Document Fragment View

Matching Fragments

1. This writ petition under Article 227 of the Constitution of India and section 482 Cri.P.C. has been filed for quashing the process issued by the Additional Chief Metropolitan Magistrate, 38th Court, Ballard peir, Bombay, on 24th September, 1987 in case No, A-38/ Misc. of 1986 against the petitioners-accused for the offence punishable under section 302 read with section 34 I.P.C.

2. The petitioner No. 1-accused No. 1 in the year 1986 was working as Senior Ward Officer on special Duty (Removal of Enchroachment), Municipal Corporation of Greater Bombay, and the petitioner No. 2-accused No. 2 was a police constable attached to the Bombay Police Force and was deputed as bodyguard to the accused No. 1 The case of the accused is that the accused No. 1 was required to perform by the nature of his duty a number of acts which were fully legal but unpalatable to persons unconnected with those duties. The accused No. 1 as Ward Officer on Special Duty had jurisdiction all over Bombay and had powers to remove encroachments and illegal establishments and installations. In the course of such duties accused No. 1 accompanied by the accused No. 2 and other members of the municipal staff went to ther area of Phaltan Road and Mussafirkhana Junction, as there were a large number of unauthorised stalls, encroachments and establishments which were causing obstruction to the traffic and free movement of vehicles and pedestrains. In the course of his duties the accused No. 1 accompained by the accused No. 2 and other members of the municipal staff started removing the stalls on the road near Mussafirkhana and the road was cleared. On seeing the accused No. 1 accompanied by the accused No. 2 and other members of the municipal staff some stall holders who had no licences and who were carrying on unauthorised business and who were causing obstruction to the free movement of traffic started running along with their goods in different directions. As the operation of removing unauthorised stall and establishments started, large number of persons, about 400 to 500, collected near about the area in which the operation was going on. The accused further aver that they and the other members of the staff kept themselves back to avoid wrath of the crowd and the mob become violent and started pleting stones, brickbats, soda-water bottles and wooden blocks from the tops of the buildings near about that area. Some people also indulged in throwing acid bulbs at the accused No. 1 and the other members of the staff and the entire mob was surging itself and approaching in the direction of the accused. The mob became violent and there was imminent danger to the life of the accused No. 1. as well as to the other members of the staff which was accompanying the accused No. 1. Since the mob became violent, the accused No. 1 opened fire in the air and two rounds were fired by the accused No. 1 from his revolver in the air. On hearing the report of firing, some people from the mob receded back and as soon as firing stopped, the mob again came in the direction where the accused No. 1 and the other members of his staff were and they again took their position and started pelting stones, brickbats, soda-water bottles and acid and some members of the staff of the accused No. 1 received injuries on account of pleting of stones. brickbats etc. The mob become furious and it was approaching the accused No. 1 and the other members of his staff in a very angry mood and it was not prepared to listen to the appeal made by the accused No. 1 to disperse and not to obstruct lawful discharge of duties by the accused No. 1 and the other members of his staff. The mob become so violent that the accused No. 1 and the other members of his staff apprehended serious trouble from the mob. The mob was not in a mood to disperse and hence the accused No. 1 again opened fire in the air by giving a warning to the crowd to disperse. The said firing in the air had no effect and the entire crowd started surrounding the accused No. 1 the other members of his staff from all sides and some people from the crowd went on the tops of the nearby buildings and pelted stones, brickbats, acid bulbs and soda-water bottles. Sensing serious danger to the life of the accused No. 1 and also to the other members of his staff, the accused No. 1 again warned the crowd that unless they dispersed, the accused No. 1 and the other members of his staff would have no option but to use such force as will required to disperse the violent mob. However, the appeal made by the accused No. 1 had no effect and the mob started advancing towards the accused No. 1 and the other members of his staff. Since there was danger to the life of the accused, the accused No. 2 fired one bullet from his rifle. On firing the bullet from the rifle of the accused No. 2, the mob started running helter-skelter. The bullet struck one Mehboob Kamal Shaikh who was standing nearby and he subsequently died. In a short while the Deputy Commissioner of Police Chaudhary and other members of the staff of the local police and wireless staff reached the spot and took over the law and order situation which had arise there. The Deputy Commissioner of Police and the other members of his staff made inquiries with the accused No. 1 and also made spot inquiries and it was found that a large number of soda-water bottles, brickbats and stones were near about the spot where the accused No. 1 and other members of his staff had taken their position. The police force took charge of the situation and dispersed the crowd. The accused No. 1 after completing his duties of removing the unauthorised stalls, also left the place.

3. The petitioners-accused further state that the accused No. 1 was called to the Phaltan Road Police-Station and his statements was recorded alongwith the statements of the other members of his staff accompanying him. In the meantime some persons, posing themselves as members of the peace committee, came to the police-station and lodged their complaints. According to the accused, they and the other members of their staff were discharging their duties of removing illegal installations and stalls and unauthorised business which was carried on by unauthorised hawkers and the accused No. 1 as a Ward Officer on Special Duty was fully within his rights to remove cause to be removed the stalls, illegal establishments and unauthorised obstructions on the road. According to the accused, they had visited the area where the incident took place to discharge their duties and while discharging their duties there was an imminent danger to their lives at the hands of the mob which had become furious and violent and was approaching the accused in a menacing manner. It caused apprehension in the minds of the accused that they would receive serious or serve injuries or grievous hurt or even death at the hands of the furious mob and under such circumstances, the accused No. 2 had fired the bullet from his rifle which had struck deceased Mehboob.

