JUDGMENT - A.B. PALKAR, J.:---This is an application for grant of anticipatory bail. It arises out of a case having peculiar facts and circumstances. Applicant Ram Deo Tyagi, is a retired I.P.S. Officer of 1964 batch, having two medals to his credit during his service and was once Police Commissioner of Bombay and has retired. 2. The case arises out of 1992-93 communal riots in Bombay. It is well-known that after the communal riots in Bombay, a one man commission or enquiry (Justice Srikrishna), was appointed on 25-1-1993 and the report of the commission was submitted on 16-2-1998. In September 2000 the Government set up a Special Task Force for making enquiry and finding out whether any offences, illegalities, irregularities, or other objectionable acts have taken place. The Task Force after examining the records of commission made certain enquiries and found that in one such incident dated 5-1-1993, nine persons died and one was seriously injured by police in firing at Suleman Bakery. The evidence and documents were further examined and thereafter first information report regarding that incident was lodged by Mirza Azmatuallan Balg, Inspector of Police, Special Task Force, C.I.D. It also needs to be mentioned here that once commission was dissolved and was reconstituted. According to the applicant, earlier Government had appointed a High Power Committed under the Chairmanship of Additional Chief Secretary and it recommended that no action be taken against the applicant. It is also his case that in an affidavit filed on behalf of the Government in the Supreme Court in a public interest litigation demanding action on Srikrishna Commission report, it was stated on behalf of the Government that the applicant had acted in discharge of his official duty and it is his case that in view of this, the appointment of Special Task Force and registration of F.I.R., is due to political considerations inasmuch as political parties constituting the present Government have promised in their election manifesto to implement the commission's report and some politicians have made statements to that effect. This present action initiated against him is politically motivated and is intended to malign him in the eyes of public and is intended to please certain sections of the public and certain associations. 3. I have made passing reference to this aspect of the matter as arguments were advanced at length. This present action initiated against him is politically motivated and is intended to malign him in the eyes of public and is intended to please certain sections of the public and certain associations. 3. I have made passing reference to this aspect of the matter as arguments were advanced at length. However, at this stage it needs to be pointed out that the Court has to consider the case on facts with a dispassionate approach and without any bias or any other consideration. The incident in question took place on 9-1-1993. In brief the fact of the case as narrated in the F.I.R. 4. The applicant was at the relevant time Joint Commissioner of Police (Crime), Mumbai. It is also well-known that during the communal riots severe damage to life and property was caused. Riots had created a serious situation disturbing public life and tranquility. Curfew was imposed in several parts of Bombay and police pickets were maintained. Police were patrolling in sensitive areas. It was stated before me that the concerned area situated near Mohamadali Road, is a sensitive area and a police picket was maintained near Taj Book Depot. 5. Prior to December 1992, a unit called “Social Operation Squad” (S.O.S.) was formed as part of the Crime Branch and it was manned by competent and experienced officers, who could handle any grave situation involving violence. At the relevant time S.O.S. containing 16 officers arraigned as accused Nos. 2 to 17 in the F.I.R. was on duty in the said area and the S.O.S. was in command of the applicant being Joint Commissioner of Police (Crime). On the eastern side of Mohammadali Road, there is a bakery called “Suleman Usman Bakery” and next to it is a mosque called Chunabhatti Masjid with a madrassa and Taj book depot is on the western side of Mohammadali Road. The area is Muslim majority area. 6. At about 9.30 a.m. on that day, A.S.I. Nagre, in-charge of this police picket spoke to accused No. 17 P.I. Ingle that someone was firing shots at the police picket from roof top of Suleman bakery and he had seen bullets being fired. Three to four further rounds were fired from the roof top and accused No. 17 P.I. Ingle went upto the terrace of Taj book depot. He found 8 to 10 persons hiding behind water tank on the roof top of bakery. Three to four further rounds were fired from the roof top and accused No. 17 P.I. Ingle went upto the terrace of Taj book depot. He found 8 to 10 persons hiding behind water tank on the roof top of bakery. He called upon them by shouting loudly to surrender. However, no one surrendered and accused No. 17 and his party fired at the roof top in retaliation. Accused No. 17 Ingle had seen one person with sten gun and two others with revolvers. At about 1.10 a.m. front door of the bakery was broken open as per orders of the applicant and all the accused entered the bakery. They were heavily armed with weapons like A.K. 47, sten gun, carbine, S.L.R. pistol