NOORUL HUDA MAQBOOL AHMEDversusRAM DEO TYAGI & ORS.

                         [2011] 7 S.C.R. 782


A               NOORUL HUDA MAQBOOL AHMED
                                   v.
                     RAM DEO TYAGI & ORS.
                (Criminal Appeal No. 1256 of 2011)

                            JULY 04, 2011
8
           [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973

c
1
         s. 227-Application for discharge-Mumbai riots-
   Suleman 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; 801-
B-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.
                                                             G
    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
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
  of those who did not even fire a single bullet. In the
0
  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:                         D

   . 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     E
     2008 (6) SCR 1116          referred to          para 12
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1256 of 2011.
                                                                 F
    From the Judgment & Order dated 16.10.2009 of the High
Court of Bombay in Criminal Appeal No. 357 of 2003.

     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
  came to be challenged by a private party who claims to be a
0
  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
  argument that the team which entered after breaking open the
0
  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         E
  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      F
  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      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
    796      SUPREME COURT REPORTS                   [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, Sub-
    Inspector 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              H
    798      SUPREME COURT REPORTS                   [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 H
    800     SUPREME COURT REPORTS                  (2011] 7 S.C.R.


A 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
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,
  therefore, the operation had to be done without there being any
0
  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. The Trial Court has        B
  rightly relied on the decision of this Court in T. T. Antony v. State
  of Kera/a [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            c
  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 Co.mmission in its onerous task of investigation
  bearing in mind that it does not preclude the investigation             0
  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           E
. them in accordance with law. Th.e Trial Court has also relied
  on Kehar Singh & Ors. v.State (Delhi Administration) AIR 1988
  SC 1883 to hold that the 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         F
  Trial Court then proceeded to examine the prima facie case
  and relied on the wireless message given by Anant Keshav
   lngale 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               G
  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             H
    802       SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A 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 asingle round.
B 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
c 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 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
0
  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
E 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
F 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
G 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
H         out in Niranjan Singh Punjabi v. Jitendra Bijjaya (1990)4
  NOORUL HUDA MAQBOOL AHMED v. RAM DEO                           803
  ,   TYAGI & ORS. [V.S. SIRPURKAR, J.]

       SOC 76: (AIR 1990 SC 1962) that at Sections 227 and               A
       228 stage 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 constitµting the alleged
       offence.: The Court may, for this limited .purpose, 'sift the     s
     .evidence as it cannot be expected even at.that ini.tial stage
       to accept all that th~ prosecution states as gospe! tru.th
     . even if it is opposed to common sense or the broad
                                                          of
       probabilities of the case. Therefore, at the stage framing
     . of the charge the Court has to consider the material with         c
       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."
                                                                         D
    The. Court also referred to the observations made in
Yogesh @ Sachin Jagdish Joshi v. State of Maharash.tra
[2008 (10 )SCC 394]:                                 .
       . . . "16. However, in assessing this fad, the Judge has          E
     'the power fo sift and .weigh :the material for, the limited
      purp6s'e of finding outwhether or not a prima facie case
      ag~inst th·e accused has been made out             ··
 . ··: .. -·   .   .


            The broad test to be applied is whether the materials
       on record, if unrebutted, make a conviction reasonably            F
       possible."

       13. A very relevant observation has thereafter been made
by the High Court that the truthfulness of the statements or
ciccumstances or documents of the prosecution is not                     G
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 scope of alternative argument made by the revisional Court
that the matter should be remanded for adding new charges                H
    804      SUPREME COURT REPORTS                  (2011] 7 S.C.R.


A, under S~ction 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
B 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.
c         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
D   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
E   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
    the record ourselves which suggest that the police personnel
    had directed the opening of the door but the same were not
F   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
G   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
H   there could be no common intention shared on the part of those
  NOORUL HUDA MAQBOOL AHMED v. RAM DEO                         805
      TYAGI & ORS. [V.S. SIRPURKAR, J.]

who did not even fire a single bullet. Shri Pradhan also saw the       A
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                 B
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                c
object. Now the question is whether this assembly could be
called an unlawful assembly. There can be no dispute that they
were all the members of the SOS and had the duty to quell the
riots. They were not doing anything illegal in corning out and
trying to control the riots. There is also no dispute that by Shri     0
Pradhan that the riots were undoubtedly going on. We outrightly
reject the claim of Shri Pradhan that everything was cairn 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          E
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.
                                                                       F
    ·1 s. 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 G
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 H
    806       SUPREME COURT REPORTS                   (2011] 7 S.C.R.


A   reason behind it. It was his job and duty to quell the riots and
    to control the rioters. In pursuance of that he ordered 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
B   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 sq1J1et!'1'fng illegal which is not the case here.
c   There was no ques~1on ~of the so-called entry amounting to
    criminal trespass. If sdme 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
0   murder is entirely a differe-nt question. That will have to be
    established on the basis of the evidence that they had specific
    agenda for doing so or they had t.he 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
E   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
F   of the personnel did not fire a single bullet could they 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?
    The answer would have to be in the negative. Th~refore, in our
    opinion, there was no question of there being an unlawful
G   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
H   certainly take them out of the prosecution area. We do not agree
  NOORUL HUDA MAQBOOL AHMED v. RAM DEO                      807
      TYAGI & ORS. [V.S. SIRPURKAR, J.]

that on that account they could not be discharged. In fact, the    A
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.                                      B

     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      C
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.

     17. Shri Pradhan, however, contended that there was lot o
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'<:>f
Shri Abdul Sattar Suleman Mithaiwala, Abdul Wafa Khan E
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.
                                                                   F
Islam Mohd. Kuddus Shaikh, Budul Abdul Latif Khan and Mohd.
Rafiq s/o Mahebook Ali. We have carefully gone through all
th~se $taternents. 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 · .G
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 Kho/o, Darwaja Kholo (open the door) and Were also
asking Hathiyar Khah Chhupa hai (where is the weapon H
    808      SUPREME COURT REPORTS                    (2011] 7 S.C.R.


A. 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 is that some persons were shot dead by the police.
B    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
c   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
0
    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
E   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 n·o specific
    act attributed either to Shri Tyagi (respondent No. 1 herein) or
F   Shri lngale (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 single bullet, it cannot be said that they had a eommon object
G   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.
H
  NOORUL HUDA MAQBOOL AHMED v. RAM DEO · . 809
      TYAGI & ORS. [V.S. SIRPURKAR, J.]

     18. Shri Pradhan then claimed that if after reading the          A
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        B
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 proceec:I to dismiss the same. The appeal is          C
dismissed.

R.P.                                         Appeal dismissed.