IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1256    OF 2011 (Arising out of SLP (Crl) 1971 of 2010)

Noorul Huda Maqbool Ahmed … Appellant

Versus

Ram Deo Tyagi & Ors     … Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

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.

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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 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 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  

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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  

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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  

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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.

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7. Shri Pradhan appearing on behalf of the private person launched a  

scathing attack on the order of discharge as well 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 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 nothing but a myth.  Shri Pradhan  

was at pains to point out that the situation was 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 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 Mohammedans 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  

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mob had come on the streets breaching the curfew order.  He pointed out  

that there 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  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 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  

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  that  all  this  was  not  possible  unless  there  was  a  

common object on the part of the police personnel 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  

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some persons of the police force who may not have fired a single bullet, it  

was enough to rope them in with 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 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 enter the Suleman bakery.  Shri Pradhan,  

therefore, firstly suggested a common intention and argued that the act of  

entering, by itself, was sufficient to hold 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  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 and everything was calm  

and quiet,  would be a travesty of  facts.   Shri  Lalit  pointed out  that  the  

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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  

teaching  lesson  to  a  particular  community.   He  suggested  that  the  

members  of  the  picket  and,  more  particularly,  Ingale  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 fact gone there on account of the wireless message.  He further  

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 and did not fire a single bullet, there was no question  

of  attributing any motive to such personnel.   On the other hand, these  

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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 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 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  it  was  an  admitted  

position that the riots in the two communities were going on from 6th to 10  

December 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 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 the Joint Commissioner of Police (Crime), Greater  

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Bombay and  that  all  the  other  accused were  Inspector  of  police,  Sub-

Inspector of Police, Police Constables etc.  It was also an admitted position  

that  Shri  Anant  Keshav Ingale accused No.17 (before Sessions Judge)  

was then attached to Pydhonie police 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  Nagare  In-

Charge  of  the  picket  with  Anant  Keshav  Ingale  (A-17  before  Sessions  

Court).   Regarding the said gun shots 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 bullets or cartridges were  

traced near about the picket and no injury was caused to 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 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 police  

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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 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 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 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 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  

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injury 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 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 Ingale 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 Ingale and API 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.   

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 was nothing but a façade 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  given  before  the  

Commission of Inquiry.  When we see the application under Section 227  

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and especially by the first 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/policemen were injured.  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  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 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  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.  It is pointed out that the Commissioner of  

Police, therefore, left 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  

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prosecution  witness  Ajit  Deshmukh,  it  is  further  pointed  out  that  the  

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  Ingale  (A-17  before  

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 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  that  no  prosecution  

should  be initiated  against  R.D.  Tyagi  (A-1 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 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  

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pointed out that the information was got verified on the other police picket  

and that 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, 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 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  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 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  

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breach the curfew by coming on the road and by making women as their  

shields and there was constant exhortation at the instance of miscreants  

and they were  encouraging people  to 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.  The Trial Court has rightly relied on  

the decision of this Court in T.T. Antony v. State of Kerala  [AIR 2001 SC  

2637], wherein it is held that the observations and findings in the report of  

the Commission are only meant for the information of  the Government.  

Acceptance of  the report  of  the Commission by the Government  would  

only suggest that being bound by the Rule of law and having duty to act  

fairly,  it  has endorsed to  act  upon it.   It  was  further  observed that  the  

investigation agency may with advantage make use of the report of the  

Commission in its onerous task of investigation bearing in mind that it does  

not  preclude  the  investigation  agency  from  forming  a  different  opinion  

under Section 169/170 Cr.P.C. of Cr.P.C. if  the evidence obtained by it  

supports such a conclusion.  However, the Courts were not bound by the  

report of the finding of the Commission of Inquiry and the Courts have to  

arrive  at  their  own  decision  on  the  evidence  placed  before  them  in  

accordance with law.  The Trial Court has also relied on Kehar Singh &  

Ors. v.State (Delhi Administration) AIR 1988 SC 1883 to hold that the  

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report of the Commission referred the consideration of the government and  