etc. The applicant had taken full control of the building and search was going on. Five to six persons had been taken in custody and message was sent by applicant to the control room at 1.30 p.m. that police firing is going on, persons who were firing with sten gun have been cordoned and four persons are injured. Two persons are sent to hospital and two are to be sent. Applicant was supervising the operation and he asked the control room to arrange to send P.I. Dongri and A.C.P. Pydhonie. In pursuance of the message P.I. in-charge of Dongri also informed control room that they are proceeding. Commissioner made enquiry with control room regarding whereabouts of the appellant and reply was sent that he was at Mohamadali Road where some people were firing. After about four hours Police Commissioner informed control room that he was reaching the place and from there he will proceed to B.I.T. chawl. At about 1.37 p.m. applicant informed control room that he had already taken round of Umarkhadi and Imambada and was at Dongri, there is no reason to worry. 7. In the police firing ten persons sustained severe gun shot wounds, eight were declared dead before admission to hospital and one died at the hospital and remaining one was treated. He is still surviving and his statement is recorded. He was also examined before the commission. There is no record like station diary entry, control room register or wireless message register etc. about alleged incident which commenced at 9.30 a.m. and was going on for four hours as was informed by the applicant. He is still surviving and his statement is recorded. He was also examined before the commission. There is no record like station diary entry, control room register or wireless message register etc. about alleged incident which commenced at 9.30 a.m. and was going on for four hours as was informed by the applicant. No spent bullets or catridges were traced near about the picket or on the road and no injury was caused to any of the 17 Police Officers nor any other Police Officer was injured. No bullet marks could be delected on the walls of any building or anywhere in the vicinity. The only evidence in relation to firing is the message recorded at 12.31 hours received from Paydhuni Wireless Mobile according to which public was firing at the police from above said bakery and staff of accused No. 17 P.I. Ingle had gone to the building opposite the bakery on terrace and they continued firing in the direction of the bakery. 8. The Task Force enquiring into the incident as per the direction of the Government found that 16 members of the S.O.S. as well as the applicant had entered into the bakery building. Evidence of Anwarali Mohammed Islam, who was examined before the commission, who received gun shot injury in the firing by the police and who is the lone survivor among the ten persons fired at, shows, when he was lying on the water tank on the roof top of the bakery, he was hit by bullet and was hiding behind the water tank, within 10 minutes of which four commandos came there abused him and asked him to take out weapons hidden. As a matter of fact no weapons were found anywhere and no weapon has been seized either in the bakery or outside or in any other building. At about 3.00 p.m. P.I. Sadashiv Laxman Patil recorded F.I.R. of the accused No. 17 P.I. Ingle. As a matter of fact no weapons were found anywhere and no weapon has been seized either in the bakery or outside or in any other building. At about 3.00 p.m. P.I. Sadashiv Laxman Patil recorded F.I.R. of the accused No. 17 P.I. Ingle. This F.I.R. is against 78 persons arrested by the S.O.S. and 10 to 15 others who are alleged to have escaped with weapons and offences of attempt to murder, rioting, criminal conspiracy, and offences under the Arms Act were registered against them at Criminal Revision No. 46 of 1993 of Dongri Police Station at 4.30 p.m. Panchanama of scene of offence was drawn between 4.30 and 5.30 p.m. Panchanama however does not mention where the injured were lying after receiving gun shot wounds by police firing. Places where dead bodies were lying are also not mentioned in the panchanama. There is no mention of the place from where the injured were removed to the hospital and whether they were dead or alive when removed from the place. There is also no mention of presence of blood stains anywhere at or near the scene of offence. Blood stained clothes of victims of firing were taken in-charge of but there is no record to show that they were sent to the Chemical Analyser. Neither shells nor bullets were seized. The bullets retrieved from the dead bodies in postmortem examination were not sent to ballistic expert. Therefore registration of F.I.R. in Criminal Revision No. 46/93 was an attempt to hush up or to present a totally pervert picture of the incident causing deaths of 9 persons and fatal injury to one in police firing. Inspite of this neither the F.I.R. nor the panchanama in that case indicate that police firing was justified. There is no material to show that there was firing by the public as is stated in the F.I.R. of Criminal Revision No. 46/1998. The allegation that the persons who escaped were carrying weapons like revolver, sten gun etc. appears to be fake and even according to the panchanama drawn in that case only 7 empty and two live