THE STATE OF MAHARASHTRAversusFAROOK MOHAMMED KASIM MAPKAR & ORS.

                   [2010] 9 S.C.R. 399


              THE STATE OF MAHARASHTRA                               A
                                v.
     FAROOK MOHAMMED KASIM MAPKAR & ORS.
          (Criminal Appeal No. 1376 of 2010)
                        JULY 30, 2010
                                                                     B
        [P. SATHASIVAM AND ANIL R. DAVE, JJ.)


     Constitution of India, 1950:

      Articles 32, 226 - Riots in Mumbai - Hari Masjid incident      c
- Indiscriminate firing by police officials - Writ petition filecf
in High Court in 2007 - Seeking direction to take action
against the_police officials involved - Two writ petitions came
to be filed in Supreme Court subsequently by two NGOs after
the report of Srikrishna Commission which was constituted to         D
inquire into the riots - Disposal of writ petition filed under
Article 226 by High Court - Whether Supreme Court was
seized of the matter in issue, by entertaining the two writ
petitions under Article 32 and High Court erred in disposing
of the writ petition - Held: No - Writ petition was filed in High
                                                                     E
Court prior to filing of 2 writ petitions in Supreme Court - There
was no order by Supreme Court prohibiting the High Court
from entertaining writ petition or proceeding further, in the
case - Both the petitions under Article 32 were pending when
the High Court disposed of the writ petition.
                                                                     F
     Article 226 - Riots in Mumbai - Indiscriminate firing by
police officials - Investigation entrusted by State Government
to Special Task Force - Writ petition seeking direction for
entrusting investigation of the case to independent and
special agency - High Court entrusting investigation to CBI          G
- Propriety of - Held: There is no doubt that any person
aggrieved by the inaction on the part of the police has
adequate remedies provided under the Code· and it is for such

                               399                                   H
    400      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   person to seek relief with the aid of the provisions of the Code
    - However, in the instant case, Commission constituted to
    inquire into the riots gave report that some of the police
    officials did commit serious offence and the State Police did
    not examine the injured witnesses available at the spot - The
8   instant case being an "extraordinary case", High Court was
    justified in exercising extraordinary jurisdiction for entrusting
    the investigation to CBI - Such direction by High Court without
     the consent of the State, neither impinge upon the federal
    structure of the Constitution nor violate the doctrine of
C    separation of power and would be valid in law - Being the
    protectors of civil liberties of the citizens, Supreme Court and
     the High Courts have not only the power and jurisdiction but
     a/so an obligation to protect the fundamental rights,
     guaranteed by Part Ill in general and under Article 21 of the
     Constitution in particular, zealously and vigilantly - Since the
D    incident related to 1993 and the CBI has already examined
     several persons, the CBI is directed to continue and complete
     the investigation into the incident and file a final report to the
     Court concerned within a period of 6 months - Code of
     Criminal Procedure, 1973 - Investigation - Administrative law
E    - Doctrine of separation of powers.
       Communal riots occurred in various parts of the
  country including Bombay (now 'Mumbai') after the
  incident of demolition of Babri Masjid on 6.12.1992. On
F 10.1.1993, respondent no.2, the police official received a
  message that a mob of 2000 to 2500 people armed with
  deadly weapons was resorting to rioting and arson near
  Hari Masjid, Bombay. Respondent no.2 rushed to the site
  and found that the mob had become violent and was
G destroying vehicles and other properties and setting fire
  to the sium colonies in the nearby areas. The Deputy
  Commissioner of Police (DCP) also arrived at the site and
  tried to control the mob in order to restore peace, but the
  mob started attacking the police by resorting to firing
H from the site of Hari Masjid. The DCP ordered respondent
       STATE OF MAHARASHTRA v. FAROOK                    401
           MOHAMMED KASIM MAPKAR
                                                                A
no.2 to open fire. Respondent no.2 and his staff in
compliance with the order of the DCP, opened fired
which resulted in the death of six persons. An FIR was
lodged against 50 accused persons and about 2000-2400
unknown wanted accused persons. Respondent no.1
was specifically named in the FIR. After investigation and      B
filing of the charge sheet, the trial of six accused persons
and respondent no.1. was separated. The trial court
acquitted 22 accused persons.

