Gujarat High Court
Bhavesh Rameshbhai Patel vs State Of Gujarat on 9 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/20348/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 20348 of 2014
With
CRIMINAL MISC.APPLICATION NO. 20349 of 2014
With
CRIMINAL MISC.APPLICATION NO. 20351 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHAVESH RAMESHBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
M/S THAKKAR ASSOC., ADVOCATE for the Applicant(s) No. 1
MR K.P. RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/01/2015
CAV JUDGMENT
1. Since all the three captioned applications for regular bail arise from a selfsame First Information Report, those were heard analogously and are being disposed of by this common judgment and order.
Page 1 of 14 R/CR.MA/20348/2014 CAV JUDGMENTRule returnable forthwith. Mr. K.P. Raval, the learned APP waives service of Notice of Rule for and on behalf of the State.
2. The applicants - original accused persons have preferred these applications under Sec. 439 of the Code of Criminal Procedure, 1973 praying for regular bail in connection with C.R.No.I-172/2014 registered with Umra Police Station, Dist:
Surat for the offence punishable under Sections 304-II, 337, 338 r/w sec. 114 of the Indian Penal Code.
3. All the applicants had filed their respective bail applications before the Sessions Court which were ordered to be rejected. Being dissatisfied, the applicants have come-up with these applications praying for regular bail.
4. Case of the prosecution:
4.1 The Surat Municipal Corporation floated a tender for the construction work of an over-bridge starting from the Athwalines upto Pal. The same was awarded to one Rachna Construction Company. The construction work of the Flyover commenced from June, 2013. The directors/partners of Rachna Construction company executed a Power of Attorney in favour of one Rajendra Ishwarlal Patel, Sanjaykumar Narottamlal Patel and Pareshkumar Jayantibhai Patel. One Janakkumar Nathalal Patel was appointed as the Site In-charge on behalf of the Rachna Construction Company. M/s. S. N. Bhobe was appointed as the Designer Consultant of the said project. M/s. S. N. Bhobe operates from Mumbai. The Spectrum Techno Consultant Pvt. Ltd., a Project Management Consultant (PMC) was appointed to supervise and ensure that Page 2 of 14 R/CR.MA/20348/2014 CAV JUDGMENT the construction of the bridge takes place in accordance with the design and drawing. The supervision of the said bridge was being done by the Surat Municipal Corporation -Bridge Cell.
4.2 The slab of CP 14 - CP 15 (span No.65) of the said bridge was erected on 25th May, 2014. The slab (span No.65) collapsed on 10th June, 2014 at around 8.00 a.m. from the height of about 40 ft. at the time when the staging plates were being removed. On account of such collapse 10 workers died on the spot and 6 sustained injuries. This was the cause of filing the First Information Report by one Shri S. G. Rana, the Police Inspector of the Umra Police Station, Surat.
5. It is the case of the prosecution that the samples of the debris were collected from the spot of the accident and the same were sent to the Gujarat Engineering Research Institute (GERI), Vadodara for analysis. It is the case of the prosecution that the GERI certified that the compressive strength of the core according to M-55 Grade, should be minimum 46.75 N/mm² (85%) but 6 samples of CP-15 pedestal were found to possess the compressive strength of 25.24 N/mm². Three samples of CP 14 pedestal were found to possess the compressive strength of 29.65 N/mm². Since the compressive strength was found to be less, the samples failed the test. The 12 samples collected from the collapsed span should be of minimum 38.25 N per mm² (85%) out of which 6 samples were reported to have compressive strength of 19.74 N/mm² and the remaining 6 samples were found to have compressive strength of 26.85 N per mm². Thus, according to the GERI, the samples failed the test. It is the case of the prosecution based Page 3 of 14 R/CR.MA/20348/2014 CAV JUDGMENT on such report of GERI that the material used in the construction was of poor quality.
6. It is also the case of the prosecution that the design was finalized by M/s. S.N.Bhobe and Associates Pvt. Ltd., design consultants.