catridges were recovered from the place of offence. There is no evidence of firing at the police by the public. There is no mention of weapons recovered in that panchanama and it is silent about the search of the Masjid although police had entered the Masjid. There is no evidence of firing at the police by the public. There is no mention of weapons recovered in that panchanama and it is silent about the search of the Masjid although police had entered the Masjid. The inquest panchanama shows that gun shot wounds had blackish appearance. However, expert's opinion was never obtained to find out the probable range from which the persons were fired at. 9. There is no material even to create suspicion that any of the victim was carrying any fire arm or was indulging in violence. The antecedents of the deceased do not show that they were involved in illegal activities at any time. They all belong to working class and it is to cover up the incident resulting their death, the F.I.R. was registered and further investigation of the offence was carried out with a view to justify the firing. 10. In this Court arguments were advanced at length by Shri Shirish Gupte, learned Counsel and Shri P.R. Vakil, learned Special Public Prosecutor. Before proceeding to discuss the law and the facts further, I would like to point out that even though arguments were advanced at length and number of points were urged, I am restricting myself to the relevant aspect of law and factual matrix of the matter. 11. Shri Shirish Gupte, learned Counsel for the applicant relied on a judgment of the Supreme Court in the case of (Gurbaksh Singh Sibbia v. State of Punjab)1, reported in A.I.R. 1980 Supreme Court page 1632. While discussing scope of section 438 Cri.P.C., the Apex Court has stated para 31 as under: “In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessary true. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessary true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail.” (Underlining is mine). It is necessary to point out that section 438 Cri.P.C. as applicable to Maharashtra has been amended by Maharashtra Act 24 of 1993 and the amended section reads as under: “438.(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest, he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors:— (i) the nature and gravity or seriousness of the accusation as apprehended by the application; (ii) the antecedents of the applicant including the fact as to whether he has on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence; (iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and (iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.” In a judgment reported in 1996 Cri.L.J. 808 (R.K. Khatri v. The State of Maharashtra)2, a learned Single Judge of this Court (Vishnu Sahai, J.) has pointed out in para 10 as under: “10. A perusal of section 438 Cri.P.C., 1973 and the provisions of section 438 Cri.P.C. as applicable in the State of Maharashtra would show that in the matter of granting anticipatory bail under the later certain considerations like--- (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant; and (ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence; have to be taken into consideration by the Court. The aforesaid two considerations are not provided in section 438 Cri.P.C., 1973 which came up for consideration before the Apex Court in the case reported in A.I.R. 1980 S.C. 1632 (supra). The aforesaid two considerations are not provided in section 438 Cri.P.C., 1973 which came up for consideration before the Apex Court in the case reported in A.I.R. 1980 S.C. 1632 (supra). Therefore, it would be legitimate to hold that the aforesaid decision would not have a blanket bearing in the present case which has to be decided in the light of the provisions contained in section 438 Cri.P.C. as applicable to the State of Maharashtra.” It is also observed by the learned Judge that the yardstick contained in section 438 Cri.P.C. as applicable in the State of Maharashtra if taken into consideration then obviously the prima facie grave and serious nature of the accusation against the applicant ........................ would have material bearing. Learned Counsel also drew my attention to a judgment reported in 1988 Supreme Court Cases (Crime) 196, (Kiran Devi v. State of Rajasthan others)3, in which the Supreme Court expressed that anticipatory bail should not have been granted in a murder case when investigation is incomplete even though applicant was a woman. 12. The allegations in the F.I.R. are borne out by the entries of wireless message. Shri P.R. Vakil, learned Special P.P. has produced copies of the extract of the relevant entries. A brief reference to the same shows that at 12.31 p.m. a message was sent to the control room from Pyadhuni wireless mobile that a Suleman bakery, Mohamedali road, public was firing at the police. Staff has gone to a building in front of the Suleman bakery and there is firing going on from terrace towards Suleman bakery. This obviously means firing by police from the terrace of the opposite building towards bakery. It is also noted that from Suleman bakery members of public were firing towards Minar Masjid. At about 12.52 p.m. there was again message about firing from Suleman bakery by public and from control room message was sent to OCP-I and