5. The learned Counsel for the petitioners-accused took me through the complaint filed by the respondent No. 1 and also through the deposition of the witnesses examined by the complainant in the inquiry held by the learned Additional Chief Metropolitan Magistrate, 33rd Court Ballard Pier, Bombay (Shri R.N. Barulkar). The learned Additional Chief Metropolitan Magistrate has recorded the verification of the complainant and the depositions of the witnesses of the complainant and the order dated 24th September, 1987 for issuing process was passed by Shri. S.J. Shivkar, Additional Chief Metropolitan Magistrate, who succeeded Shri Borulkar. The learned counsel for the petitioners-accused contends that the petitioners are the public servants and they had been to the area of Phalton Road and Mussafirkhana Junction on 13th June, 1986 to perform their public duties. The accused No. 1 as the Senior Ward Officer on Special Duty (Removal of Encroachments), Municipal Corporation of Greater Bombay, was charged with the duty to remove encroachments, illegal establishments and installations causing obstruction to the traffic. The accused No. 1 along with the accused No. 2 and the other members of the staff had been to the Phaltan Road and Mussafirkhana area for removal of the encroachments on the public road. He submits that it is in the evidence of the witnesses Examined by the complainant that when the accused No. 1 along with the other members of his staff went to that area for removing the encroachments, the people started shouting that Khairnar (namely, the accused No. 1) had come and some people started running with their wares. He also submits that the reading of the depositions of witnesses shows that the member of the mob who had collected there caused obstruction to the accused No. 1 and the other members of his staff in discharging their duties and some members of the mob pelted brick bats and sodawater bottles. He submits that the deposition of Vasant Devarkar (P.W. 12), who was attached to the Phaltan Road Police Station shows that on receiving the information that there was riot near Mussafirkhana, he rushed to the scene of offence and prepared a panchnama of the scene of offence. He states that there were some brickbats and broken glass pieces of soda-water bottles at the scene of offence and they were attached. He also referred to the depositions of Abdul Aziz Abu Bakar (P.W. 7), Mohamad Gulam Shaikh (P.W. 8) and Mohamed Ali Qureshi (P.W. 9) and pointed out that all those witnesses have stated that brickbats and soda-water bottles were thrown and those brickbats and broken soda-water bottles were found at the spot. He submits the evidence of the witnesses clearly supports the case of the accused that they were obstructed in the performance of their duties and were attacked by the mob by throwing brickbats, stones and soda-water bottles at them. He submits that it is also in the depositions of those witnesses that the accused No. 1 first fired two rounds from his revolver in the area to disperse the mob, but the mob did not disperse. On the contrary, after accused No. 1 stopped firing in the area, a mob consisting of about 400 to 500 persons gathered there and they were approaching accused and the other members of the staff in an angry mood showering brickbats and soda-waters bottles. He submits that under such circumstances, apprehending danger to there live or causing grievous hurt at the hands of such a violent mob, the accused No. 2 shot one bullet from his rifle, and that bullet unfortunately hit the deceased Mehboob and he succumbed to the injury caused by that bullet.

13. Applying those established principles on which the process issued by the Magistrate can be quashed by this Court in exercised of the inherent powers under section 482 Cri.P.C., it is necessary to consider the facts of the present case. The petitioner No. 1 accused No. 1 was a Senior Ward Officer in the Municipal Corporation of Greater Bombay and he was on special duty of the removal of encroachments. The petitioner No. 2 accused No. 2 was his bodyguard. On 13th June, 1986 at about 11.30 a.m. the accused No. 1 accompanied by two bodyguards, four police constables with rifles and about ten members of the demolition squad of the Municipal Corporation of Greater Bombay had been in a municipal van and a jeep at the junction of Phalton Road and Mussafirkhana Road, Bombay. After the accused No. 1 and the other members of his staff alighted the Municipal van they started removing the encroachments on the road. On seeing the accused No. 1 and the other members of his staff removing the encroachments on the road many persons who were doing their business on the road thereby causing obstruction to the traffic started running away with their wares and some started running leaving their wares there. When the accused No. 1 and the other members of his staff were carrying out their public duty of removing encroachments on the road, a large number of persons gathered there and some members of the mob threw brickbats and soda-water bottles on them. Seeing of some of the members attracting them with brickbats and soda-water bottles, the accused had to retreat and go behind Gulshan-E-Iran Hotel. In order to disperse the mob which was violent and throwing brickbats and soda-water bottles at the accused No. 1 and the other members of his staff, the accused No. 1 by firing two rounds from his revolver tried to seare away the mob but the mob did not disperse. According to the accused, when the mob had become violent and was approaching them, the accused and the other members of the staff apprehended imminent danger to their lives and it was at that time the accused No. 1 asked the accused No. 2 to fire one round and accordingly the accused No. 2 fired one round from his rifle and unfortunately it hit deceased \Mehaboob who was standing in the mob and he succumbed to the injury. The fact that when the accused No. 1 had been to the Mussafirkhana area for removing the encroachments in the discharge of his duties he was faced with an attack of brickbats and soda-water bottles is borne out by the averments in the complaint. The relevant portion from paragraph 4 of the complaint reads thus :