it  is  the  opinion  of  the  Commission  based  on  the  statement  of  the  

witnesses and other material but has no evidentiary value in the criminal  

case.  The Trial Court then proceeded to examine the prima facie case and  

relied  on  the  wireless  message  given  by  Anant  Keshav  Ingale  to  the  

control room and the arrival of R.D. Tyagi in pursuance of the message  

along with the team.  The whole message was then quoted by the Trial  

Court from which the Trial Court came to the 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, R.D. Tyagi ordered squad to break open the door  

and apprehend the miscreants.  The Trial Court then went on to accept the  

police report to suggest that 7 of the accused persons did not fire a single  

bullet.  From this, the Trial Court came to the conclusion that though the  

police officers were in possession of 638 rounds, some of them fired from  

1 to 7 rounds while some others did not fire a single round.  The Court also  

relied on the statement of the inmates and came to the conclusion that the  

policemen did not enter with the intention to kill  the inmates.  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 Trial Court has also  

analyzed the orders issued by R.D. Tyagi to break open the doors and  

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came to the conclusion that he was justified in directing the doors to be  

broken  open.   The  Trial  Court  also  relied  on  the  statement  of  Ajit  

Deshmukh API who was an inured police officer and ultimately came to the  

conclusion that there was no question 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.  It is on this basis that the Trial Court came to the  

conclusion that if even after the entry same accused persons did not fire a  

single  bullet,  they  were  clearly  acting  in  discharge  of  their  duties  and,  

therefore,  they were entitled to the protection under Section 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.  Consideration was also made to the fact that the persons  

who died had died only of gun shot injuries and that accused had not fired  

a single bullet.  

12. The High Court also referred to the scope of revisional jurisdiction as  

also the scope of Section 227 Cr.P.C. The High Court relied on State of  

Maharashtra v. Priya Sharan Maharaj & Ors. [AIR 1997 SC 2041] and  

the observations made in paragraph 8 to the following effect:

“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  

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the Court is required to evaluate the material and documents  on record with a view to finding out if the facts emerging there  from 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 stage 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.”

The Court  also  referred  to  the  observations  made in  Yogesh @  

Sachin Jagdish Joshi v. State of Maharashtra [2008 (10  )SCC 394]:  

“16. 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.”

13. A very relevant observation has thereafter been made by the High  

Court  that  the  truthfulness  of  the  statements  or  circumstances  or  

documents of the prosecution is not questioned by the defence.  Then the  

High Court proceeded to consider the scope of Section 34, IPC as also the  

scope of Section 47 (2) of the Cr.P.C.  The High Court then considered the  

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scope of alternative argument made by the revisional Court that the matter  

should  be  remanded  for  adding  new  charges  under  Section  111,  IPC  

under Section 442 read with Section 111 and 113 of  IPC against  R.D.  

Tyagi and the other accused who were discharged.  Ultimately, the High  

Court rejected the argument and, in our opinion, rightly so.  Even Section  

107 was referred by the High Court.  In that the High Court rightly came to  

the conclusion that the acts of R.D. Tyagi (A-2 before the High Court) and  

other respondents did not fall  under Section 107, IPC as neither of  the  

three requirements under Section 107 was fulfilled. Even Shri Pradhan did  

not press that point before us.

14. We, after seeing the depth at which Shri Pradhan argued the matter,  

invited Shri Pradhan to justify the application of Section 34, IPC particularly  

on the part of accused No.1 and those who did not fire a single bullet.  

Considering the question of firstly breaking open of the door there can be  

no dispute that there is nothing on record to suggest that everything was  

alright with the Suleman bakery and that there was huge disturbance going  

on from the precincts of the same.  There can also be no dispute 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.  In our  

opinion, therefore, the accused No.1 was perfectly justified in directing the  

breaking open of the front doors of Suleman bakery.  We have examined  

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the record ourselves which suggest that the police personnel had directed  

the  opening  of  the  door  but  the  same  were  not  being  opened.   Shri  

Pradhan was fair  enough to admit  that there were  persons in Suleman  

bakery.  His only contention is that they were not committing any mischief.  

From the material  on record,  it  was  clear  that  the missiles  were  being  

thrown at the police inasmuch as API Shri Deshmukh was actually injured  

and there is material to support that in that situation when after breaking of  

the doors the police men entered and yet some of the policemen did not  

fire the bullets, they certainly could not be clothed with common intention.  

