# NOORUL HUDA MAQBOOL AHMED v. RAM DEO TYAGI & ORS

- **Citation:** [2011] 7 S.C.R. 782
- **Court:** Supreme Court of India
- **Decided:** 2011-07-04
- **Case number:** Criminal Appeal No. 1256 of 2011
- **Bench:** V.S. Sirpurkar, T.S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/noorul-huda-maqbool-ahmed-v-ram-deo-tyagi-ors-27861
- **Pages:** 28

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973
1c
s. 227-Application for discharge-Mumbai riotsSuleman Bakery incident of 9.1.1993-Miscreants from
rooftop of Suleman Bakery firing shots and pelting stones,
bottles and acid bulbs towards police picket set up opposite
to it-Wireless message sent to control room-Joint
0
Commissioner of Police (R-1) reached the spot with Special
Operations Squads and ordered to arrest the miscreants-In
the process twelve persons got injured and eight died-After
roits subsided, Commission of Inquiry set up on complaints
against police force - In the instant case, FIR lodged against
18 police personnel for offences punishable ulss. 302134 an(f '
E 307134-They filed application for their discharge-Trial court
ordered discharge of the nine respondents - High Court
confirmed the order in revision-Held: The miscreants were
firing from the rooftop of Suleman Bakery - The trial court
relied on the statements of the inmates and held that the
F police did not enter the building with the intention to kill the
inmates - Even after the entry some of the policemen did not
fire a single bullet, they were clearly acting in discharge of their
duty and, therefore, entitled to the protection u/s 161 of the
Bombay Police Act - The trial court found that there was no
G justifiable case against the police officials who even in the
volatile situation did not open fire at all - The High Cou,rt also
examined the truthfulness of the statements and the
documents and rejected the revision against the order of
discharge passed by the trial court - In the circumstances,
H
782
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
783
TYAGI & ORS.
there is no reason to take a different view than the one which
A
has been taken by the High Court - Bombay Police Act -
s.161.
Criminal Law:
Criminal trespass - Common intention - Common object
B
- Mumbai riots -Suleman Bakery incident - Miscreants firing
from the rooftop ofthe building at the police picket - Wireless
message sent to control room - Joint Commissioner of Police
reached the spot with Special Operations Squads (SO) -
Ordered to arrest the miscreants - When in spite of orders,
C
door of building was not opened by inmates, door ordered to
be broken open - In the process, twelve persons got injured
and other eight succumbed to injuries - HELD: It cannot be
disputed that situation in Mumbai on 9.1.1993 was extremely
volatile - This. was evident from the very existence of picket D .
in front of Suleman Bakery- Miscreants were firing at police
,picket - Wireless message was sent to Control room and on
that basis SOS led by Joint Commissioner of Police (R-1)
reached the place - When orders to open the door of the
building were not paid any heed, R-1 was perfectly justified
E
in directing to break open the front door of the building and
the police personnel had to enter - Therefore, entry could not
. amount to trespass or criminal trespass - There cannot be
· any dispute that the members of SOS had duty to quell the
riots - Therefore, SOS cannot be said to be an unlawful
F
assembly - ·Under such circumstances, if in that volatile
situation some of the police personnel did not fire a single
bullet, they cannot be made vicariously liable for the acts of
some others which acts are not shown to be with a common
intention or common object of killing the people - The trial G
court and the revisional court have rightly taken the view that
there could be no cbmmon intention shared on the part of
those who did not fire a single bullet.
Commission of Inquiry:
H
784
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
Report of Commission - Evidentiary value of - HELD:
The 'observations and findings in the report of the
Commission are only meant for the information of the
Government - The courts are not bound by the finding of the
Commission of Inquiry and they have to arrive at their own
B decision on the evidence placed before them in accordance
with law.
In December 1992 and January 1993, communal riots
erupted in the city of Mum

## Text

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A
8
[2011] 7 S.C.R. 782
NOORUL HUDA MAQBOOL AHMED
v.
RAM DEO TYAGI & ORS.
