- (1.) Leave granted.
(2.) This appeal is directed against the final judgment and order dated 18.12.2008 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 1437 of 2007 whereby the High Court directed the State of Maharashtra to handover the complaint of Farook Mohammed Kasim Mapkar-Respondent No. 1 herein dated 28.08.2006 to the Central Bureau of Investigation (in short 'the CBI'), to register a case in respect of the incident dated 10.01.1993 near Hari Masjid, Mumbai, and to investigate the same.
(3.) After the demolition of Babri Masjid on 06.12.1992, communal riots occurred in various parts of the country including Mumbai. At the material time, Respondent No.2 was the PSI attached to R.A.K. Marg Police Station, Bombay. On 10.01.1993, Respondent No.2 and his staff, while on patrol duty, received a message from Wireless Control Room that a mob of 2000 to 2500 people armed with deadly weapons is resorting to rioting and arson near Hari Masjid, Sewree, Bombay. Respondent No. 2 rushed to the site and found that the mob had become violent and destroying vehicles and other properties and setting up fire at the slum colonies in the nearby areas. Mr. K.L. Bishnoi, Dy. Commissioner of Police - Zone III, also arrived at the site and tried to control the mob in order to restore peace. However, the mob turned more violent and even started attacking the police by resorting to firing from the side of Hari Masjid. Therefore, in order to maintain law and order and to save innocent people, Mr. K.L. Bishnoi, Dy. Commissioner of Police, ordered Respondent No.2 to open fire. In obedience to the orders of the superior Police Officer, Respondent No. 2 and his staff opened fire which resulted in the death of six persons. In respect of the said incident, F.I.R. came to be lodged on 10.01.1993 bearing C.R. No. 17 of 1993 under Sections 143 to 149, 151, 153(B) and 307 of the Indian Penal Code read with Sections 3 and 25 of the Arms Act and under Section 37(i) of the Bombay Police Act at the R.A.K. Marg Police Station against 50 accused persons and about 2000-2400 unknown wanted accused persons and Respondent No.1 was specifically named in the F.I.R. In the year 1994, after completion of the investigation, charge sheet came to be filed before the Competent Court. As far as Respondent No.1 is concerned, the trial against him was separated by the Additional Sessions Court by order dated 05.08.2005. The trial 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 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 station in connection with the registration of F.I.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.I.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 I.O. 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 Writ 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.;