REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1376  OF 2010 (Arising out of S.L.P. (Crl.) No. 6477 of 2009)

The State of Maharashtra              .... Appellant (s)

Versus

Farook Mohammed Kasim Mapkar  & Ors.     .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) This  appeal  is  directed  against  the  final  judgment  

and order dated 18.12.2008 passed by the High Court of  

Judicature at Bombay in Criminal Writ Petition No. 1437  

of  2007  whereby  the  High  Court  directed  the  State  of  

Maharashtra  to  handover  the  complaint  of  Farook  

Mohammed Kasim Mapkar-Respondent No. 1 herein dated  

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28.08.2006  to  the  Central  Bureau  of  Investigation  (in  

short ‘the CBI’), to register a case in respect of the incident  

dated  10.01.1993  near  Hari  Masjid,  Mumbai,  and  to  

investigate the same.

3) After the demolition of Babri Masjid on 06.12.1992,  

communal   riots   occurred   in   various  parts  of  the  

country  including  Mumbai.  At  the  material  time,  

Respondent  No.2  was  the  PSI  attached  to  R.A.K.  Marg  

Police Station, Bombay.  On 10.01.1993, Respondent No.2  

and his  staff,  while  on patrol  duty,  received a  message  

from Wireless Control Room that a mob of 2000 to 2500  

people armed with deadly weapons is resorting to rioting  

and  arson  near  Hari  Masjid,  Sewree,  Bombay.  

Respondent No. 2 rushed to the site and found that the  

mob had become violent and destroying vehicles and other  

properties and setting up fire at the slum colonies in the  

nearby  areas.  Mr.  K.L.  Bishnoi,  Dy.  Commissioner  of  

Police  -  Zone  III,  also  arrived  at  the  site  and  tried  to  

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control the mob in order to restore peace.  However, the  

mob turned more violent and even started attacking the  

police by resorting to firing from the side of Hari Masjid.  

Therefore, in order to maintain law and order and to save  

innocent people,  Mr.  K.L.  Bishnoi,  Dy.  Commissioner of  

Police,  ordered  Respondent  No.2  to  open  fire.   In  

obedience  to  the  orders  of  the  superior  Police  Officer,  

Respondent No. 2 and his staff opened fire which resulted  

in  the  death  of  six  persons.   In  respect  of  the  said  

incident, F.I.R. came to be lodged on 10.01.1993 bearing  

C.R.  No.  17  of  1993  under  Sections  143  to  149,  151,  

153(B)  and  307  of  the  Indian  Penal  Code  read  with  

Sections 3 and 25 of the Arms Act and under Section 37(i)  

of the Bombay Police Act at the R.A.K. Marg Police Station  

against  50  accused  persons  and  about  2000-2400  

unknown wanted accused persons and Respondent No.1  

was specifically  named in the F.I.R.   In the year  1994,  

after completion of the investigation, charge sheet came to  

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be  filed  before  the  Competent  Court.   As  far  as  

Respondent No.1 is concerned, the trial against him was  

separated by the Additional Sessions Court by order dated  

05.08.2005.    The  trial  of  other  six  accused  was  also  

separated.  The 11th Ad-hoc Additional Sessions Judge at  

Sewree,  Mumbai,  conducted  trial  and  by  order  dated  

04.02.2006  acquitted  22  accused  persons.   On  

05.08.2006,  Respondent  No.1  filed  a  complaint  with  

R.A.K. Marg Police Station and sought registration of FIR  

against  Respondent  No.2  and  other  police  officers  in  

respect  of  the  Hari  Masjid  incident  and  the  same  was  

entered into Police Station record vide Toorant Application  

Register  at  S.No.  263/06  dated  05.08.2006.  On  

14.09.2006 and 04.10.2006, the advocate of Respondent  

No.1 sent two letters to the police station in connection  

with  the  registration  of  F.I.R.    In  October,  2006,  

Respondent No.1 was requested on two different occasions  

to  attend  the  police  station  with  a  view  to  record  his  

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statement,  however,  he  informed telephonically  that  the  

letters  sent  by  his  advocate  dated  14.09.2006  and  

04.10.2006 may be treated as  his  statement  and F.I.R.  