(Criminal Appeal No. 1256 of 2011)
JULY 04, 2011
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973
1c
s. 227-Application for discharge-Mumbai riotsSuleman Bakery incident of 9.1.1993-Miscreants from
rooftop of Suleman Bakery firing shots and pelting stones,
bottles and acid bulbs towards police picket set up opposite
to it-Wireless message sent to control room-Joint
0
Commissioner of Police (R-1) reached the spot with Special
Operations Squads and ordered to arrest the miscreants-In
the process twelve persons got injured and eight died-After
roits subsided, Commission of Inquiry set up on complaints
against police force - In the instant case, FIR lodged against
18 police personnel for offences punishable ulss. 302134 an(f '
E 307134-They filed application for their discharge-Trial court
ordered discharge of the nine respondents - High Court
confirmed the order in revision-Held: The miscreants were
firing from the rooftop of Suleman Bakery - The trial court
relied on the statements of the inmates and held that the
F police did not enter the building with the intention to kill the
inmates - Even after the entry some of the policemen did not
fire a single bullet, they were clearly acting in discharge of their
duty and, therefore, entitled to the protection u/s 161 of the
Bombay Police Act - The trial court found that there was no
G justifiable case against the police officials who even in the
volatile situation did not open fire at all - The High Cou,rt also
examined the truthfulness of the statements and the
documents and rejected the revision against the order of
discharge passed by the trial court - In the circumstances,
H
782
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
783
TYAGI & ORS.
there is no reason to take a different view than the one which
A
has been taken by the High Court - Bombay Police Act -
s.161.
Criminal Law:
Criminal trespass - Common intention - Common object
B
- Mumbai riots -Suleman Bakery incident - Miscreants firing
from the rooftop ofthe building at the police picket - Wireless
message sent to control room - Joint Commissioner of Police
reached the spot with Special Operations Squads (SO) -
Ordered to arrest the miscreants - When in spite of orders,
C
door of building was not opened by inmates, door ordered to
be broken open - In the process, twelve persons got injured
and other eight succumbed to injuries - HELD: It cannot be
disputed that situation in Mumbai on 9.1.1993 was extremely
volatile - This. was evident from the very existence of picket D .
in front of Suleman Bakery- Miscreants were firing at police
,picket - Wireless message was sent to Control room and on
that basis SOS led by Joint Commissioner of Police (R-1)
reached the place - When orders to open the door of the
building were not paid any heed, R-1 was perfectly justified
E
in directing to break open the front door of the building and
the police personnel had to enter - Therefore, entry could not
. amount to trespass or criminal trespass - There cannot be
· any dispute that the members of SOS had duty to quell the
riots - Therefore, SOS cannot be said to be an unlawful
F
assembly - ·Under such circumstances, if in that volatile
situation some of the police personnel did not fire a single
bullet, they cannot be made vicariously liable for the acts of
some others which acts are not shown to be with a common
intention or common object of killing the people - The trial G
court and the revisional court have rightly taken the view that
there could be no cbmmon intention shared on the part of
those who did not fire a single bullet.
Commission of Inquiry:
H
784
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
Report of Commission - Evidentiary value of - HELD:
The 'observations and findings in the report of the
Commission are only meant for the information of the
Government - The courts are not bound by the finding of the
Commission of Inquiry and they have to arrive at their own
B decision on the evidence placed before them in accordance
with law.
In December 1992 and January 1993, communal riots
erupted in the city of Mumbai. Police pickets were set up
C in sensitive areas. One such area was Suleman Bakery
in close vicinity of a Mosque and a Madarasa. The area
fell within Dongri Police Station and the police picket was
set up diagonally opposite to Suleman Bakery, in the area
of Pydhonie Police Station. The case of the respondents
police personnel was that on 9.1.1993, some miscreants
D started firing at the police picket from the terrace of
Suleman Bakery, unhindered by the warnings from the
police. Ultimately, a police officer from Pydhonie Police.