Joint Commissioner (Crime) (applicant) as well as Police Inspector and the A.C.P. Paydhuni that at Suleman bakery there is firing from terrace. Thereafter at 1.03 p.m. from Joint Commissioner of Police (Crime) (applicant), there was message to control room “I am at Suleman bakery and there is no firing, everything is calm”. Another message at the same time sent by the applicant to the control room was that one man was seen with a sten gun near Suleman Usman bakery. Thereafter at 1.03 p.m. from Joint Commissioner of Police (Crime) (applicant), there was message to control room “I am at Suleman bakery and there is no firing, everything is calm”. Another message at the same time sent by the applicant to the control room was that one man was seen with a sten gun near Suleman Usman bakery. Police were trying to catch hold of him. He is surrounded and from all sides police firing is going on. At 1.10 p.m. message was sent from Joint Commissioner (applicant) to the control room that persons were firing from above Suleman Usman bakery and that building is taken completely in control, further search is going on and police are taking them in custody. They have already taken 5 to 6 persons in custody. Another message was sent that police are taking action against persons who are firing from Suleman bakery. Again at 1.30 p.m. message was sent from Joint Commissioner (applicant) to the control room that there was police firing. People were firing from one sten gun and one rifle. They are surrounded. In that four persons are injured. Two are sent to the hospital and two are to be sent with a specific statement of the applicant. “I am supervising the operation”, and with a request to send Inspector of Dongri and A.C.P. Paydhuni. This information was conveyed by the control room to the Police Commissioner. At 1.37 Police Commissioner informed the control room that he is reaching the spot till that time take stock of the situation of B.I.T. chawl and he would go to the B.I.T. chawl afterwards. Thereafter message was sent by the applicant to the control room that he has taken round of Umarkhadi and Imamwada and he is at Dongri and if there is any firing police would go to that place and there is no reason to worry. It was tried to be explained on behalf of the applicant that he was at Minar Masjid and mistook that spot to be the place where he was asked to go by the control room. Suffice it to say that at this stage that explanation need not be considered and even otherwise prima facie it is not satisfactory. In the light of these facts let us consider the argument of the learned Counsel Shri Gupte. Suffice it to say that at this stage that explanation need not be considered and even otherwise prima facie it is not satisfactory. In the light of these facts let us consider the argument of the learned Counsel Shri Gupte. The main points argued by him are:— (1) There is abnormal delay in registration of offence. The incident is of 1993 and more than 8 years have passed. (2) There are political considerations which have weighed in instituting prosecution. At one stage this very Government had taken decision not to take any action against the applicant and thereafter for political reasons and to satisfy certain sections, this action is being taken. (3) In any case applicant cannot be said to have any intention to cause death of anybody and therefore, there is no question of charge of murder being made out. The firing was by the subordinate officers and even according to the prosecution applicant had not given any order for firing. There cannot be vicarious criminal liability. (4) Considering the past record of the applicant and the post that he occupied, it is not likely that he would flee from course of justice. (5) Custodial interrogation is not necessary and there is no question of any discovery as per section 27. (6) No new material is likely to be found now especially by taking applicant in custody. (7) If at all as a result of investigation it is found that the applicant had committed any offence he may be charge-sheeted and he will face trial. 13. As against this, Shri P.R. Vakil, learned Special P.P. contended:—- (1) There is delay but it has reasons. (2) It is not a case which can be said to have been instituted due to political vendetta. (3) Intention to cause death of a particular individual is not necessary. (4) Whether custodial interrogation is required or not would be decided by the investigating agency. (5) There are number of aspects of the matter on which some clarification or explanation will be required from the applicant and it is not the law that if a person says, he will not abscond, he will attend the concerned officer or the Police Station for interrogation or submit himself for interrogation, he should not be arrested especially when allegations are grievous in nature. (6) There has already been tampering with the evidence by the police by registering a fake F.I.R. and by destroying evidence and the possibility of tampering with the evidence cannot be ruled out. (7) As the firing was unauthorised and illegal there was no question of existence of any right of private defence and question of acting in excess of that right does not arise. 