STATE OF MAHARASHTRA Vs. FAROOK MOHAMMED KASIM MAPKAR

JUDGEMENT

(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 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 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 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.