Station reported the incident to the Control Room and
asked for help. Respondent no. 1, the Joint
E Commissioner of Police, reached the spot with a team of
Special Operations Squads (SOS). The persons in. the
Suleman Bakery continued to pelt bottles; acid bulbs and
stones towards the police. Respondent no. 1, therefore,
ordered the squad to enter the bakery and finding the
F door bolted from inside and the inmates of building not
opening the door, ordered to break open the door and
arrest the miscreants. The door was broken open and in
the process 12 persons got injured and 8 died. An FIR
was lodged against 78 miscreants who were involved in
G the incident of 9.1.1993. 70 persons were shown as
absconding and the remaining persons were charged for
offences punishable u/ss 143, 147, 149, 307, 120-B, 325,
327 IPC as also under the Arms Act. After the riots
subsided, complaints were lodged against the police
H force. Ultimately, a Commission was set up which found
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
785
. ..
TYAGI & ORS:
.
that ·in some incidents including the instant one, the
A
police used more, than necessary force. The State
Government lodged prosecutions against erring police
personnel. In the instant case also an FIR was registered
for offences punishable u/ss 302/34 and 307/34 IPC and
ultimately a charge-sheet was filed against 18 police
B
personnel. The accused police personnel . fil.ed
application for their discharge u/s 227 CrPC which
resulted in discharge of respondents nos. 1 to 9. The
appellant challenged the order in a revision petition
before the High Court, which upheld the order. c
-Aggrieved, the revision petitioner filed the appeal.
Dismissing the appeal, the Court
HELD: 1. There can be no dispute that the FIR lodged
against the police personnel heavily relies on the
D
evidence given before the Commission of Inquiry. The
trial court has rightly relied on· the decision of this Court
in T. T. Antony's* case wherein it is held that the
observations and findings in the report of the
Commission are only meant for the information of the
E
Government. However, the courts are not bound by the
.finding of the Commission of Inquiry and they have to ·
arrive at their own decision on the evidencaplaced before
them in accordance with law. [para 10-11] [798-F-G; 801B-C]
F
*T. T. Antony v. State of Kera/a 2001 (3) SCR 942 = AIR
2001 .SC. 2637; Kehar Singh & Ors. v. State (Delhi
Administration) 1988 (2) Suppl. SCR 24 = AIR 1988 SC
1883 - relied on.
2.1. It cannot be disputed and was not really disputed
that the situation in Bombay on 9.1.1993 was extremely
volatile. The material available suggests that the
miscreants were trying to breach the curfew by coming
G
on the road and by making women as their shields and · H
786
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A there was constant exhortation at the instance of. -
miscreants and they were encouraging people to come
on the road to breach the curfew. The very existence of
the picket .in front of the Suleman Bakery ~nd the
conversation from the picket to the control room at the
B Pydhonie Police Station would give the idea as to how
grim the situation was. [para 11] [800-G-H; 801-A-B]
2.2. The trial court relied on the wireless message
given by A-17 to the control room and the arrival of
respondent no.1 along with the team, and came to the
C conclusion that there was firing from the roof top of the ·
Suleman Bakery and the door was closed from inside
and inspite of the repeated orders, the inmates refused
to open the door and, therefore, respondent no.1 ordered
the squads to break open the door and apprehend the
D miscreants. The trial court accepted the police report that
7 of the accused persons did not fire a single bullet. The
court also relied on the statement of the inmates and held
that the policemen did not enter with the intention to kill
the inmates. The trial court held that the SOS had not
E made any pre-arranged plan of opening fire and killing
. the innocent persons and thus s.34 IPC was not
attracted. It is on this basis that the trial court came to the
conclusion that if even after the entry some accused
persons did not fire a single bullet, they were clearly
F acting in discharge of their duties and, therefore, they
were entitled to the protection u/s 161 of the Bombay
Police Act. The trial court found that there was no
justifiable case against the police officials who even in the
volatile situation did not open fire at all. The High Court
G also referred to the scope of revisional jurisdiction as also
the scope of s.227 Cr.P.C. and observed that the
truthfulness of the statements or circumstances or
documents of the prosecution is not questioned by the
defence. [para 11-13] [801-E-H; 802-A-G; 803-G-H]
H
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
787
TYAGI & ORS.
State of Maharashtra v. Priya Sharan Maharaj & A
Ors.1997 (2) SCR 933 = AIR 1997 SC 2041; Yogesh @
Sachin Jagdish Joshi v. State of Maharashtra 2008 (6)
SCR 1116 =2008 (10) SCC 394 - referred to.
