Gujarat High Court
Pankajbhai Madhavlal Patel vs State Of Gujarat on 17 April, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/21132/2014 ORDER DATED: 17/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21132 of 2014
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PANKAJBHAI MADHAVLAL PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
BHAGIRATH N PATEL(9016) for the Applicant(s) No. 1
MR TEJAS SATTA, ADVOCATE FOR MR AR PATEL(5838) for the
Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 17/04/2023
ORAL ORDER
1. By this application under Section 482 of Cr.P.C., the applicant seeks to invoke inherent powers of this Court, praying quashment of First Information Report being C.R.No.I-97 of 2014 registered with Puna Police Station, Dist: Surat for the offences punishable under Sections 304, 285, 337, 338 read with Section 114 of the Indian Penal Code.
2. Though served, none appears for respondent no.2.
3. The case of the prosecution may be summarized as under:
3.1 The co-accused Madhavji Dhanjibhai Patel was Page 1 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023 R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 engaged in the business of construction and had constructed building known as "Landmark Empires". The necessary approval as contemplated under the Municipality Laws were sanctioned by Surat Municipal Corporation. The building is in two parts i.e. A and B Wing. The developer obtained NOC for fire safety on 27.06.2012 and it was issued for 'B' Wing. After completion of the formality, the building was handed over to the respective members of the "Landmark Empire Cooperative Service Society Limited". The society thereafter, nominated its President, Secretary and other office bearers for the administration of the building.
3.2 On 23.04.2014, the fire took place in the building known as "Landmark Empire Market" situated at Puna Kumbhariya Road, in its 6th floor, Shop Nos.615, 608 and
609. Due to alleged incident, two persons lost their lives and nineteen had suffered injuries. Initially, Janva Jog Entry registered with Puna Police Station and after primary investigation, it was found that, fire extinguishers in the Wing 'A' were not installed and as such, the facilities for fire prevention and protection having not been properly maintained by the developers and society. It is alleged that, despite the public notice by the SMC, the office bearers of the society and developers failed to get NOC from the fire department of the SMC. In such circumstances, after in-depth inquiry, the P.I., Puna Police Station being a complainant, lodged an FIR against three persons i.e. President, Secretary of the society and Page 2 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023 R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 developer Madhavji Patel, for the alleged offence under Sections 304, 285, 337 and 338 of the Indian Penal Code alleging that, the accused are responsible for the death of two persons and the injuries sustained by nineteen persons as non-establishment of fire safety system, committed the act of culpable homicide not amounting to murder.
3.3 The applicant Pankaj Patel being a Chief Fire Officer, was impleaded as accused and arrested on 11.09.2014.
So far role of the present applicant is concerned, it is alleged that, despite non-issuance of NOC to the 'A' Wing of the building, he did not visit the building to verify whether fire safety system was installed or not and failed to issue notice to the concerned for non-compliance of mandatory regulations of fire safety. It is further alleged against the applicant that, he had made additional note in the register maintained by the Fire Department so as to escape from the liability. It is alleged against the applicant that, he was negligent in performing his duty.
3.4 In the aforesaid facts, after completion of investigation, chargesheet came to be filed for the offences as referred above which is culminated into criminal case.
4. By way of this application, the applicant herein is seeking quashment of the aforesaid criminal proceedings on the grounds mentioned in the petition.
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5. Mr. Tejas Satta, learned counsel for Mr. A.R. Patel, learned counsel for the applicant raised the following contentions:
(i) A bare reading of the contents of FIR clearly shows that, even if the averments made therein are taken on its face value and accepted as it is, the same do not constitute any offence against the applicant herein, nor, disclose the commission of any offence or make out a case against the applicant;
(ii) The FIR was lodged against the owner and/or developer of the building Madhavji Patel and against the President and Secretary of the society.
The owner of the building Madhavji Patel had filed quashing petition (CRMA No.9490 of 2014) before this Court and vide order dated 16.10.2015, the Coordinate Bench of this Court quashed the criminal proceedings against him. While quashing the proceedings, it was observed that, "there is no case for prosecuting the applicant for the offence punishable under Sections 304 of Indian Penal Code i.e. culpable homicide not amounting to murder, the other offence pales into insignificance." It is in this context, it is submitted that, the applicant has nothing to do with the alleged act of fire incident. He was not named in the FIR. After the incident, he rushed to the site and rescued so many people.
Page 4 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 Despite the public notice issued by the Authority, the developer did not apply for NOC Wing 'A'. The developer was knowing that, NOC is necessary as so far Wing 'B' is concerned, it was obtained on 27.06.2012. The alleged incident is an accident. The applicant herein vide notice dated 07.03.2014, informed the office bearers of the society to get the fire system to be inspected by the authority for the purpose of issuance of NOC. Thus, when the criminal proceedings against the principal accused has been quashed and considering the allegations leveled in the FIR against the applicant, the case is made out for exercising inherent powers of this Court;
(iii) That, there is no allegation made against the applicant that, he committed the act of culpable homicide not amounting to murder and therefore, the ingredients of Section 304, 337, 338 and 285 are not attracted.