On  25.10.2006,  Respondent  No.2  was  called  and  his  

statement was recorded.  On 09.07.2007, the Additional  

Sessions  Judge  directed  the  I.O.  to  submit  a  separate  

charge  sheet  against  Respondent  No.1  as  the  trial  of  

Respondent  No.1  was  separated  by  earlier  order  dated  

05.08.2005.   On  01.08.2007,  Respondent  No.1  filed  

Criminal Writ Petition No. 1437 of 2007 before the High  

Court of Bombay and sought a writ of mandamus directing  

the Government to prosecute Respondent No.2.   By the  

impugned order dated 18.12.2008, the High Court allowed  

the  writ  petition  by  treating  the  writ  petition  as  public  

interest litigation and directed the CBI to register the case  

and investigate  the said incident.   Challenging the said  

order, the State of Maharashtra filed this appeal by way of  

special leave.   

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4)  Heard Mr. Shekhar Naphade, learned senior counsel for  

the  State  of  Maharashtra,  Mr.  Colin  Gonsalves,  learned  

senior  counsel  for  the  Respondent  No.  1  herein  (writ  

petitioner) and Mr. Mohan Jain, learned Additional Solicitor  

General for CBI-Respondent No. 3.

5)  Main grievance of the State of Maharashtra with regard to  

entrusting the investigation to CBI are as follows:-

(i)  Since,  this  Court  has  seized  the  matter  in  issue  by  

entertaining two writ petitions under Article 32 and pending  

decision,  the  High  Court  ought  not  to  have  exercised  

jurisdiction under Article 226.

(ii)  The State of Maharashtra itself constituted Special Task  

Force (STF) and proceeded with the investigation.

(iii)  When adequate remedy is available under the Code of  

Criminal Procedure (hereinafter referred to as ‘the Code’), writ  

petition under Article 226 before the High Court is not the  

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proper  remedy  and  the  High  Court  ought  not  to  have  

entertained the same.

6) As against  the  above  submissions,  Mr.  Mohan Jain,  

learned Additional Solicitor General, appearing for the CBI  

and  Mr.  Gonsalves,  learned  senior  counsel  for  the  

Respondent No. 1 herein submitted that after considering the  

extraordinary  circumstance,  utmost  public  importance  as  

well as the conduct of the State in showing leniency towards  

their police officers, particularly in favour of Respondent No.  

2, the High Court is justified in issuing appropriate direction  

in  writ  petition  filed  by  Respondent  No.1  who  made  a  

complaint  in  respect  of  the  incident  that  took  place  on  

10.01.1993  near  Hari  Masjid  at  Mumbai.   They  also  

submitted that the writ petitions under Article 32 pending  

before this Court relate to implementation of the Srikrishna  

Commission Report and there is no bar for entertaining a  

writ  petition  in  respect  of  the  specific  grievance  of  the  

Respondent No.  1 about the conduct of  the Special  Task  

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Force (STF),particularly, the highhanded action of its police  

officers.  Even otherwise, according to them, the writ petition  

came to be filed in the High Court of Bombay on 01.08.2007  

whereas the writ petitions were filed in this Court after a year  

in 2008 that too not by the Respondent No. 1 but by NGOs.  

Finally, both the counsel submitted that inasmuch as the  

Government  of  Maharashtra  itself  by  notification  dated  

07.02.2008  consented  to  the  exercise  of  the  powers  and  

jurisdiction  of  the  members  of  Delhi  Special  Police  

establishment (CBI) for inquiry into the said incident relating  

to  Hari  Masjid  incident,  the  State  is  not  justified  in  

challenging the order of the High Court.

7)  We have carefully considered the rival contentions and  

perused the relevant materials.

8)   With  regard  to  the  first  objection  of  the  State  of  

Maharashtra  about  the  propriety  of  the  High  Court  in  

exercising  jurisdiction  under  Article  226  when  the  same  

matter was seized by this Court in a petition under Article  

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32, first of all, it is to be noted that the writ petition came to  

be filed before the High Court of Bombay by Respondent No.  

1 herein in 2007.  On the other hand, in their reply filed by  

the  State  of  Maharashtra  through their  officer,  Shri  D.T.  

Shinde, Deputy Commissioner of Police, , Detection-I, Crime  

Branch, Mumbai, on 18.09.2007, wherein it was stated that  

after Srikrishna Commission’s Report two writ petitions came  

to be filed in the Supreme Court. The said affidavit further  

shows that both were filed by NGOs, namely, W.P. No. 527 of  

1998  was  filed  by  Action  Taken  Committee  for  the  

implementation of  Srikrishna Commission Report  and the  

second W.P. No. 542 of 1999 was filed by the Human Rights  

Union of Supreme Court’s Lawyers.  The prayer(s) in both  

these writ petitions were for implementation of the report of  

the Commission and for other reliefs including action to be  

taken against the police officers.  It is true that both these  

petitions were pending when the High Court disposed of the  

writ  petition  filed  by  the  Respondent  No.  1  herein.   Mr.  