3.1. Considering the question of firstly breaking open
8
of the door, there can be no dispute that there was huge
disturbance going on from the precincts of the Suleman
bakery. From the material on record, it was clear that the
missiles were being thrown at the police inasmuch as the
API was actually injured. There can also be no dispute
C
about the fact that wireless messages were sent and on
the basis of that, the action was taken by the SOS which
was being led by respondent No.1. The record suggest
that the police personnel had directed the opening of the
door but the same were not being opened. Therefore,
respondent No.1 was perfectly justified in directing the
D
breaking open of the front doors of Suleman Bakery.
[para 14) [804-C-F]
3.2. Once the doors were broken up, the police
personnel had to enter. Therefore, the entry could not
E
amount to trespass. A trespass becomes a criminal
trespass if it is with an intention to annoy or to do
something illegal which is not the case here. There was
no question of the so-called entry amounting to criminal
trespass. [para 15] [806-B-C]
F
4. There can be no disp_ute that the respondents
were all the members of the SOS and had the duty to quell
the riots. They were not doing anything illegal in coming
out and trying to control the riots. There is also no
dispute that the riots were undoubtedly going on. There
G
was no reason for the trial court and the revisional court
and even for this Court to believe that the SOS squad
came on its own without there being any apprehension
of further troubles. Those apprehensions are apparent
enough in the wireless message on which the trial court
H
788
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A wholly relied on and, in the opinion of this Court, rightly.
Therefore, it cannot be said that the 505 itself was an
unlawful assembly. There is evidence on record to
suggest that the miscreants were not the mute
bystanders or were hiding there without doing any
9 mischief. Under such circumstance, if in that volatile
situation also some of the personnel did not fire a single
bullet, they cannot be made vicariously liable for the act
of some others which acts are also not shown to be with
a common object of killing the people.· Therefore, there
c was no question of there being an unlawful assembly or
any act having been committed by the respondent in
pursuance of its common object. The trial court as well
as the revisional court has already taken the view that
there could be no common intention shared on the part
0 of those who did not even fire a single bullet. In the
circumstances, there is no reason to take a different view
than the one which has been taken by the High Court.
[para 14-15) [805-C-F; 806-E-H; 807-A-B]
5.1. On merits itself it cannot be said that there was
E any prima facie case against these respondents who had
not fired a single bullet and who were thoroughly acting
in pursuance of orders of their superiors and were doing
their duty. [para 16) [807-C]
F
5.2. As regards the statements of witnesses recorded
u/s 161 CrPC, all the statements appear to be of the
residents of the Madarasa. Significantly enough, in no
statement, any specific act on the part of any of the
respondents is mentioned. In all the statements, the only
act attributed to the police who entered the Suleman
G Bakery was of firing at the inmates and other persons and
some of the inmates dying due to that. There is not a
single statement identifying those policemen who fired or
suggesting that those who did not fire committed any
other mischief of beating etc. All the statements referred
H
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
789
TYAGI & ORS.
to the order of the police to take out the hidden weapons.
A
Indeed no weapon was found in Suleman Bakery but the
weapons could have been easily removed_ as the
buildings there were so connected that one could easily
run away from Suleman Bakery through connected
rooftops of the other buildings. Admittedly, there was no
B
specific act attributed either to respondent No. 1 or
respondent No.9. In the circumstances, if admittedly the
respondents did not fire a single bullet, it cannot be said
that they had a common object to kill the persons in
Suleman Bakery or the Madarsa or the Mosque attached c
thereto. The trial court and the revisional Court were not
wrong in relying on this very material circumstance that
none of the respondents, though armed, fired a single
bullet. [para 17] [807-F-H; 808-B-H]
Case Law Reference:
. 2001 (3) SCR 942
relied on
para 11
1988 (2) Suppl. SCR 24 relied on
para 11
1997 (2) SCR 933
referred to
para 12
2008 (6) SCR 1116
referred to
para 12
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1256 of 2011.
From the Judgment & Order dated 16.10.2009 of the High
Court of Bombay in Criminal Appeal No. 357 of 2003.
