Gujarat High Court
Harshadbhai Danubhai Katariya vs State Of Gujarat on 3 April, 2025
NEUTRAL CITATION
R/CR.A/468/2025 ORDER DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 468 of 2025
With
R/CRIMINAL APPEAL NO. 469 of 2025
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HARSHADBHAI DANUBHAI KATARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PK JANI, Senior Advocate assisted by MR MAHARSHI V PATEL(6548) for the
Appellant(s) No. 1
MR MANGAL V GADHAVI(11922) for the Opponent(s)/Respondent(s) No. 2
MR PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/04/2025
COMMON ORAL ORDER
"For ours is a battle not for wealth or for power. It is a battle for freedom. It is the battle of reclamation of human personality."
-- Dr. B.R. Ambedkar.
(Address at the All-India Depressed Classes Conference held at Nagpur in July 1942 .)
1. Both applicants are facing the same allegations, and their respective anticipatory bail applications were rejected by the learned Special Judge (Atrocity) by assigning same reasons. Hence, both the appeals were, with consent, heard together and decided by a common oral order.
2. Admit. Learned APP waives service of notice for the respondent- State and Mr. M. G. Gadhvi, learned advocate waives service of notice of admission for the respondent-complaint.
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3. The present appeals, filed under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Atrocities Act'), are preferred by the appellants seeking anticipatory bail in the event of their arrest in connection with FIR No. I-C.R. 11211005250023 of 2025, registered with Patdi Police Station, Surendranagar for the punishable under Sections 105, 125 and 54 of the Bhartiya Nayay Sanhita, 2023 and Section 3(1)(j) of the Atrocities Act and Sections 7, 8 and 9 of the Prohibition Employment as Manual Scavenger and their the Act, 2013, 2013 ( for short, "the Act, 2013") by assailing the dismissal orders dated 12.02.2025 passed by the 4th Additional Sessions Judge Dhrangadhra in Criminal Misc. Application No.31 of 2025 and in Criminal Misc. Application No.32 of 2025.
4. The appellant in Criminal Appeal No. 468 of 2025, Harshadbhai Danubhai Katariya, is serving as a Sanitary Officer in Patdi Nagarpalika, while the appellant Mosambhai Ghanshyambhai Patel in Criminal Appeal No. 469 of 2025 is the Chief Officer of Patdi Nagarpalika.
5. Upon issuance of the notice, learned advocate Mr. M.V. Gadhvi has filed an objection on behalf of the complainant which is considered.
6. The prosecution case, in a nutshell, is that three persons namely, Chiragbhai Kanubhai Patadiya, Jayeshbhai Bharatbhai Patadiya, and Chetanbhai Mangabhai Patadiya were working on a contract Page 2 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined basis with Patdi Nagarpalika. On 21.01.2025, at around 8:00 a.m., they received oral instructions from their contractor and officers of the Nagarpalika to pump and clean the sewers located near Devotion School. While cleaning the sewer, which was approximately 15 to 20 feet deep, Chiragbhai and Jayeshbhai entered the manhole and around 11:30 a.m., while they were working inside, there was a gas leak, and due to the release of toxic gas into the chamber, both Chiragbhai and Jayeshbhai died of asphyxiation. Thereafter, Chetanbhai Patadiya suffered toxic gas exposure while attempting to rescue his colleagues. Consequently, the impugned FIR came to be lodged by the uncle of deceased Jayeshbhai Bharatbhai Patadiya for the offence under Sections 105, 125 and 54 of the Bhartiya Nayay Sanhita, 2023 and Section 3(1)(j) of the Atrocities Act and Sections 7, 8 and 9 of the Act, 2013.