The Sardar Vallabhbhai National Institute and Technology, Surat also gave its report. According to the said institute -
i) The Geometry of the curved voided slab deck, considering centre of gravity, itself is unstable. Normally as per basic theory centre of gravity of curved line (deck) is outside bridge deck, and create large over turning moment.
ii) The curved box girder deck analyzed and designed as equivalent straight span bridge deck. Actually detailed analysis for curvature required considering differential prestressing forces, thermal expansion, prestress losses, torsional moment, influence line, bending moment and shear force etc.
iii) Type and design of bearing, shown in drawing for all four bearings, are same as other straight span, and special consideration for curved span are not consider ed by designer.
Negative reaction developed at inner bearings, due to effect of curvature, are not accounted for by designer.
iv) Normaly, on curved Box Girder, both the bearings at Page 4 of 14 R/CR.MA/20348/2014 CAV JUDGMENT same end are not equidistance from central line of box girder deck. In this case it is at equidistance.
v) As the deck was supported on staging, for 14 days, without any movement or without any sign of instability, it can be concluded that staging possess adequate strength to support curved bridge dead loads.
vi) The Committee is of the opinion that, because the concrete core samples were collected from the disintegrated debris of the collapsed deck from a large height, the strength of concrete might not be indicative of the actual strength. However, the testing of steel reinforcement samples in the laboratory exhibited adequate tensile strength.
7. It is also the case of the prosecution that the State Government appointed an Expert Committee to probe into the sudden collapse of one of the slabs (span 65) of the over bridge. The committee gave its report inter alia stating as under:
i) Based on the site observation, looking to the failure mechanism of support bearings and review of the curved span design it is concluded that the curved span between piers CP 14 and CP 15 collapsed during removal of Staging/formwork due to instability of the curved span under its self-weight.
ii) The design calculations of reaction forces for bearing design are incorrect as it has considered straight span length of 35m. Instability of the curved span between piers CP 14 and CP 15 could have been stabilized by design and construction of Page 5 of 14 R/CR.MA/20348/2014 CAV JUDGMENT appropriate PTFE bearings or by adopting stable geometry of the curved span.
iii) Due to uplift force or inner supports of the curved span CP 14 and CP 15 under self-weight and absence of anti-uplift bridge bearing below curved span, it became unstable after removing of staging/formwork.
iv) In absence of proof checking of design prepared by design consultant design mistakes in the design could not be noticed and rectified during design process.
v) Redesign of both the curved spans i.e. CP 14 - CP 15 and BP 14 - BP 15 of flyover bridge is essential. Redesign of curved span and bearings shall be carried out for strength and stability aspects considering curvature effects in design forces.
8. Thus, according to the prosecution, the applicants herein who are all employees of the Spectrum Techno Consultant Pvt. Ltd., failed to supervise and ensure that the construction of the bridge was being undertaken in accordance with the rules and regulations. According to the prosecution they are alleged to have committed the offence under Sec. 304-II, 337 and 338 of the IPC.
9. It needs to be noted that the investigation is over so far as the three applicants are concerned and the charge-sheet has been filed.
10. So far as the accused applicant of Criminal Misc. Application No.20348/2014 is concerned, he is aged 24. He is Page 6 of 14 R/CR.MA/20348/2014 CAV JUDGMENT a Diploma Civil Engineer. After his arrest, he was also taken on police remand for a period of 4 days. He is working as one of the employees of the Spectrum Techno Consultant Pvt. Ltd. as a Technical Assistant.
10.1 So far as the accused-applicant of Criminal Misc. Application No.20349/2014 is concerned, he is working with the Spectrum Techno Constultant Pvt. Ltd. He is aged 76 years.
10.2 So far as the accused applicants of Criminal Misc. Application No.20351/2014 are concerned, they are also serving with the Spectrum Techno Consultant Pvt. Ltd. The applicant no.1 is aged 32, the applicant no.2 is aged 27 and the applicant no.3 is aged 28 years.