In our opinion, the Trial Court as well as the revisional Court have already  

taken the view that there could be no common intention shared on the part  

of those who did not even fire a single bullet.  Shri Pradhan also saw the  

hollowness  of  the claim of  the prosecution that  these accused persons  

could be roped in with the aid of Section 34, IPC.  He, therefore, argued  

that the assembly of the police at least till the time they break open the  

door was lawful object as it was their duty but they should not have broken  

open  the  door  and  trespassed  the  Suleman bakery  and  all  those  who  

entered Suleman bakery formulated an unlawful assembly as they illegally  

trespassed  into  the  Suleman  bakery  since  A-1  herein,  Shri  Tyagi  had  

ordered them to break open the doors even he was a part of that unlawful  

assembly who had the common object.  Now the question is whether this  

assembly could be called an unlawful assembly.  There can be no dispute  

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that they 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 by Shri Pradhan that the  

riots were undoubtedly going on.  We outrightly reject  the claim of Shri  

Pradhan  that  everything  was  calm  and  quiet  and  yet  the  SOS  came.  

There was no reason for the Trial Court and the revisional court and even  

for us to believe that the SOS squad came on its own without there being  

any  apprehension  of  the  further  troubles.   Those  apprehensions  are  

apparent enough in the wireless message on which the Trial Court wholly  

relied on and, in our opinion, rightly.  Therefore, there is no point in holding  

that the SOS itself was an unlawful assembly.   

15. Further question is the object of  the SOS.  A wild argument was  

addressed that the SOS were out to teach lesson to the rioters.  There is  

absolutely  no  material  about  the  same.   Shri  Tyagi  had  no  reason  

whatsoever to be inimical towards a particular community merely because  

he belonged to a different community.  There is no material on record to  

suggest  that  any  of  the  SOS  personnel  had  any  personal  agenda.  

Therefore, till  that point of time at least there can be no question of the  

assembly being unlawful.  Again if the first accused directed the breaking  

open of the door, he had solid reason behind it.  It was his job and duty to  

quell the riots and to control the rioters.  In pursuance of that he ordered  

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the breaking open of the door.  In our opinion, he was perfectly justified in  

doing so.  If he had ordered the SOS to break open the order, there was  

no alternative  for  them but  to  break  open the  door.   Therefore,  in  the  

breaking open the door he did not commit any illegality.  Once the doors  

were broken up they had to enter.  Therefore, the entry could not 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.  If some of the members did not fire a single shot, could it be said  

that they had a common object of killing the people much less innocent  

people?  Those who fired the bullets and caused the death, whether that  

act will amount to murder is entirely a different question.  That will have to  

be established on the basis of the evidence that they had specific agenda  

for doing so or they had the intention to do so or that they acted in excess  

of their powers, that is purely a matter of evidence.  But in case of those  

who did not fire a single shot, it had to be said that they had the common  

objection or that the common object of intention of killing them.  After all,  

the police who entered were risking their own lives.  There is evidence on  

record to suggest that  the miscreants were not the mute bystanders or  

were hiding there without doing any mischief.  Under such circumstance, if  

in that volatile situation also some of the personnel did not fire a single  

bullet  could they be made vicariously  liable  for  the act  of  some others  

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which acts are also not shown to be with a common object of killing the  

people? The answer would have to be in the negative.  Therefore, in our  

opinion, there was no question of there being an unlawful assembly and  

any act having been committed by the respondent in pursuance of that  

common object.  Whether there was an object on the part of others to fire  

and kill the mob inside is to be examined by the Trial Court.  But insofar as  

the present  respondents  are concerned, not  firing a single  bullet  would  

certainly take them out of the prosecution area.  We do not agree that on  

that account they could not be discharged.  In fact, the Trial Court and  

revisional  Court  have  not  relied  only  on  that  circumstance.   That  

circumstance  has  been  considered  in  the  light  of  other  attending  

circumstances and, therefore, we do not find any reason to take a different  

view than the one which has been taken by the High Court.  

