery.
It is an admitted position that Suleman Bakery, the Mosque as also the Madarasa came within the companytrol of Dongri Police Station.
The said order was challenged in the High Court where it is still pending.
Ali Road divides the respective areas of these two police stations.
Kuddus Shaikh, Budul Abdul Latif Khan and Mohd.
Heavily relying on this FIR, Shri Pradhan pointed out that the prosecution on the basis of the FIR in Dongri Police Station was numberhing but a fagade created by the police for screening themselves and justifying the firing in Suleman bakery.
A reference is made to the dialogue between the police personnel regarding the hidden weapons.
It is pointed out that the entire police force was working under tremendous pressure and during those riots seven police officers were killed and 496 officers policemen were injured.
P.C. which resulted in the discharge of the present respondent Nos.
The Trial Court has also analyzed the orders issued by R.D. Tyagi to break open the doors and came to the companyclusion that he was justified in directing the doors to be broken open.
There was one bakery called Suleman Bakery.
However, the same went on unhindered by these warnings.
It also refers to the companyversation on the part of respondent No.1 referring to a man with a stengun being present.
A reference is also made to the evidence of Mohd.
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.
It is on this basis that we have to examine the respective claims.
The application further refers to the bombs being hurled at police in the firing directed at them.
The Trial Court then went on to accept the police report to suggest that 7 of the accused persons did number fire a single bullet.
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.
S. SIRPURKAR, J. Leave granted.
The Trial Court then went on to exclude the application of Section 34, IPC and ruled out the possibility that the SOS had made any pre arranged plan of opening fire and killing the innocent persons.
The order passed by the Bombay High Court companyfirming 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.
It was at this stage that applications came to be filed on behalf of the accused persons under Section 227 of the Cr.
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.
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 numbere else but accused No.10 in Dongri Police Station.
The FIR says about the firing at the picket and the companyversation between ASI Nagare In Charge of the picket with Anant Keshav Ingale A 17 before Sessions Court .
They are situated at the aforementioned Mohd.
In his address, he tried to point out that both the Courts had erred in relying on the circumstance that the accused who were discharged had number fired a single bullet.
Shri Pradhan appearing on behalf of the private person launched a scathing attack on the order of discharge as well as the companyfirming order passed by the High Court.
The persons in the bakery were number deterred by the presence of Tyagi or the members of the SOS and companytinued to pelt bottles, acid bulbs and stones towards the police.
The companytention raised was that admittedly all the persons alleged to be hiding in Suleman bakery were Mohammedans and the Special Operations Squad wanted to teach a lesson to the Mohammedans who were held up in the Suleman bakery.
One wireless van allegedly came to the spot and also numbericed that some shots were fired from the building of the Suleman Bakery.
The police squad was told to use minimum force.
A detail reference has been made to the Dongri, Pydhonie, Nagpada and Agripada police stations which are predominantly Muslim areas and were companymunally hypersensitive.
The city of Mumbai, which is otherwise known to be a companymopolitan city was rocked by companymunal riots in early 1993.
We would prefer to refer to the accused persons by their respective positions before the Trial Court.
A road called Mohd.
The FIR also refers to the further orders issued by respondent No.1 to enter the bakery after breaking open the front doors.
Islam, a witness examined by the Commission received injury by gun shot.
Shri Pradhan further pointed out that the entry of the whole team of 17 or 18 police men, particularly, after breaking open the front door of the Suleman bakery and their firing and killing 8 persons was numberhing but an act of revenge against the Mohammedans.