11. It also deserves to be stated that one of the co-accused, namely, Naimesh Kunjkishore Dixit who is the Deputy Engineer of the Bridge Cell, Surat Municipal Corporation was ordered to be released on regular bail by a Co-ordinate Bench vide order dated 28th August, 2014 passed in Criminal Misc. Application No.11985/2014. The case of the prosecution against the co- accused, namely, Naimesh Kunjkishore Dixit is to the effect that in his capacity as the Dy. Engineer of the Surat Municipal Corporation he failed to look after the construction activity of the Flyover in a proper manner.
12. Mr. P.M. Thakkar, the learned Senior Advocate appearing on behalf of the applicants submitted that the investigation is over and charge-sheet has been filed against the applicants of the offence punishable under Sec.304-II, 337 and 338 of the Page 7 of 14 R/CR.MA/20348/2014 CAV JUDGMENT Indian Penal Code. Mr. Thakkar submitted that Sections 337 and 338 are bailable offences. Mr. Thakkar submitted that the Spectrum Techno Consultant Pvt. Ltd., is a well reputed consultant dealing in the business of comprehensive consultancy services to various infrastructure projects across the country. The company has successfully completed more than 100 projects all over the country in the field of Bridges, Flyovers, Power Plants, Ports, Harbors etc. The company has employed qualified Engineers, Survey Engineers, Mechanical Engineers and other Technical experts. The company has almost 60 permanent staff members, experts in different fields. Mr. Thakkar submitted that the company has successfully completed almost 25 Flyovers - Bridges in the State of Maharashtra and around 20 Projects in the Power Sector all across the country. Thus the company has successfully supervised and completed "Flyover at Star Bazar Junction in Surat."
12.1 Mr. Thakkar submits that the work for designing the flyover bridge was allotted to M/s. S. N. Bhobe and Associates Pvt. Ltd. The design work was prepared by M/s. S. N. Bhobe and Associates Pvt. Ltd. The design was ultimately approved by the Surat Municipal Corporation. The function of the Spectrum Techno Consultant Pvt. Ltd., was to get the work executed from the construction company which was asked to do the same according to the drawings prepared by M/s. S. N. Bhobe and Associates and approved by the Surat Municipal Corporation.
12.2 Mr. Thakkar submits that the construction of the Flyover had commenced in the year 2013. In all 68 spans were to be Page 8 of 14 R/CR.MA/20348/2014 CAV JUDGMENT constructed and almost 65 spans were successfully constructed. The Flyover was to be completed within a short period of one month as, only three spans were left to be constructed. The slab of Span No.65 was executed according to the drawing/design prepared by M/s. S.N.Bhobe and Associates on 25th April, 2014. The process for removing the stage plates was undertaken on 10 th June, 2014 and at that time unfortunately the slab collapsed.
12.3 Mr. Thakkar the learned Senior Advocate therefore, prays that considering the nature of the offence and the role attributed to the applicants herein they at least deserve to be released on bail.
13. This application has been vehemently opposed by Mr. K.P.Raval, the leaned APP appearing for the State. Mr. Raval submits that on account of poor quality of material and faulty design the span no.65 collapsed resulting in the death of 10 innocent labourers and injuring 6 others. The learned APP submits that considering the fact that 10 lives were lost this Court should not exercise discretion and order release of the applicants on bail. According to Mr. Raval, the applicants' responsibility was to ensure that the construction work proceeded in accordance with the drawings/design and the quality of the construction was maintained. Mr. Raval has placed reliance on the report of GERI.
13.1 According to Mr. Raval, these applications deserve to be rejected.
14. Having heard the learned counsel appearing for the Page 9 of 14 R/CR.MA/20348/2014 CAV JUDGMENT parties and having gone through the materials on record, the only question that falls for my consideration is whether the applicants should be ordered to be released on bail.
15. Mr. Raval, the learned APP requested that if the Court is inclined to exercise discretion in favour of the applicants, then reasons in detail may not be assigned as that may affect the interest of the prosecution as many other co-accused have filed applications under Sec. 482 of the Code for quashing of the FIR on various grounds.
