IMPORTANT POINTS
Report of the inquiry Commission has no evidentiary value in the criminal case.
Protection u/s 161, Bombay Police Act.
Section 34 IPC vis-à-vis Police party.

JUDGMENT

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.

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 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 the team could not recover any fire arm except swords and sticks.

5. Shri Tyagi then left the place and complai