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Naphade, learned senior  counsel  for  the State very much  

relied on the decision of this Court in Chhavi Mehrotra vs.  

Director  General,  Health Services, 1995 Supp (3)  SCC  

434.  In the said decision, writ petition was moved by one  

Ms. Chhavi Mehrotra before this Court under Article 32 for  

directions for consideration of her admission to the MBBS  

course against 15 per cent all-India quota of 1992.  This writ  

petition  along  with  other  similar  petitions  came  for  

consideration  and  certain  comprehensive  directions  were  

issued in matters for admission of students in the waiting list  

to various colleges in the country.  During the pendency of  

the said writ petition, it is seen that the petitioner moved an  

independent  Writ  Petition  No.  1508  of  1993  before  the  

Lucknow  Bench  of  the  High  Court  and  obtained  certain  

directions.   When this  was  brought  to  the  notice  of  this  

Court, it was observed “it is a clear case where the High Court  

ought  not  to  have  exercised  jurisdiction  under  Article  226  

where the matter  was  clearly seized of  by this  Court in a  

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petition under Article 32…..” There is no dispute about the  

proposition and this Court reiterated that judicial discipline  

would require that in a hierarchical system, such conflicting  

exercise  of  jurisdiction  should  be  avoided.   However,  the  

dictum laid down in that case is not applicable to the case on  

hand,  because  in  Chhavi  Mehrotra (supra),  the  same  

petitioner  after  filing  writ  petition  under  Article  32  and  

getting certain directions approached the High Court under  

Article 226 and the High Court had issued more directions.  

When this  was brought to  the notice of  this  Court,  after  

pointing  out  the  practice  and  procedure,  this  Court  

dissatisfied with the High Court’s move.  In the case on hand,  

first of all, the writ petition came to be filed in the High Court  

in the year 2007 by the Respondent No. 1 herein well prior to  

the filing of two writ petitions under Article 32 in this Court,  

that too by different persons, namely, two NGOs i.e. Action  

Taken  Committee  for  implementation  of  Srikrishna  

Commission Report and Human Rights Union of Supreme  

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Court’s Lawyers.  Further, admittedly, there is no order by  

this Court prohibiting the High Court from entertaining writ  

petition or proceeding further about the said incident.  In  

fact, we are told that those writ petitions are still pending.  In  

such circumstances,  we are  of  the view that  the reliance  

placed on  Chhavi Mehrotra (supra) is not applicable and  

there is no violation or deviation of any established practice  

and procedure particularly in the light of the peculiar facts of  

this case, where Respondent No. 1, who himself a victim and  

complainant  in  respect  of  Hari  Masjid  incident  seeking  

direction  for  action  against  the  officers,  particularly,  

Respondent No. 2 herein.  Accordingly, we reject the first  

contention.

9)  As regards the second objection, namely, the State itself  

had constituted Special Task Force (STF) and proceeded with  

the  investigation,  certain  factual  details  asserted  by  the  

Respondent No.  1 in his  complaint  dated 28.08.2006 are  

relevant.  In the said complaint addressed to Sr. Inspector of  

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Police, R.A.K. Marg Police Station on 10.01.1993 while the  

city was in the midst of communal disorder, according to the  

complainant,  he  went  to  Hari  Masjid  for  performing  his  

Namaz.  While he was within the premises of the Masjid, 4-5  

police  personnel  entered  into  the  Masjid  and  started  

indiscriminate  firing.   The  persons  who  were  performing  

Namaz started running helter and skelter and took refuge in  

various rooms in the Masjid.  They closed all the windows  

except one and through this open window, a police officer by  

name Nikhil Kapse-Respondent No. 2 herein started firing  

inside the premises and two persons lost their lives.  One  

bullet hit the complainant on his back.  The persons inside  

were asked to come out with hands held high.  One person  

by name Namazi Shamsuddin had sustained bullet injury on  

his leg.  While he was attending to his injury, Respondent No.  