D
E
F
Vijay Pardhan, U.R. Lalit, Huzefa Ahmadi, Javed Rashi
Patel, Garima Kapoor, Ejaz Maqbool, Suwadi, Rajiv Tyagi,
Shrikant Shivade, Shivaji M. Jadhav, Prashant B., Amit Mittal,
G
Chinmoy Khaladkar and Sanjay V. Kharde (for Asha Gopalan
Nair) for the appearing parties.
The Judgment of the Court was delivered by
H
790
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A
V.S. SIRPURKAR, J. 1. Leave granted.
2. The order passed by the Bombay High Co1,1rt confirming
the order passed by the Additional Sessions Judge, Greater
Bombay allowing the discharge application preferred by
8 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),
Salish Kumar B. Naik (A-15), Ganesh Bhaskar Satvase (A-16)
and Anant Keshav lngale (A-17) is in challenge here. Against
C 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.
D
3. It has to be noted that the aforementioned discharge
order by the Trial Court was not challenged before the High
Court by the State of Maharashtra and in fact they chose to
support the order. Even before us on a specific plea having
E been made, the learned counsel appearing for the State of
Maharashtra has chosen to support both the orders by the Trial
Court as well as the High Court.
4. The city of Mumbai, which is otherwise known to be a
F 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
G 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
H Chuna Bhatti Mosque. It is an admitt~d position that Suleman
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
791
TYAGI & ORS. [VS. SIRPURKAR, J.]
Bakery, the Mosque as also the Madarasa came within the
A
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 area of Pydhonie Police
Sfation, seeing that some miscreants were firing at the picket
B
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. c
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
0
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
E
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
F
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 the team
could not recover any fire arm except swords and sticks.
G
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.
H
792
SUPREME COURT REPORTS
[2011] 7 S:C.R.
A 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
B 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
c Criminal Procedure Code. The Sessions Judge dischargea 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
0 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 Counsel appearing
for the appellant Shri Vijay Pradhan, we must also note a few
E 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 lngale 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
F 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
G 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
H 25.5.2001. It is on the basis of the statement of one Mirza
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
793
TYAGI & ORS. [V.S. SIRPURKAR, J.]
Azamtullah Beg. On the basis of this FIR, subsequent
A
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
B
was then challenged before the High Court and was confirmed
by the same.
7. Shri Pradhan appearing on behalf of the private person
launched a scathing attack on the order of discharge as well
C
as the confirming order passed by the High Court. 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 not fired a single bullet. As regards the
respondent No.1, the contention was that he was the leader of
the team who had gone to quell the riots. According to Shri
D
Pradhan, in fact, there was absolutely no reason for the SOS
firstly to go in front of the Suleman bakery as the story, that there
was stone pelting throwing of glass bottles and firing from the
terrace of the Suleman bakery, was i'fothing but a myth. Shri
Pradhan was at pains to point out that the situation was
E
perfectly under control and there was no evidence to suggest
that the coming on the scene of the SOS was in any manner
warranted. Shri Pradhan further argued that if at all there was
any wireless message sent from the picket to the Pydhonie
Police Station, it was absolutely .a false message because
F
there was no question of firing from the Suleman bakery,
particularly, on the backdrop of the fact that the team which
entered Suleman bakery did not find any firing arm or
ammunition. The contention raised was that admittedly all the
persons alleged to be hiding in Suleman bakery were
G
Mohamm.edans and the Special Operations Squad wanted to
teach a lesson to the Mohammedans who were held up in the
Suleman bakery. Shri Pradhan pointed out that there was a
complete curfew and it is not as if the unruly mob had come on
the streets breaching the curfew order. He pointed out that there
H
794
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A were number of persons admittedly studying in Madarsa who
were innocent Mohammedan students. 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
B nothing but an act of revenge against the Mohammedans. Shri
Pradhan also took us in great details through the topography
of the area as also the inside details of Suleman bakery. He
argued that there was a single staircase for going above the
ground floor of the Suleman bakery and the ground floor itself
c was a small area. He, therefore, suggested that the presence
of so many persons in the ground floor was not possible. He
further pointed out that the staircase was so narrow that only
one person could have at a time gone up and there was no
scope for so many persons to go up. From this, he derived an
0
argument that the team which entered after breaking open the
front doors had gone up and then shot dead 8 defenceless
persons and also injured others. Therefore, Shri Pradhan was
at pains to point out that all those injured had suffered bullet
injuries. From this, he extended his argument further suggesting
E that all this was not possible unless there was a common object
on the part of the police per$onnel to teach lesson to the
innocent members of Muslim community. He further pointed out
that there was nothing which justified the wanton and mindless
firing. He urged that some persons of the police force who may
not have fired a single bullet, it was enough to rope them in with
F the aid of Section 34 or 'Section 149, IPC as the whole
assembly had turned illegal in firstly breaking open the doors
without any purpose and then going up and firing at the
defenceless persons hiding in Suleman bakery. Shri Pradhan
very strenuously argued that merely because respondent No.1
G had not entered the shop, it does not absolve him at all as he
was the leader of the SOS and had to take the full responsibility.