6. In view of the aforesaid contentions and relying on the decision of this Court in case of State of Gujarat vs. Jignesh Mohanbhai Patel and others (Criminal Revision Application No.395 of 2006 and allied matters) decided on 20.01.2010, learned counsel Mr. Satta contended that, from the entire papers of chargesheet, there is nothing to implicate that, the applicant is liable or responsible for any offences as referred in the papers and therefore, in Page 5 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023 R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 order to prevent misuse of the process of law and Court, this is a fit case to exercise inherent powers to quash criminal proceedings.
7. On the other hand, learned Additional Public Prosecutor Mr. L.B. Dabhi vehemently opposed the application and submitted that, looking to the allegations leveled against the applicant herein at this stage, it cannot be said that prima-facie no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of facts, which cannot be adjudicated by this Court in proceedings under Section 482 of Cr.P.C.
8. Having regard to the facts and circumstances of present case and on perusal of the contents of FIR and chargesheet case papers, the issue falls for consideration of this Court whether the applicant has made out a case for quashing of FIR and consequential proceedings therefrom?
9. Before adverting to the contentions raised by respective parties, it is necessary to refer the settled position of law on the point of quashing of criminal proceedings. The law is well settled that, the allegations as leveled in the FIR and chargesheet are taken at its face value, if do not make out any case, the same could be quashed by invoking inherent jurisdiction under Section 482 of Cr.P.C. It is no doubt true that the power of quashing of criminal proceeding should be exercised very sparingly and with Page 6 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023 R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 circumspection and that too, in rarest of rare cases and it should be exercised to prevent abuse of process of any Court or otherwise to secure ends of justice and while exercising the power, the Court must be careful to see that, its decision is based on sound principles. However, there is no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction and it depends upon the peculiar facts and circumstances of each case.
10. In light of the aforesaid position of law, if facts and circumstances of present case are considered, it appears that, the building where the incident of fire took place was constructed by Madhavjibhai Dhanjibhai Patel and in his name, all the necessary permissions were being sanctioned or granted by the competent authority. The building in question was entrusted to the society. In the year 2012, the permission for fire safety in the form of NOC was issued by the authority and building was inspected. The applicant herein was holding the post of Chief Fire Officer in Surat Municipal Corporation. The fire took place on account of short-circuit in the year 2014. It is alleged that, the applicant was failed to carry out necessary inspection and did not issue a notice on the office bearers of the society as they failed to get NOC in a stipulated time. The record indicates that on 07.03.2014, the applicant herein served a notice on the co-accused to comply with the mandatory provisions pertaining to fire system. There is no iota of allegation made against the Page 7 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023 R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 applicant herein that, for the daily maintenance of the fire system, he was careless and negligent. The duty was casted upon the developers and office bearers of the society to get NOC from the competent authority and to see that, the facilities of fire prevention and protection be installed and work smoothly to prevent such kind of incident. In such circumstances, considering the allegations leveled against the applicant herein, this Court is of prima-facie opinion that when the criminal proceeding against the developer of the building already quashed by Coordinate Bench of this Court, the applicant cannot be put on trial for the offence of culpable homicide not amounting to murder, punishable under Section 304 of the Code. So far allegation of alteration in the register of notice maintained by the authority is concerned, he may be liable for departmental action, but criminal liability cannot be fixed for the act of alteration in the notice register.
11. Thus, I am of the opinion that the applicant has made out a case for this Court to exercise jurisdiction under Section 482 of Cr.P.C. and accordingly, I am of the prima-facie view that on bare reading of relevant provisions of the Indian Penal Code as referred in the charge-sheet and applying them to the admitted facts in the present case, the ingredients of Section 304, 337, 338, 285 read with Section 114 of the Indian Penal Code are not made out and therefore, continuation of proceedings against the applicant herein would amount Page 8 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023 R/CR.MA/21132/2014 ORDER DATED: 17/04/2023 to abuse of process of Court.
12. Resultantly, this application is allowed. The impugned FIR being C.R.No.I-97 of 2014 registered with Puna Police Station, Dist: Surat for the offences punishable under Sections 304, 285, 337, 338 read with Section 114 of the Indian Penal Code as well as other consequential proceedings are hereby quashed and set aside qua the applicant herein. Accordingly, Rule is made absolute. Direct service is permitted.
(ILESH J. VORA,J) TAUSIF SAIYED Page 9 of 9 Downloaded on : Wed Apr 19 20:41:52 IST 2023