2 fired on his chest killing him on the spot.  In all, 6 muslim  

persons lost  their  lives and seven were injured.   He also  

narrated that police took several persons including him to  

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R.A.K.  Marg  Police  Station  and  how  they  were  treated  

inhumanly.  He was shown as accused no. 35 in C.R. No. 17  

of 1993.  In the meanwhile, by a Gazette Notification dated  

25.01.1993,  the  State  of  Maharashtra  appointed  a  

Commission headed by Justice B.N. Srikrishna to enquire  

into the riots and various incidents which occurred during  

the riots in Mumbai.   The report of  the Commission was  

published on 16.12.1998.  The High Court has also noted the  

Commission’s finding about the role of Respondent No. 2 in  

Hari  Masjid  incident  which  was  referred  to  in  the  

Commission’s report paragraph Nos. 24.23 to 24.25 and in  

para 4 of the High Court’s order.  It is also relevant to point  

out that similar objection was taken by the Public Prosecutor  

before the High Court stating that the Special Task Force  

only proceeded on the basis of the version given by the police  

witnesses.  The High Court has observed that it is completely  

one-sided investigation and it is difficult to countenance an  

investigation  where  the  statement  of  none  of  the  injured  

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witnesses was recorded and which was confined to reaching  

a conclusion on the basis of the statements of police officers  

who  were  present  at  the  time  of  incident  when  the  

commission  had  prima  facie indicted  that  some  of  these  

officers  have  committed  serious  offences.   In  view  of  the  

factual opinion about the investigation of Special Task Force  

by the Commission, we do not find any error in the decision  

of  the  High  Court  in  ordering  investigation  by  a  special  

agency  like  CBI.   Accordingly,  we  reject  the  second  

contention also.   

10)   Coming  to  the  last  submission  about  exercise  of  

jurisdiction  under  Article  226  by  the  High  Court,  Mr.  

Naphade submitted that the writ  petitioner ought to have  

availed Sections 173,  190 etc.  of  the  Code and the High  

Court ought not to have issued a  writ  of  mandamus.  To  

strengthen  his  arguments,  he  relied  on  Gangadhar  

Janardan Mhatre vs.  State of  Maharashtra and Ors.  

(2004) 7 SCC 768,  Hari Singh vs. State of U.P., (2006) 5  

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SCC 733 and Aleque Padamsee & Ors. vs. Union of India  

& Ors. (2007) 6 SCC 171.    

11) In the first case, i.e.  Gangadhar Janardan Mhatre  

(supra), after adverting to Sections 156(3), 169, 173, 178,  

190 as well  as 200 this  Court  concluded that  instead of  

availing remedy under those provisions, writ petition in such  

cases is not to be entertained.

12)  In  Hari Singh vs. State of U.P., (2006) 5 SCC 733,  

considering the very same provisions, this Court concluded  

that  when the information is  laid with the police  but  no  

action on that behalf is taken, the complainant can under  

Section  190  read  with  Section  200  of  the  Code  lay  the  

complaint before the Magistrate having jurisdiction to take  

cognizance of the offence and the Magistrate is required to  

enquire into the complaint as provided in Chapter XV of the  

Code.  It was further held that in case the Magistrate after  

recording evidence finds a prima facie case, instead of issuing  

process to the accused, he is empowered to direct the police  

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concerned to investigate into the offence under Chapter XII of  

the Code and submit a report.  If he finds that complaint  

does not disclose any offence to take further action, he is  

empowered to dismiss the complaint under Section 203 of  

the  Code.   In  case  he  finds  that  the  complaint/evidence  

recorded prima facie discloses an offence, he is empowered to  

take cognizance of the offence and would issue process to the  

accused.   After  pointing  out  the  same,  the  Court  has  

concluded the dismissal of writ petition filed under Article 32.

13)  In Aleque Padamsee & Ors. vs. Union of India & Ors.  

(2007) 6 SCC 171, this Court, after adverting to the earlier  

decisions reiterated the same ratio.   

14)  The principles enunciated in the above decisions make it  

clear that if any person is aggrieved by the inaction on part of  

the police or not getting proper response, there are adequate  

remedies provided under the Code and it is for such person  

to seek relief with the aid of these provisions.  However, we  

have  already  adverted  to  the  specific  allegation  in  the  

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complaint of the Respondent No. 1, how the Special Task  

Force conducted investigation,  as seen from the report  of  

Srikrishna Commission.  Further, in the case on hand, the  

Respondent No. 1 has asserted at many places which were  

supported by the Commission’s report, more particularly, the  

information that the State Police did not examine the injured  

witnesses who were available at the spot and suffered a lot.  