He pointed out that in fact there was no reason for respondent
No.1 to come on the spot at all and then to order his team to
break open the doors and to en.ter the Suleman bakery. Shri
H Pradhan, therefore, firstly suggested a common intention and
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
795
TYAGI & ORS. [V.S. SIRPURKAR, J.]
argued that the act of entering, by itself, was sufficient to hold
A
that those accused who entered were participants in crime. In
that view, Shri Pradhan argued that the mere fact that they did
not fire was not a relevant factor. He alternatively argued that
at any rate this was an unlawful assembly again on account of
Clause thirdly of Section 141 of IPC and hence all the
8
discharged accused persons were the members of the unlawful
assembly and had to be at least charged and inquired into by
the Courts below.
8. Replying this Shri U.R. Latit, learned senior counsel
pointed out that to suggest that the situation was under control
C
and everything was calm and quiet, would be a travesty of facts.
Shri Lalit pointed out that the situation was extremely tense and
a wireless message was sent from the picket in front of the
· bakery to Pydhonie Police Station. Shri Lalit argued that the
whole police force could not be attributed with the motive of D
teaching lesson to a particular community. He suggested that
the members of the picket and, more particularly, lngale who
sent the message had full idea of the topography since he was
able to see himself the whole situation prevalent in Suleman
bakery and its terrace from the building which was opposite
Suleman bakery. He pointed out that the picket was set up only
to quell the violence and the very existence of the picket was a
pointer to the fact that everything was not calm and quiet and
under control in that area which is predominantly a Muslim area
and which was a greatly disturbed area. Shri Lalit pointed out
that by no stretch of imagination could the SOS be called an
unlawful assembly as their very duty was to establish peace.
He further pointed out that it is not as if respondent No.1 had
carried the SOS without any reason or justification. He had in
E
F
fact gone there on account of the wireless message. He further
G
pointed out that insofar as respondent No.1 is concerned, there
was hardly any question of his having entertained any motive
to teach lesson to the Muslim community. Insofar as others who
entered the building, Shri Lalit pointed out that if even under
. that explosive situation the police personnel did not use weapon
H
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[2011] 7 S.C.R.
A and did not fire a single bullet, there was no question of
attributing any motive to such personnel. On the other hand,
these police personnel even at the risk of their own lives had
chosen to enter the building. Shri Lalit said that on the basis of
the evidence available, the entry into the Suleman bakery by
8 breaking the locks was fully justifiable. He further pointed out
that the topography was such that the miscreants could have
easily run away with the guns and ammunition as the building
there are connected to each other and it was very easy for the
miscreants to escape with ammunition. From all this, Shri Lalit
C pointed out that the discharge order passed by the Trial Court
and confirmed by the High Court was perfectly justified.
9. It is on this basis that we have to examine the respective
claims. We must at this point consider the First Information
Report and its contents. A close scrutiny therein suggests that
D it was an admitted position that the riots in the two communities
were going on from 6th to 10 Decr::mber again started on 6th
January and subsided only on 16th or 17th January. 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
E 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 also
mentioned in the FIR that the Special Operations Squads were
formed by the police and that respondent No.1 at that time was
F the Joint Commissioner of Police (Crime), Greater Bombay
and that all the other accused were Inspector of police, SubInspector of Police, Police Constables etc. It was also an
admitted position that Shri Anant Keshav lngale accused No.17
(before Sessions Judge) was then attached to Pydhonie police
G station and all the accused were attached to Special
Operations Squads. The FIR describes the topography of
Suleman bakery as also of the mosque which is called Chuna
Bhatti and the Madarsa called Darul Uloom. The FIR says
about the firing at the picket and the conversation between ASI
H Nagare In-Charge of the picket with Anant Keshav lngale (A-
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
797
TYAGI & ORS. [V.S. SIRPURKAR, J.]