14. Having given my anxious considerations to all material aspect of the matter, I find that admittedly there is delay and it can be said to be even culpaple. Question however, is as to who is responsible for this. Can members of the family of victims be said to be responsible for not going to Police Station. Could they be expected in that situation to approach any authority and make any grievance for the death caused in police firing. When persons who were expected to complain about the incident were arrested and involved in crime and the prosecution case is that the action taken was fake and was a deliberate step to cover up the police action, delay loses all significance. It is true that there are political overtones to the prosecution but what the Court has to see is not whether there are political reasons. According to me, if for political reasons, a person is being involved on unfounded allegations in which prima facie there is no substance, the Court must step in to protect the man. On the contrary if it is found not only that the allegations are grievous, but there appears substance in it at least prima facie, then whether there is enmity or politics involved becomes immaterial. I would agree with the learned Counsel for the applicant that there is nothing placed on record to show that applicant is likely to abscond or would not be available for trial. The question however is whether on that ground alone, he is entitled to anticipatory bail in the face of the allegations substantiated by circumstantial evidence. In this regard amendment to section 438 Cri.P.C. and the consequent judgment of this Court reported in 1998 Cri.L.J. 808 (supra) which explains and distinguishes A.I.R. 1980 S.C. 1632 (supra) are very relevant. The nature, gravity and seriousness of the accusations is the crux of the matter. As pointed out, the antecedents of the applicant are credit worthy. In this regard amendment to section 438 Cri.P.C. and the consequent judgment of this Court reported in 1998 Cri.L.J. 808 (supra) which explains and distinguishes A.I.R. 1980 S.C. 1632 (supra) are very relevant. The nature, gravity and seriousness of the accusations is the crux of the matter. As pointed out, the antecedents of the applicant are credit worthy. To his credit there are two police medals and there is nothing to point out that he would not be available for interrogation or for trial. However, if only for the reasons that the applicant would not abscond, he would be available for interrogation or trial, if anticipatory bail is to be granted, then the aspect or nature, gravity and seriousness of the accusation would be overlooked. Even in the absence of amendment introduced for Maharashtra, in my view the consideration or gravity and seriousness of accusation has always weighed and must weigh with the Court. 15. It was strenuously contended by Shri Gupte, learned Counsel for the applicant that ultimately what is the involvement of the applicant. Can he be said to have intention to cause death of any of the person. Had he any enmity, can he be attributed with a communal bias? Accepting that there was no animosity or bias what is required to be considered is the nature of the act of those who actually fired. If their act amounts to murder or culpable nomicide then comes the question of liability of the applicant. While emphasising on the aspect of want or intention, learned Counsel appears to have overlooked Clause Four of section 300 of the I.P.C. That if a person committing the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or injury. I need not divulge much on this aspect and I have just hinted to one possible aspect of the matter. 16. I need not divulge much on this aspect and I have just hinted to one possible aspect of the matter. 16. I have intentionally given details of the wireless message noted in the police record and from the various message it can be inferred that there is no police record of any station diary or wireless message to show that there was firing by the mob or public earlier to 12.30 p.m. There is no record to show firing at 9.30 a.m. by public towards police. The allegation in F.I.R. of Criminal Revision No. 46/93 (Dongri) is that the firing by public was from 9.30 a.m. The F.I.R. starts with this allegation. Normally the message would immediately be sent to the control room and also to the applicant. The task force found no evidence of firing from 9.30 a.m. in any police record. Inquest panchanama is drawn at J.J. Hospital and not where the bodies were lying. The scene of offence panchanama is conspicuously silent about the spot where the dead bodies were lying. It is not clear from the entire record as to where actually the bodies were found. There is no mention of blood stains any where in the panchanama. What is the reason? Can it not be said to be an attempt to hide facts and not disclose where dead bodies were lying? The empty cartridges found were of A.K. 47 which were with police. There is no allegation of firing by public with A.K. 47. One empty cartridge of S.L.R. bearing figure 7.62/75 and two empty cartridges of bullets used in pistol were found. Does it show firing from 9.30 a.m. for 3-4 hours. Surprisingly blood stains on one wall are mentioned but the finding of bloodstains at the various spots where bodies were found does not find place in the scene of offence panchanama. 