In view of the demolition of Babri Masjid on 06.12.1992, and  

riots in various places all over India including Mumbai on  

10.01.1993, specific assertion by the Respondent No. 1 who  

is an affected person coupled with the findings of Srikrishna  

Commission accepted by the State, we are of the view that it  

is an “extraordinary case” and we hold that the Respondent  

No. 1 herein is fully justified in approaching the High Court  

seeking extraordinary jurisdiction for direction for entrusting  

the investigation to independent and special agency like CBI.  

Accordingly, we reject the said contention also.   

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15)  Finally, as rightly pointed out by Mr. Gonsalves, learned  

senior counsel for the Respondent No. 1, after the notification  

of  the  Government  of  Maharashtra  dated  07.02.2008  

consenting CBI to investigate the incident relating to Hari  

Masjid, it is not understandable as to the opposition of the  

direction of the High Court ordering CBI inquiry.  It is useful  

to refer the Notification of the Government of Maharashtra  

which reads as under:

“GOVERNMENT OF MAHARASHTRA

NOTIFICATION

Home Department (Special) Mantralaya, Mumbai – 400 032 Dated: 7th February, 2008

No.  MIS  0807/CR  276/Part-II/Spl-2.   In  pursuance of the provisions contained in Section 6 of  the Delhi Special Police Establishment Act, 1946, (Act  XXV  of  1946),  the  Government  of  Maharashtra  is  pleased to accord consent to the exercise of the powers  and jurisdiction of the members of the Delhi Special  Police Establishment for the inquiry into the incident  as dealt with by Srikrishna Commission in its Report,  Volume II in para Nos. 24.17 to 24.24 relating to Hari  Masjid incident.

The  consent  is  also  accorded  for  the  inquiry/investigation  of  attempts,  abetments  and  conspiracies in relation to or in connection with the  

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offence  in  the  said  case  and  any  other  offences  committed in the course of same transaction or arising  out of the same facts.

By order and in the name of  the Governor of  Maharashtra

Sd/- A.N. Naiknaware Deputy Secretary to Government”

It is not in dispute about the said notification and the follow  

up action by the CBI after examining several persons.  No  

doubt, learned senior counsel for the State by drawing our  

attention to certain affidavits filed by the officers of the CBI in  

the High Court submitted that the CBI itself was reluctant to  

accept the investigation due to various reasons.  On going  

through those affidavits filed by some of the officers, we feel  

that there is no need to give much importance to the same.   

16)  About the direction by the High Court, in exercise of its  

jurisdiction  under  Article  226,  requesting  the  CBI  to  

investigate a cognizable offence within the territory of a State  

without  its  consent  was  considered  recently  by  a  

Constitution Bench in a decision reported in State of West  

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Bengal  &  Ors.  vs.  Committee  for  Protection  of  

Democratic Rights, West Bengal & Ors. (2010) 3 SCC 571  

which reads as follows:-

“69. In  the  final  analysis,  our  answer  to  the  question  referred  is  that  a  direction  by  the  High  Court,  in  exercise  of  its  jurisdiction  under  Article  226  of  the  Constitution,  to  CBI  to  investigate  a  cognizable offence alleged to have been committed  within the territory of a State without the consent of  that  State  will  neither  impinge  upon  the  federal  structure  of  the  Constitution  nor  violate  the  doctrine of separation of power and shall be valid in  law.  Being  the  protectors  of  civil  liberties  of  the  citizens, this Court and the High Courts have not  only  the  power  and  jurisdiction  but  also  an  obligation  to  protect  the  fundamental  rights,  guaranteed by Part III in general and under Article  21 of the Constitution in particular, zealously and  vigilantly.”

In view of the above pronouncement, we hold that in order to  

protect  civil  liberties,  fundamental  rights  and  more  

particularly Article 21, this Court and High Courts can very  

well  exercise  the  power,  no  doubt,  must  be  sparingly,  

cautiously and in exceptional situations as observed in para  

70 of the said judgment.

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17)  In the light of the above discussion, we are unable to  

accept the stand of the State of Maharashtra and we are in  

agreement with the decision rendered by the High Court in  

ordering investigation by the CBI.  Taking note of the fact  

that the incident related to 1993 and also of the fact that the  

CBI has already examined several persons, we direct the CBI  

to continue and complete the investigation into the incident  

and file a final report to the Court concerned within a period  

of  6  months.   With  the  above  direction,  this  appeal  is  

dismissed.    

...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (ANIL R. DAVE)  

NEW DELHI; JULY 30, 2010

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