     On 5.8.2006, respondent no.1 filed a complaint and         c
sought registration of FIR against respondent no.2 and
other police officers. The complainant stated that on
10.01.1993, while he was within the premises of the Hari
Masjid, 4-5 police personnel including respondent no. 2
entered into the Masjid and started indiscriminate firing.      0
Six muslim persons lost their lives and seven were
injured. Several persons including him were taken to
police station where they were treated inhumanly. On
1.8.2007, respondent no.1 filed petition under Article 226
of the Constitution seeking writ of mandamus for
                                                                E
direction to the government to register a case against
respondent no.2 and investigate the same. The High
Court allowed the writ petition by treating it as public
interest litigation and directed the CBI to register the case
and investigate the said incident.
                                                                F
     In the instant appeal, it was contended for the State
of Maharashtra that since this Court was seized of the
matter in issue by entertaining two writ petitions under
Article 32 of the Constitution, and pending decision the
High Court ought not to have exercised jurisdiction under       G
Article 226; that the State of Maharashtra itself
constituted Special Task Force which proceeded with the
investigation; and that when adequate remedy was
available under the Code of Criminal Procedure, writ
petition under Article 226 before the High Court was not        H
    402      SUPREME COURT REPORTS              [2010] 9 S.C.R.


A the proper remedy and the High Court ought not to have
  entertained the same.

          Dismissing the appeal, the Court

         HELD: 1. The writ petition came to be filed in the High
B   Court in the year 2007 by respondent no. 1 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
C   of Supreme Court's Lawyers. Admittedly, there was no
    order by this Court prohibiting the High Court from
    entertaining the writ petition or proceeding further about
    the said incident. Both the petitions under Article 32 were
    pending when the High Court disposed of the writ
D   petition filed by respondent no. 1. In such circumstances,
    there was no violation or deviation of any established
    practice and procedure, particularly, in the light of the
    peculiar facts of the instant case, where respondent no.
    1, himself was a victim and the complainant in respect of
E   Hari Masjid incident seeking direction for action against
    the officers, particularly, respondent no. 2. [Para 8] [410-
    C-F]

          Chhavi Mehrotra v. Director General, Health Services
F   1995 Supp (3) SCC 434 - held inapplicable.

       2. 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
G Mumbai. The report of the Commission was published on
  16.12.1998. The High Court noted the Commission's
  finding about the role of respondent No. 2 in Hari Masjid
  incident. The High Court observed that the investigation
  by Special Task force was completely one-sided and it
H was difficult to countenance an investigation where the
      STATE OF MAHARASHTRA v. FAROOK                    403
          MOHAMMED KASIM MAPKAR
statement of none of the injured witnesses was recorded       A
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 indicated that some of these officers had
committed serious offences. In view of the factual opinion    B
about the investigation of Special Task Force by the
Commission, there was no error in the decision of the
High Court in ordering investigation by a special agency
like CBI. [Para 9) [411-D-H; 412-A]

     Gangadhar Janardan Mhatre v. State of Maharashtra and C
Ors. (2004) 7 SCC 768; Hari Singh v. State of UP (2006) 5
SCC 733; Aleque Padamsee & Ors. v. Union of India & Ors.
(2007) 6 sec 171; Hari Singh v. State of UP. (2006) 5 sec
733- relied on.
                                                               D
     3.1. No doubt, if any person is aggrieved by the
inaction on the part of the police or of 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 the provisions of the Code. However, in the instant E
case, respondent No. 1 asserted at many places in the
complaint that the State Police did not examine the
injured witnesses who were available at the spot and
suffered a lot. This information was supported by the
Commission's report. In view of the demolition of Babri F
Masjid on 06.12.1992, and riots at various places all over
India including Mumbai on 10.01.1993, specific assertion
by respondent No. 1 who was an affected person
coupled with the findings of Srikrishna Commission
accepted by the State, it is held that it is an "extraordinary G
case" and respondent no. 1 is fully justified in
approaching the High Court seeking extraordinary
jurisdiction for direction for entrusting the investigation
to independent and special agency like CBI. A notification
was passed by the Government of Maharashtra on
                                                               H
    404      SUPREME COURT REPORTS             [2010] 9 S.C.R.