17. According to the F.I.R. in Criminal Revision No. 46 of 1993 (Dongri), when the police party entered the bakery, applicant was accompanying them, and about 10 and 15 persons armed with choppers knives, iron bars etc. came down from the first floor and advanced towards the police. 17. According to the F.I.R. in Criminal Revision No. 46 of 1993 (Dongri), when the police party entered the bakery, applicant was accompanying them, and about 10 and 15 persons armed with choppers knives, iron bars etc. came down from the first floor and advanced towards the police. Police warned them to surrender but they did not and attacked the police party and some of the officers and men of S.O.S. opened fire and they could manage to go to the first floor where there were 40 to 50 persons and they also obstructed the police party. However, they were pushed to one side by use of minimum force and police went on the top, where there were 15 to 20 persons hiding behind the water tank and walls of Chunabhatti Masjid. Police took positions, warned them to surrender. They did not surrender. Some of them had fire arms, viz. automatic guns and revolvers and started firing at the police indiscriminately and officers and men of S.O.S. returned fire from their weapons and thereafter 5 to 10 persons jumped inside Chunabhatti Masjid and gutter passage behind the bakery and persons carrying fire arms jumped down. If this story is to be accepted, certain hurdles will have to be crossed. No Police Officer has received any injury. There is no evidence pointing to the firing by the public, in any case to the extent claimed as I have referred to the empties found in earlier para. Such evidence does not appear to have been collected during investigation of CR 46/93 (Dongri). The allegation that all those having arms escaped also does not appear credible because admittedly there was curfew and police picket. Police were patrolling and when all the roads were clear, persons who escaped could have been chased and apprehended by the police who were in large number and to whom assistance of nearby Police Station and police picket was available. It also does not appear that they had taken shelter in Masjid because police did enter the Masjid and did not find any person, nor any article worth mentioning. Even the so called choppers, knifes etc. which were with the persons inside the bakery are not seized and if at all they were armed with such weapons. Can the firing be justified, that also to this extent? 18. Even the so called choppers, knifes etc. which were with the persons inside the bakery are not seized and if at all they were armed with such weapons. Can the firing be justified, that also to this extent? 18. From the gun shot wounds on the dead bodies the fact that there was indiscriminate firing is obvious. I would make a passing reference. Post-mortem notes in A.D.R. No. 22/93 show that the person 20 years of age had gun shot wound having guttering effect. Post-mortem note in A.D.R. 23/93 shows that person of 40 years had two gun shot wounds one going from above the right arm to the chest and the other from right side of the chest. These bullets are retrieved but not collected. In A.D.R. 24/93 a person of 30 years of age had two gun shot wounds one entering from abdomen and another in the region of chest back side. In A.D.R. 67/93, a person of 30 years of age had four gun shot wounds. In A.D.R. 25/93 a person aged 20 years had four separate gun shot wounds. In A.D.R. 26/93 a person aged 34 years had a completely damaged skull. In A.D.R. 27/93 a person aged 20 years had gun shot wounds where the bullet entered on left side of chest and came out from the sternum. In A.D.R. 28/93 a person aged 30 years was fired with two bullets and in A.D.R. 29/93 a person aged 22 years had sustained one gun shot wound. Apart from the gun shot wounds, there are also contusions on some bodies which remain totally unexplained. Taking into consideration the gun shot wounds on the bodies, it is obvious that more rounds than the injuries received by these persons must have been fired as some shots would not hit the object. There is no evidence collected regarding the effect of gun shots on the flooring or the walls. The question to be considered is where the applicant was, when the firing was going on. Admittedly he had full control over the S.O.S. and other police personnel. Accepting that he did not order firing, it is obvious that he was present when the firing was going on. The question would be what applicant did when firing was going on. Can he be said to be unaware? Admittedly he had full control over the S.O.S. and other police personnel. Accepting that he did not order firing, it is obvious that he was present when the firing was going on. The question would be what applicant did when firing was going on. Can he be said to be unaware? Could he not stop the firing and what is the effect of such inaction on his part and when he was the person in-charge of the S.O.S. He had the authority to stop firing. What would be the effect of such omission on his part is also a factor to be considered. All these facts will have to be considered in the light of the contention that registration of Crime No. 46/93 of Dongri Police Station was an excuse to hush up the firing incident. Non-disclosure of the specific spots where bodies were found is also an aspect of matter supporting that allegation. 