16. Shri Lalit tried to argue about the Bombay Police Act.  However, Shri  

Pradhan  has  not  gone  to  that  aspect  and  it  is  unnecessary  for  us  to  

consider the effect of Section 161 of the Bombay Police Act.  We find that  

on  merits  itself  it  cannot  be  said  that  there  was  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.  

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17. Shri  Pradhan,  however,  contended  that  there  was  lot  of  material  

against the accused persons about their having actively taken part in the  

incident  and  in  support  of  his  contention  he  took  us  through  a  few  

statements of the witnesses recorded under Section 161 Cr.P.C.  They are  

statements of Shri Abdul Sattar Suleman Mithaiwala,  Abdul Wafa Khan  

Habibullah  Khan,  Mohd.  Kutubuddin  s/o  Mohd.  Musa  Siddiq,  Hasan  

Razakudin Mohd, Gulam Mohd.  Farukh Shaikh, Abdulla Abul Kasim and  

the  appellant  himself.   Besides  these,  Shri  Pradhan also  relied  on  the  

statements of Sabre Alam Jamaluddin Balwor,  Mohd. Hussain Aulad Ali  

Dafali,  Mohd. Islam Mohd. Kuddus Shaikh, Budul  Abdul Latif  Khan and  

Mohd. Rafiq s/o Mahebook Ali.  We have carefully gone through all these  

statements.  Barring the first statement, all the statements have come by  

way of additional documents attached to the rejoinder.  All the statements  

appear to be of the residents of the Madarsa.  Significantly enough, in no  

statement  any  specific  act  on  the  part  of  any  of  the  respondents  is  

mentioned.  Generally, it is mentioned in the statements that the persons  

concerned  heard  shouting  of  policemen  who  were  shouting  Darwaja  

Kholo, Darwaja Kholo (open the door) and were also asking Hathiyar Khah  

Chhupa hai (where is the weapon hidden).  In the statement of Abdul Wafa  

Khan Habibullah Khan it is mentioned “one of the policemen pressed the  

rifle’s nozzle under the chick and shouted ‘sabko maar dalo’ but the other   

policemen stopped him from doing so”.  The description in the statements  

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is that some persons were shot dead by the police.  In all the statements  

the act of shooting and killing is attributed to the police without identifying  

them.  Some of these statements are of those who were injured.  In short,  

in all the statements, the only act attributed to the police who entered the  

Suleman bakery was of firing at the persons and inmates 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 by beating by rifle butts etc.  All the statements referred  

to  the  order  of  the  police  to  take  out  the  hidden  weapons.   We have  

expressed earlier and even at the cost of repetition, we may mention that  

indeed no weapon was found in Suleman bakery but that does not solve  

the problem because Shri  Lalit  explained to us in great details  that  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.  We put a specific query to Shri  

Pradhan as to whether there appeared even a single statement against  

respondent No.1 herein or respondent No.9 herein.  Shri Pradhan was fair  

enough to admit  that  there was  no specific  act  attributed either to Shri  

Tyagi (respondent No. 1 herein) or Shri Ingale (respondent No.9 herein).  

In  short,  the  statements,  even  if  they  were  to  be  believed  completely,  

would only provide material against those who actually fired the gun shots.  

Under  such circumstances,  if  admittedly  the  respondents  did  not  fire  a  

27

single bullet, it cannot be said that they had a common object to kill the  

innocent insiders in Suleman Bakery or the Madarsa and Mosque attached  

thereto.   We are quite convinced that 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.

18. Shri Pradhan then claimed that if after reading the evidence if some  

material is found against some others, then the complainant should have  

the  liberty  to  apply  for  action  under  Section  319  Cr.P.C.   It  would  be  

speculative on our part to say anything on this matter.  It will  be for the  

Trial  Court to consider any such application, if  made, on its  own merit.  

There will be no question of giving liberty for that purpose. No other points  

were argued.

19.  Under the circumstances, we do not find any merit in this appeal  

and proceed to dismiss the same.  The appeal is dismissed.

                         ……………………… ……J.

[V.S. Sirpurkar]

…………………………J.

[T.S. Thakur]

New Delhi

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July 04, 2011

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