17 before Sessions Court). Regarding the said gun shots
A
coming from the direction of the terrace of the Suleman bakery,
though it asserts that there was no record regarding any
untoward incident which allegedly commenced at 9.30 and went
on for three hours, it is pointed out that no buliets or cartridges
were traced near about the picket and no injury was caused to
B
anybody. The FIR then refers to the wireless message from the
picket to Pydhonie police station about firing as also 'the
information communicated to respondent No.1, R.D. Tyagi by
the control room about the firing. It also refers to the
conversation on the part of respondent No.1 referring to a man c
with a stengun being present It is mentioned that the said
stengun man was neither caught nor the stengun was
recovered. The FIR also refers to the further orders issued by
respondent No.1 to enter the bakery after breaking open the
front doors. The FIR then makes a reference to the Dongri
0
police station and also refers to the FIR lodged against 78
persons arrested by SOS. Specific mention is also made in
the FIR that 10-15 persons escaped with weapons and the
attempts on their part to commit murder rioting etc. There is a
specific reference made in the FIR CR No. 46 of 1993. There
is then a reference made to the further investigation conducted
E
by one P.I. Patil. Then a reference is made to the report of
Justice Srikrishna. It is further mentioned that Anwar Ali Mohd.
Islam, a witness examined by the Commission received injury
by gun shot. A reference is made to the dialogue between the
police personnel regarding the hidden weapons. A reference
F
is also made to the evidence of Mohd. Qutubuddin, Noorul
Huda and Abdul Wafa Hahibulla Khan etc. who have deposed
before the Commission regarding the entry of the police into
Suleman Bakery. It is then mentioned in the Panchnama that
seven empties and two live cartridges were recovered from the
G
place of offence which were fired by the miscreants. An
assertion is then made that no fire arms were recovered during
the Panchnama. A reference is then made to the injuries
· suffered by the· 8 dead persons. A reference is made to the
observation that it was impossible for 78 persons to fit
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[2011] 7 S.C.R.
A themselves in the bakery building. Then it was impossible for
17 persons to break into the bakery and catch hold of the 78
persons. It is also pointed out that in the topography, it is clearly
mentioned that the entire version is exaggerated and incapable
of taking place. It was pointed out that not a single serious injury
B was sustained by any member of the SOS nor was there any
injury by the fire arm. It is also mentioned that it was impossible
for the miscreants to escape with fire arms as there was no
way of escape from the mosque. It is then mentioned that the
entire FIR No.CR 46 of 1993 recorded with the Dongri Police
c station is a got up document in attempting to justify the death
of nine persons caused by them. It is also mentioned further
that Anant Keshav lngale could not have been at the picket at
9.30 as the entry at the station diary made at 12.45 p.m. on
9.1.93 at Pydhonie police station shows that lngale and API
0 Jadhav left police station at 10.20 a.m. and he was no where
near the Suleman bakery until about 12.45 p.m. A reference is
made to the record of the Commission, the FIR and the
Panchnama in Dongri Police Station Cr. No.46 of 1993 and
the material collected in that crime.
E
10. Motives are attributed then to the accused persons that
they took undue advantage of the authority given to them and
abused the power to cause the death of 9 innocent persons.