7. Mr. P.K. Jani, learned Senior Advocate assisted by Mr. M.V. Patel, learned advocate appearing for the appellants submits that the appellants have nothing to do with the offence have been falsely implicated. A perusal of the FIR reveals that the entire case has been fabricated with the intention of falsely implicating the appellants. The appellants have no past antecedents. There is no direct involvement of the present appellants in the cleaning work, as the deceased were outsourced by the contractor. Any lapses or negligence in this regard attributed to the contractor, who is accused No. 3 herein. The contract/agreement was executed between the contractor and Nagarpalika, and as per its terms and conditions, the contractor was responsible for carrying Page 3 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined out the cleaning work. The appellants have no role in this matter once the work was assigned to the contractor. The contractor violated the terms of the contract, particularly conditions No. 37 and 39. As per these conditions, no person was allowed to enter the manhole, and the contractor was required to adhere to the guidelines set by the Hon'ble Apex Court. Despite this, he acted negligently and permitted workers to engage in manual scavenging. On the contrary, the present appellants were performing their duties with utmost care and sincerity. Even the Municipality has paid Rs.30,00,000/- as compensation to the victims, in accordance with the guidelines issued by the Hon'ble Supreme Court of India. The appellants are ready and willing to joint the investigation. In view of the above, the appellants respectfully pray for the grant of anticipatory bail.
8. The learned APP appearing for the respondent-State and learned advocate appearing for the respondent-complainant have opposed the appeals and submitted that the appellants are directly involved in the offense. It is submitted that, considering the bar under Section 18, the appeals is not maintainable. The complaint was filed at the instance of the uncle of the deceased, Jayeshbhai Bharatbhai Patadiya, who was employed as a sweeper on a contract basis in Nagarpalika under the control and supervision of both appellants herein. It was the prime duty of the appellants to oversee the affairs and activities related to the cleaning and maintenance of the sewerage system. However, despite their knowledge, negligent practices were ongoing. On 21st February 2025, under the oral instructions of the accused, Page 4 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined the deceased Chiragbhai Patadiya (a minor), Jayeshbhai Patadiya, and Chetanbhai Patadiya, all of whom were working as contract- based sweepers in Patdi Nagarpalika, were compelled to work in the sewerage pumping station without being provided any safety equipment for cleaning purposes. Due to a gas leak from the safety tank, two workers lost consciousness inside the manhole. Subsequently, Chetanbhai Patadiya, who was standing outside, entered the manhole in an attempt to rescue them. An ambulance was called, but before they could be transported to the hospital, they succumbed to death. In light of these facts, it is evident that the appellants are directly involved in the offense. Hence, a prima facie case is made out under the Atrocities Act and under Sections 7, 8, and 9 of the the Act, 2013. Section 7 of the the Act, 2013 explicitly prohibits the engagement or employment of any person for hazardous cleaning of sewers, septic tanks, pits, or manholes. Despite this, under the instructions of the appellants, the deceased entered the sewer for cleaning, resulting in the unfortunate incident. Hence, the present appellants have violated the mandatory provisions of the Act. It is further submitted that the appellants had filed a quashing petition before this Court, which was dismissed on merits by the Coordinate Bench. This establishes that the learned Sessions Judge did not commit any error in dismissing the appellants' appeals. Therefore, it is prayed that the present appeals be dismissed.
9. Further, the learned advocates appearing for the respondents Page 5 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined submit that an identical petition relating to the same issue is pending before this Court in Writ Petition (PIL) No. 225 of 2016, filed by 'Manav Garima,' wherein Civil Application No. 1 of 2025 was also filed, and Patdi Nagarpalika was joined as a party respondent. This Court, by its order dated 30 th January 2025, observed that the present appellants, being the principal employers, were duty-bound to supervise the work and the workers engaged on a contract basis on a daily basis. It is an undisputed fact that one of the workers involved in the incident was a minor, which is a serious matter. Considering this, the present appellants were well aware that the workers engaged by the contractor were not provided with adequate safety measures. Despite this, a WhatsApp group named 'Patdi Nagarpalika Bhugarbh Gutter Sanitation Shakha' was created by the sweepers, in which the present appellants were active participants. They were fully aware of the daily cleaning and sewerage activities, as photographs of the same were also posted in the group. In light of the aforesaid facts, the assertion that the appellants were unaware of the incident and are innocent is not credible and does not hold merit.