19. Another aspect of the matter is that the postmortem injuries show that almost all dead bodies were naked. Clothes on the bodies were removed but there is no panchanama nor it is alleged that they were seized and preserved. Retrieved bullets were also not collected and sent to expert. If any bullets or weapons were found inside the bakery or outside or nearby, they are also not collected and seized. When no police personnel received any injury by revolver or any fire arm, the case or police firing in retaliation in their own defence will have to be considered. It will be for the accused to show that there was probability of acting in self defence. This is not the stage to consider all these aspects in details. Prima facie I do not find there existed any right or private defence in the absence of any material to show that there was firing by public. The staircase and the passage of the bakery is alleged to be so narrow that it would be impossible for more than two persons to climb it at a time and therefore, the incident alleged in the F.I.R. 46/93 is improbable. 20. Another aspect of the matter is the allegation of destroying evidence and making out false case for defence are serious. In view of the gravity of the charges further detailed investigation in the matter is required. 20. Another aspect of the matter is the allegation of destroying evidence and making out false case for defence are serious. In view of the gravity of the charges further detailed investigation in the matter is required. Investigation is in progress, some witnesses are examined and some more are to be examined and therefore, even after accepting the contentions that politics is involved, and it is not likely that applicant will abscond or will not be available for interrogation, in my opinion, in view of the above facts and circumstances, applicant is not entitled to a direction from the Court that he should be released immediately in case or his arrest. I am not considering the arguments advanced by the learned Special P.P. that there is no case even for grant of bail inasmuch as that stage not come. In fact F.I.R. of Crime No. 46/93 of Dongri Police Station, inquest panchanama, panchanama of scene of offence are the pieces of evidence which go against the defence of police having acted for their own protection. Therefore, in my view this is not a fit case for grant of anticipatory bail. 21. Before concluding the order, it is necessary to point out certain that untoward incidents have taken place when the matter was being heard. Hearing required some days as Senior Counsel appearing for the parties at time were not available and this Court has to deal with number or bail applications and admission matters in a day and all others cannot be kept waiting. However, pending hearing of the application Mrs. Diena Raj, daughter-in-law of the applicant, who is a practicing Advocate and a member of the Bombay and Goa Bar Associations received threat from some miscreants that also within the Court premises. She has put in it on record in writing. Applicant also received threat on telephone of which he gave report to the Commissioner of Police and the source of that telephone call was traced and report to that effect also appeared in newspapers. Surprisingly he was not arrested and no action was taken and was allowed to go. This matter has been given publicity out of proportion by the media. Surprisingly he was not arrested and no action was taken and was allowed to go. This matter has been given publicity out of proportion by the media. Even when on request of learned Counsel for applicant with consent of the learned Special P.P. part of the hearing was taken in chamber after threats were given, reporters were allowed to remain present even in the chamber. I have mentioned this only to keep it on record. Application of the daughter-in-law or the applicant is also taken on record. 22. Some argument was also advanced on behalf of the applicant with reference to section 8(B) of the Commissioner of Enquiries Act. It is true that this case is outcome of the report of the enquiry commission. However, after getting the report enquiry has been carried out by the Task Force set up for that purpose and provision of section 8(B) in my view is restricted to the enquiry before the Commission. Section does not apply to prosecution which is the result of an act which was also covered by the purview of the Commission. The prosecution is independent and in any case the argument is not relevant at this stage. 23. All the above observations being prima facie are not to be considered while deciding bail, application, if any, by any Court and much less at the stage of trial. 24. The documents tendered by the learned Counsel for the parties are taken on record, a list of which is separately prepared. 25. In view of my finding that the applicant is not entitled to anticipatory bail, application fails and is dismissed. 26. Shri Shirish Gupte, learned Counsel for the applicant makes a request at this stage that the order dismissing the application be stayed. Four weeks time is granted to the applicant and the applicant shall surrender before the Investigating Officer on 8-8-2001, unless there is contrary direction from the Apex Court. In the meantime the applicant shall not be arrested. Application dismissed. -----