A   7.02.2008 whereby it accorded consent for investigation
    /inquiry into the incident by CBI. It is not understandable
    why then there was opposition of the direction of the High
    Court ordering CBI inquiry. There is no dispute about the
    said notification and the follow up action by the CBI after
B   examining several persons. [Paras 14, 15] [413-B-H; 414-
    H]
        State of West Bengal & Ors. v. Committee for Protection
    of Democratic Rights, West Bengal & Ors. (2010) 3 SCC 571
    - relied on.
c
       3.2. A direction by the High Court, in exercise of its
  jurisdiction under Article 226 of the Constitution, to CBI
  to investigate a cognizable offenc:e alleged to have been
  committed within the territory of a State without the
D consent of that State neither impinge upon the federal
  structure of the Constitution nor violate the doctrine of
  separation of powers and shall be valid in law. Being the
  protectors of civil liberties of the citizens, the Supreme
  Court and the High Courts have not only the power and
E jurisdiction but also an obligation to protect the
  fundamental rights, guaranteed by Part Ill in general and
  under Article 21 of the Constitution in particular, zealously
  and vigilantly. Taking note of the fact that the incident
  related to 1993 and also of the fact that the CBI had
F already examined several persons, the CBI is directed to
  continue and complete the investigation into the incident
  and file a final report to the Court concerned within a
  period of 6 months. [Paras 16, 17] [415-C-H; 416-A-B]
                        Case Law Reference:
G
         1995 Supp (3) sec 434 held inapplicable Para 8
         (2004) 1 sec 768        relied on          Para 10
         (2006) 5 sec 733        relied on          Para 10
H
        STATE OF MAHARASHTRA v. FAROOK                      405
            MOHAMMED KASIM MAPKAR
   (2007) 6 sec 111            relied on             Para 10        A
    (2006) s sec 733           relied on             Para 12

    (201 o) 3 sec s11          relied on             Para 16

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                B
No. 1376 of 2010.

    From the Judgment & Order dated 18.12.2008 of the High
Court of Judicature at Bombay in Criminal Writ Petition No.
1437 of 2007.
                                                                    c
     Mohan Jain, ASG, Shekhar Naphade, Colin Gonsalves,
Arun R. Pednekar, Sanjay Kharde, Asha Gopalan Nair, Divya
Jyoti, Jyoti Mendiratta, P.K. Dey, D.K. Thakur, T.A. Khan,
Rohini Mukherjee, Jaspreet Aulakh, Arvind Kumar Sharma for
the appearing parties.                                              D

    The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. Leave granted.

    2. This appeal is directed against the final judgment and       E
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              F
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 G
Mumbai. At the material time, Respondent No,2 was the PSI
attached to R.A.K. Marg Police Station, Bombay. On
10.01.1993, Responrlent No.2 and his staff, while on patrol
duty, received a message from Wireless Control Room that a
                                                                  H
    406     SUPREME COURT REPORTS                [2010] 9 S.C.R.


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
B areas. Mr. K.L. Bishnoi, Dy. Commissioner of Police - Zone Ill,
  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
c 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.l.R.
  came to be lodged on 10.01.1993 bearing C.R. No. 17 of 1993
D under Sei:;tions 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
E Respondent No.1 was specifically named in the F.l.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. The trial
F 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
G 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
H
     STATE OF MAHARASHTRA v. FAROOK        407
 MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.]

station in connection with the registration of F.l.R. In October,   A
2006, Respondent No.1 was requested on two different
occasions to attend the police station with a view to record his
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.l.R. On 25.10.2006,               B
Respondent No.2 was called and his statement was recorded.
On 09.07.2007, the Additional Sessions Judge directed the 1.0.
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              c
Criminal \Nrit 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
                                                                    D
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.

     4. Heard Mr. Shekhar Naphade, learned senior counsel for
the State of Maharashtra, Mr. Colin Gonsalves, learned senior       E
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      F
to entrusting the investigation to CBI are as follows:-

     (i) Since, this Court has seized of 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.                                                  G

    (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
                                                                    H
    408      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   of Criminal Procedure (hereinafter referred to as 'the Code'),
    writ petition under Article 226 before the High Court is not the
    proper remedy and the High Court ought not to have
    entertained the same.