16. Taking into consideration the request of the learned A.P.P I do not propose to enter into the appreciation of evidence at this stage which is otherwise also not permissible for the purpose of probing whether any prima facie case is made-out against the applicants so far as the offence under Sec. 304-II IPC is concerned. However, I may assign reasons in brief since I am inclined to exercise discretion in favour of the applicants.
i) The investigation is over. The charge-sheet has been filed for the offence under Sec. 304-II, 337 and 338 r/w sec. 114 of IPC.
ii) The applicants are all employees of the Spectrum Techno Consultant Pvt. Ltd. - a company engaged in the business of comprehensive consultancy services for various infrastructure projects.
iii) The investigating agency collected two different reports from two different committees. One committee opined that the accident occurred on account of the defective Page 10 of 14 R/CR.MA/20348/2014 CAV JUDGMENT design of curvature in the flyover for which the Spectrum Techno Consultant Pvt. Ltd. may not be held responsible.
iv) It appears that out of total 68 spans to be constructed almost 64 spans were successfully constructed whereas something went wrong so far as the 65 th span is concerned.
17. I may also take notice of a fact that the Sardar Vallabhbhai National Institute and Technology, Surat in its report has stated that since the concrete core samples were collected from the disintegrated debris of the collapsed deck from a large height, the strength of the concrete might not be negatived of the actual strength. However, the testing of the still reinforcement sample in the laboratory of the institute exhibited adequate tensile strength.
18. I may only say without going further into the merit or demerit of the matter that ultimately the applicants will have to face the trial and if the prosecution is able to establish the case against the applicants as alleged, they may be found guilty. However, this is not a case where they should be denied bail. As observed by the Supreme Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, AIR 2012 SC -830 that in the bail applications, generally, it has been laid down from the earliest time that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of liberty may be considered a punishment, unless it can be required to ensure Page 11 of 14 R/CR.MA/20348/2014 CAV JUDGMENT that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
19. The Supreme Court in the case of Sanjay Chandra (Supra) further observed that bail is the rule and committal to jail an exception. The refusal of bail is a restriction on the personal liberty on the individual guaranteed under Article-21 of the Constitution.
Page 12 of 14 R/CR.MA/20348/2014 CAV JUDGMENT20. In the present case no apprehension worth the name has been expressed by the prosecution that if released on bail, the applicants may abscond or tamper with the evidence or their release may otherwise prove to be detrimental to the interest of the prosecution.
21. In such circumstances referred to above, these applications deserve to be allowed and they are accordingly allowed. Each of the applicants are ordered to be released on regular bail in connection with C.R.No.I-172/2014 registered with the Umra Police Station on they executing a bail bond of Rs.25,000/- (Rupees twenty five thousand only) with one surety of the lime amount to the satisfaction of the trial Court and subject to the following conditions.
(a) Not take undue advantage of his liberty or misuse the liberty.
(b) Not act in a manner injuries to the interest of the prosecution.
(c) Surrender his passport, if any, to the lower Court within a week.
(d) Not leave the State of Gujarat without prior permission of the Sessions Court.
(e) Mark his presence before the concerned police station on every Monday for a period of three months and thereafter on any day in the first week of every month for six months between 10 a.m. and 4 p.m. Page 13 of 14 R/CR.MA/20348/2014 CAV JUDGMENT
(f) Furnish latest address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this court.
22. The authorities shall release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned, will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Trial Court having jurisdiction to try the case. It will be open for the concerned trial Court to delete, modify and/or relax any of the above conditions in accordance with law.
23. It is needless to clarify that the observations made in this order are relevant only for the purpose of considering the bail application and shall not be construed as a final expression on the merit of the matter. The guilt or the innocence of the accused applicants shall be decided strictly by the trial court on the basis of the evidence that may be led at the time of the trial without being influenced in any manner by any of the observations made by this Court in this order.
24. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) Mohandas Page 14 of 14