State of Maharashtra v. Farook Mohammed Kasim Mapkar

# [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_ - _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 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 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._ _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_ - _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_ c D E F G 399 H SUPREME COURT REPORTS 400 [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 MOHAMMED KASIM MAPKAR 401 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 filing of the charge sheet, the trial of six accused persons and respondent no.1. was separated. The trial court acquitted 22 accused persons. A B On 5.8.2006, respondent no.1 filed a complaint and 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. 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 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. c 0 E 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 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] [410C-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; 414H] _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 sec 733 relied on Para 10 - (2004) _1_ sec 768 (2006) 5 sec 733 H STATE OF MAHARASHTRA _v._ FAROOK 405 MOHAMMED KASIM MAPKAR |MOHAMMED KASIM MAPKAR|MOHAMMED KASIM MAPKAR|MOHAMMED KASIM MAPKAR|| |---|---|---|---| |**(2007) 6sec111**|**reliedon**|**Para10**|A| |**(2006) ssec733**|**reliedon**|**Para12**|| |**(201o)3 secs11**|**reliedon**|**Para16**|| 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 order dated 18.12.2008 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 1437 of 2007 whereby the High Court directed the State of Maharashtra to handover the complaint of Farook Mohammed Kasim Mapkar-Respondent No. 1 herein dated 28.08.2006 to the Central Bureau of Investigation (in short 'the CBI'), to register a case in respect of the incident dated 10.01.1993 near Hari Masjid, Mumbai, and to investigate the same. E F 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 MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.] 407 station in connection with the registration of F.l.R. In October, 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, 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 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 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 counsel for the Respondent No. 1 herein (writ petitioner) and Mr. Mohan Jain, learned Additional Solicitor General for CBIRespondent No. 3. 5. Main grievance of the State of Maharashtra with regard to entrusting the investigation to CBI are as follows:- (i) Since, this Court has seized 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. A B c D E F (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 F other similar petitions came for consideration and certain comprehensive directions were issued in matters for admission of students in the waiting list to various colleges in the country. During the pendency of the said writ petition, it is seen that the petitioner moved an independent Writ Petition No. 1508 of 1993 before the Lucknow Bench of the High Court and 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 D 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.] A 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 KapseB 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 F taken by the Public Prosecutor before the High Court stating that the Special Task Force only proceeded on the basis of the version given by the police witnesses. The High Court has observed that it is completely one-sided investigation and it is difficult to countenance an investigation where the statement of none of the injured 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 E F ## 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 8[jurisdiction under Article 226 ][by ][the High Court, ][Mr. ][Naphade ] submitted that the writ petitioner ought to have availed Sections 173, 190 etc. of the Code and the High Court ought not to have issued a writ of mandamus. To strengthen his arguments, he relied on _Gangadhar Janardan Mhatre vs. State of_ 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 MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.] 413 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, 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 supported· by the Commission's report, more particularly, the information that the State Police did not examine the injured witnesses who were available at the spot and suffered a lot. In view of the demolition of Babri Masjid on 06.12.1992, and riots in various places all over India including Mumbai on 10.01.1993, specific assertion by the Respondent No. 1 who is an affected person coupled with the findings of Srikrishna Commission accepted by the State, we are of the view that it is an "extraordinary case" and we hold that the Respondent No. 1 herein is fully justified in approaching the High Court seeking extraordinary jurisdiction for direction for entrusting the investigation to independent and special agency like CBI. Accordingly, we reject the said contention also. C D E F 15. Finally, as rightly pointed out by Mr. Gonsalves, learned senior counsel for the Respondent No. 1, after the notification of the Government of Maharashtra dated 07.02.2008 consenting CBI to investigate the incident relating to Hari Masjid, it is not understandable ::is to the opposition of the direction of the High Court ordering CBI inquiry. It is useful to G 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 - c - Dated: 7th February, 2008 - 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 F > 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. 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, 415 STATE OF MAHARASHTRA _v._ FAROOK MOHAMMED KASIM MAPKAR [P. SATHASIVAM, J.] learned senior counsel for the State by drawing our attention to certain affidavits filed by the officers of the CBI in the High Court submitted that the CBI itself was reluctant to accept the investigation due to various reasons. On going through those affidavits filed by some of the officers, we feel that there is no need to give much importance to the same. A 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. vs. Committee for Protection of Democratic Rights, West Bengal_ & _Ors._ (2010) 3 SCC 571 which reads as follows:- c "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." E In view of the above pronouncement, we hold that in order to protect civil liberties, fundamental rights and more particularly Article 21, this Court and High Courts can very well exercise the power, no doubt, must be sparingly, cautiously and in exceptional situations as observed in para 70 of the said judgment. G 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.