10. Having heard the learned advocates for the respective parties and having gone through the evidence on record. it appears that the present appeals are filed under Section 14A of the Atrocities Act, and the scope of appeal is limited to examining the correctness of the order passed by the Trial Court/Special Court. Once the High Court has considered an appeal regarding the grant or refusal of Page 6 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined bail, in an appeal, the Court's role is to determine whether the Special Court erred in granting or denying relief to the appellant based on the impugned order. The Court must assess whether the lower court's decision is legally and factually sound and whether its findings align with the relevant legal principles governing bail applications under the "Atrocities Act".
11. After perusing the FIR, it appears that three contract workers belonged to SC community namely Chiragbhai Kanubhai Patadiya, Jayeshbhai Bharatbhai Patadiya, and Chetanbhai Mangabhai Patadiya, were employed by Patdi Nagarpalika. On January 21, 2025, they were instructed to clean sewers near Devotion School. While working inside a 15- to 20-foot-deep manhole, Chiragbhai and Jayeshbhai succumbed to toxic gas exposure. Chetanbhai, attempting to rescue them, also suffered severe exposure. Among the two deceased, one was a minor. Despite being minor, he was employed by the contractor and was compelled to engage in such hazardous activity. The role attributed to the present appellants is that they remained negligent in their duties as officers, having failed to supervise and oversee the cleaning activity performed by the contractor. It is an undisputed and admitted fact that both applicants are employees of the Nagarpalika and, as principal employers, were duty-bound to monitor the entire work. Despite being fully aware that the workers belonged to the SC/ST community and that one of them was a minor, they allowed them to enter the manhole without implementing any safety measures.
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12. In view of the above, prima facie, an offence under Section 3(1)
(j) of the Atrocities Act and Sections 7, 8, and 9 of the the Act, 2013 is made out. Considering the applicability of the Atrocities Act, Section 3(1)(j) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, it prohibits compelling a member of a Scheduled Caste or Scheduled Tribe to perform manual scavenging or employing or permitting such employment for that purpose. The word "permits" implies broader liability, encompassing not only direct involvement but also allowing or authorizing others to commit the prohibited act.
13. The primary objective of Section 3(1)(j) is to eradicate the practice of manual scavenging, a degrading and exploitative form of labor that disproportionately affects members of Scheduled Castes and Scheduled Tribes. This provision covers:
(i) Forcing someone into manual scavenging.
(ii) Employing someone for manual scavenging, which includes hiring or engaging a person for such work
(iii) Permitting employment for manual scavenging, where the term "permits" extends liability to those who knowingly allow or authorize the employment of a Scheduled Caste or Scheduled Tribe member for manual scavenging, even if they are not directly involved in the hiring process.
The inclusion of the word "permits" creates constructive or vicarious liability, meaning that a person can be held accountable even if they do not directly employ someone for manual scavenging but knowingly allow or authorize such Page 8 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined employment. For instance, if a contractor hires a worker from a Scheduled Caste or Scheduled Tribe to clean a drain, and an official or authority is aware that the worker is engaged in manual scavenging but takes no action, that official may also be held liable under Section 3(1)(j). This provision is crucial and introduced for ensuring protection against exploitation and discrimination and promoting the eradication of manual scavenging. In the present case, messages, photos, and statements recorded during the investigation particularly from WhatsApp groups clearly reveal that the appellants had knowledge of the deceased's employment in such hazardous activities.
14. The bar under Section 18 would be attracted. Furthermore, the statement of Chetan Patadiya, who was present at the scene and is a witness, was recorded during the investigation, along with statements from other witnesses. They all affirmed the involvement and knowledge of the present appellants regarding the manual scavenging that took place on the fateful day. It was revealed that, in the morning, the Chief Officer, Sanitary Officers, and the contractor were informed about the ongoing activity. However, they failed to pay any heed to the situation and did not provide any safety measures to the workers, instead shifting the responsibility onto the contractor.
15. It is true that there is no absolute bar on exercising powers Page 9 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined under Section 482 of the BNSS to grant pre-arrest bail, even in cases under the Atrocities Act, if no offence is made out under the Act. In this regard, it is apposite to refer to the judgment of the Hon'ble Apex Court in the case of Hitesh Verma vs. State of Uttarakhan reported in (2020) 10 SCC 710 and Prathvi Raj Chauhan vs. Union of India reported in (2020) 4 SCC 727.