B         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
C   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
D   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
    Force (STF),particularly, the highhanded action of its police
E   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
F   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
G   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
H Maharashtra about the propriety of the High Court in exercising
     STATE OF MAHARASHTRA v. FAROOK        409
 MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.]
jurisdiction under Article 226 when the same matter was seized            A
by this Court in a petition under Article 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              B
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                   c
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
                                                                          D
 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.
 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             E
 decision, writ petition was moved by one Ms. Chhavi Mehrotra
 before this Court under A . .icle 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               F
 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                      G
 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 petition
 under Article 32 ..... "There is no dispute about the proposition        H
    410      SUPREME COURT REPORTS                     [2010] 9 S.C.R.


A   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
B   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.
c    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
D   Srikrishna Commission Report and Human Rights Union of
    Supreme 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
E   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
F   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
G 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
  Police, R.A.K. Marg Police Station on 10.01.1993 while the city
  was in the midst of communal disorder, according to the
H complainant, he went to Hari Masjid for performing his Namaz.
    STATE OF MAHARASHTRA v. FAROOK                         411
MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.]
While he was within the premises of the Masjid, 4-5 police A
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- B
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 ·  c
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 R.A.K. Marg Police Station and how they were
treated inhumanly. He was shown as accused no. 35 in C.R. D
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
                                                                   E
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 1 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 F
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 witnesses was recorded and which was G
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 H
    412     SUPREME COURT REPCRTS                   [201 OJ 9 S.C.R.


A   Commission, we do not find any error in the decision of the
    ~igh Court in ordering investigation by a special agency like
    CBI. According~ 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
8
  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
C Maharashtra and Ors. (2004) 7 SCC 768, Hari Singh vs. State
  of UP., (2006) 5 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
D 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 UP., (2006) 5 SCC 733,
E   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
F   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 concerned to investigate into
    the offence under Chapter XI I of the Code and submit a report.
G   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 qode. 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
H   process to the accused. After pointing out the same, the Court
     STATE OF MAHARASHTRA v. FAROOK        413
 MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.]

has concluded the dismissal of writ petition filed under Article     A
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.                                 B
     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,     C
we have already adverted to the specific allegation in the
tomplaint 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              D
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                 E
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    F
extraordinary jurisdiction for direction for entrusting the
investigation to independent and special agency like CBI.
Accordingly, we reject the said contention also.

     15. Finally, as rightly pointed out by Mr. Gonsalves, learned
senior counsel for the Respondent No. 1, after the notification      G
of the Government of Maharashtra dated 07.02.2008
consenting CBI to investigate the incident relating to Hari
Masjid, it is not understandable ::is to the opposition of the
direction of the High Court ordering CBI inquiry. It is useful to
                                                                     H
    414      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A refer the Notification of the Government of Maharashtra which
  reads as under:

                   "GOVERNMENT OF MAHARASHTRA

                                NOTIFICATION
B
          Home Department (Special)

          Mantralaya, Mumbai - 400 032

          Dated: 7th February, 2008
c
                No. MIS 0807/CR 276/Part-ll/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
D         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.
E                The consent is also accorded for the inquiry/
          investigation of attempts, abetments and conspiracies in
          relation to or in connection with the offence in the said case
          and any other offences committed in the course of same
          transaction or arising out of the same facts.
F
              By order and in the name of the Governor of
          Maharashtra

          Sd/-

G         A.N. Naiknaware

          Deputy Secretary to Government"

  It is not in dispute about the said notification and the follow up
H action by the CBI after examining several persons. No doubt,
    STATE OF MAHARASHTRA v. FAROOK        415
MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.]
learned senior counsel for the State by drawing our attention           A
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.                               B

     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 Bengal & Ors.
                                                                        c
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         D
     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        E
      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 Ill in general and under Article 21 of the Constitution      F
    ·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               G
exceptional situations as observed in para 70 of the said
judgment.

    17. In the light of the above discussion, we are unable to
accept the stand of the State of Maharashtra and we are in              H
   416      SUPREME COURT REPORTS                [2010] 9 S.C.R.


A 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
B file a final report to the Court concerned within a period of 6
  months. With the above direction, this appeal is dismissed.

   D.G.                                       Appeal dimissed.