Heavily relying on this FIR, Shri Pradhan pointed out that the
prosecution on the basis of the FIR in Dongri Police Station
F was nothing but a fa9ade created by the police for screening
themselves and justifying the firing in Suleman bakery. There
can be no dispute that the FIR heavily relies on the evidence
g_iven before the Commission of Inquiry. When we see the
application under Section 227 and especially by the first
G accused, it is pointed out therein that in those riots more than
1500 persons had lost their lives and also the property of crores
of rupees was damaged. 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/
H policemen were injured. It was also pointed out that
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
799
TYAGI & ORS. [V.S. SIRPURKAR, J.]
sophisticated fire arms and other lethal bombs were used by
A
the violent mob and the police officers had to make Herculean
efforts to bring the situation under control and that the police
were relentlessly targeted by the violent mob. A detail reference
has been made to the Dongri, Pydhonie, Nagpada and
Agripada police stations which are predominantly Muslim areas
B
and were communally hypersensitive. The application further
refers to the bombs being hurled at police in the firing directed
at them. About 9th January, it is specifically contended that the
Commissioner of Police and the respondent No.1 were
patrolling the concerned area. The situation grew extremely c
volatile and explosive, particularly, in the areas of the four
aforementioned police stations and, therefore, a wireless .
· message was given to the Commissioner that almost a civil
war type situation had arisen and in fact it was thought of
handing over of the area to the military. ft is pointed out that
0
the Commissioner of Police, therefore, le~ the area to attend
a meeting while respondent No.1 reached along with the SOS
while prosecution witness Ajit Deshmukh continue to patrol the
area in Pydhonie. Relying on the statement of prosecution
witness Ajit Deshmukh, it is further pointed out that the
E
miscreants were challenging from the roof top of Suleman
bakery. It also refers to one round being fired towards the SOS
when they were alighting from the vehicle. A reference is also
made to the shot being returned by Ajit Deshmukh in self
defence from his service revolver. Reference is also made to
the observations made by Anant Keshav fngale (A-17 before
F
Sessions Court) from above a shop and also confirming that
the miscreants were using automatic fire arms and three
persons carrying revolvers. A reference is then made to the
entry which was based mainly on the further fact that the witness
Deshmukh sustained injury on his left hand as he was hit with
G
a hard object like glass bottle and it was that circumstance that
door was ordered to be broken. A reference is made to the
three injured persons who had jumped and also the further
investigation against those who were taken into custody. The
reference is made to the recommendation in the Commission
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SUPREME COURT REPORTS
(2011] 7 S.C.R.
A that no prosecution should be initiated against R.D. Tyagi (A1 herein) as he had acted in discharge of his official duty. In
his application, Shri R.D. Tyagi had taken a defence of acting
in discharge of his duties. It was also pointed out that the
accused did not go on his own but in response to a wireless
B call and on arrival he faced a gun shot and fire at witness Ajit
Deshmukh. It was further mentioned that R.D. Tyagi had also
reported about having seen the arm carrying miscreants on the
rooftop of Suleman bakery. It is also pointed out that the
information was got verified on the other police picket and that
c respondent No.1 herein had taken full precaution and had
issued warnings to miscreants at Suleman bakery and asked
them to surrender and when this did not yield any results, the
bakery was ordered to be broken open by force. It is also
pointed out that Ajit Deshmukh was also hit hard by missile and,
0 therefore, the operation had to be done without there being any
alternative. It is on this basis that the application was moved.
By way of legal submissions, it was urged that there was
already an FIR lodged at the Dongri police station about the
happenings in Suleman bakery, therefore, there could be no
second FIR in respect of the same incident. Section 161 of the
E Bombay police Act was also pressed in service. Section 197
was also pressed in service, particularly, in respect of Shri R.D.
Tyagi. The Civil Service Rules were also pressed in service to
suggest that he could not now be proceeded after his
retirement which took place in the year 1997. Almost to the
F same effect with a little difference were the other applications
made by accused Nos. 2 to 18.
11. It cannot be disputed and was not really disputed by
Shri Pradhan that the situation in Bombay on 9.1.1993 was
G extremely volatile though Shri Pradhan insisted everything was
calm and quiet on account of the curfew. It is not possible to
come to that conclusion at least on the basis of the material
available which suggests that the miscreants were trying to
breach the curfew by coming on the road and by making women
H as their shields and there was constant exhortation at the
NOORUL HUDA MAQBOOL AHMED v. RAM DEO
801
TYAGI & ORS. [V.S. SIRPURKAR, J.]
instance of miscreants and they were encouraging people to
A
come on the road to breach the curfew. A very existence of the
picket in front of the Suleman bakery and the conversation from
the picket to the control room at the Pydhonie police station
would give the idea as to how grim the situation was. We have
also carefully seen the Trial Court's order.