16. In the present case, the quashing petition, being Special Criminal Application No. 1420 of 2025, was dismissed by the Coordinate Bench of this Court, which concluded that a prima facie offence is made out. After thoughtful consideration, this Court holds that a prima facie offence under the provisions of the Atrocities Act is established against the appellants. Consequently, the bar under Section 18 of the Atrocities Act would be attracted, and the offence under Section 105 of the Bhartiya Nayay Sanhita (BNS) is punishable by up to ten years for causing death unintentionally.
17. Further, considering the provisions of Sections 7 and 8 the Act, 2013, the Chief Officer of the Nagarpalika and the Sanitary Inspector, being in charge and responsible for supervising the cleaning work, cannot evade their duties. As per the notification issued by the Government, the Sanitary Inspector was authorized and designated to oversee the contractor's work, making it imperative for them to fulfill their responsibilities. Furthermore, by order dated 05.03.2025, Page 10 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined passed in Writ Petition (PIL) No.225 of 2016 and other allied matters, this Court made the following observations regarding the incident, particularly in paragraphs 2 to 4, as stated below:
"2. The stand of the in-charge Chief Officer of Patdi Nagarpalika is that as against the said categorical condition of the contract, the contractor had indulged into manual scavenging , which has resulted into loss of lives of two contract workers engaged by it. It is pointed out by the learned advocate for the petitioner that one of the contract workers engaged by the contractor who had died, was a minor. The further stand of the in-charge Chief Officer of the Nagarpalika in the affidavit is that for the wrongful action of the contractor, notices dated 22.01.2025 and 03.02.2025 had been issued calling upon the contractor to show cause as to why the contract be not terminated as per the Clause 31 of the contract and further the compensation paid to the family of the deceased by the Nagarpalika be not realised from him.
3. However, the fact remains that the Nagarpalika being the principal employer was required to daily supervise the working of the contractor. The fact that the minor person had been engaged by the contractor is a serious matter and was required to be looked into by the principal employer. The principal employer is required to take stock of the workers engaged by the contractor and monthly payments of wages made to them. There is nothing on record in the affidavit of the in-charge Chief Officer of the Nagarpalika to demonstrate as to how the supervision of the work of the contractor was being carried out on the part of the principal employer, namely the Nagarpalika. The entire record pertaining to the workers engaged by the contractor placed before the Nagarpalika is, therefore, required to be looked into by the in-charge Chief officer who shall make an enquiry on his own to find out as to how and in what manner the contract work was being conducted by the contractor and whether the payment towards the due wages was being made or not. Relevant certificates of proof of age of each of the contract workers is required to be examined by the Chief Officer.
4. Apart from the above, it is pertinent to note that the relevant Clauses of the contract/agreement aligned the role of the Sanitary Inspector of the Nagarpalika being an Page 11 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined officer in the supervising capacity of the day-to-day working of the contractor. The role of the Sanitary Inspector in the whole episode is required to be looked into. There is an absolute silence about the action initiated by the Nagarpalika, if any, on coming to know of the incident wherein two contract workers had died during the manual scavenging. The ignorance shown on the part of the Chief officer, Patdi Nagarpalka cannot be appreciated.
5. Furthermore, apart from the initiation of action for termination of contract, no other penal action has been initiated at the ends of the Nagarpalika being the principal employer, against the contractor."
18. Considering the aforesaid facts, Patdi Nagarpalika was directed to file an affidavit in the said PIL. For the Court's perusal, the affidavit has been placed on record. Upon perusing the affidavit filed by the In-charge Chief Officer of Patdi Nagarpalika, it appears that he attempted to emphasize that the Nagarpalika made wage payments directly to the contractor, who, in turn, paid the respective employees. He also stated that the Nagarpalika had initiated penal action against the contractor and that the contract had already been terminated.
19. As the Writ Petition (PIL) No. 225 of 2016, is pending, and a similar stand was taken in the quashing petition being Special Criminal Application No.1420 of 2025, which was dismissed on merits by the Coordinate Bench of this Court on January 30, 2025, a prima facie offence is made out. Furthermore, merely on the ground that custodial interrogation is not required, the present appeals cannot be Page 12 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined allowed, considering the bar under Section 18. While exercising its power to grant anticipatory bail under the Atrocities Act, the Court must first form an opinion on whether an offence is made out. In the quashing petition, as well as in the present proceedings, this Court has taken the view that a prima facie case under Section 3(1)(j) of the Atrocities Act is made out.
20. Considering the appellants' involvement and responsibility as principal employers, their oversight of the contractor's daily work, and their active participation in the WhatsApp group, it is evident that they were fully aware of their duties. Despite this, they failed to monitor the situation and comply with the statutory provisions and the objectives of the Act 2013. Notably, there is a statutory obligation to conduct a survey under Section 11 of the Act. The Act, 2013 was enacted to promote social justice and eliminate manual scavenging, upholding human dignity.
21. Despite the stringent provisions enacted and a slew of directions issued since 2013, workers continue to be engaged in hazardous activities and are found dead while cleaning septic tanks, sewerage, and manholes. The mere payment of compensation does not absolve the appellants of their statutory obligations. As held by the Hon'ble Apex Court in Balram Singh v. Union of India , reported in 2023 SCC Online 1386, merely paying compensation does not exempt the Page 13 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined responsible parties from their fundamental liabilities. The government has issued numerous circulars, and despite the stringent provisions under the Act, the number of sanitation worker deaths continues to rise. This is not a case where the appellants are innocent or falsely implicated; nor is it a matter of mere carelessness or negligence. The appellants were fully aware of their statutory duties and obligations, and they were duty-bound to ensure safety measures for sanitation workers. Their failure to do so cannot be overlooked.
22. Lastly, the learned Senior Advocate appearing for the appellants submitted that no custodial interrogation is required. The custodial interrogation is one of the good grounds to reject the anticipatory bail application, but merely because custodial interrogation is not required, itself is not a ground to allow the anticipatory bail application, in this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. reported in 2022 SCC OnLine (SC) 1529, wherein it is observed and held as follows:
"In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial intercpgation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation Page 14 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail"
Hence, this is a not a fit case to exercise the jurisdiction in favour of the appellants in view of the involvement of appellant in the offence and bar under Section 18 of the Atrocities Act.
23.In aforesaid backdrop, custodial interrogation is necessary. When involvement of an accused prima facie made out then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is against the SC/ST, this Court is conscious with the safeguards provided under Section 438 of the CrPC/482 of the BNS and concept of the personal liberty. Arrest is part of the process of investigation and intended to secure several purposes. In which the accused may provide information, during the the discovery of material facts and to relevant information.
24.Even after 75 years of independence, manual scavenging remains a stain on our collective conscience, persisting despite the landmark legislation the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013. approximaitely estimated 1.2 million Indians remain trapped in this inhumane practice, forced to clean dry latrines, carry excrement in leaking cane baskets, clear sewage, discard placentas after childbirth, work on railway tracks, exhume bodies, and endure dismal wages Page 15 of 16 Uploaded by ALI ISTAYAK(HC01093) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:51:51 IST 2025 NEUTRAL CITATION R/CR.A/468/2025 ORDER DATED: 03/04/2025 undefined and lifelong trauma, etc. due to lack of access to permanent sources of livelihood which compels them to engage in such hazardous activities, not out of free will but due to the absence of alternative employment opportunities. Hence, this cannot be considered as voluntary engagement, nor can consent be presumed in such compelling circumstances. Recognizing these hard realities and upholding the concept of social justice, stringent legal provisions have been enacted with the sole objective of eradicating manual scavenging.
"All human beings are made of the same earth, and they have the right to demand good behavior".
-- Dr. B.R. Ambedkar.
25.Having considered the charges leveled against the appellant, the offences under the provisions of the Atrocities Act, the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, societal interest and the bar under Section 18 of the 'Atrocities Act', the learned Special Judge (Atrocity) has not committed any error in rejecting both the pre- arrest applications. Hence, the appeals fail and stand dismissed.
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