Gujarat High Court
Nanubhai Ghelabhai Bharwad vs State Of Gujarat on 8 December, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8708 of 2020
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
1 of 2021
In R/SPECIAL CRIMINAL APPLICATION NO. 8708 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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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 or
any order made thereunder ?
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NANUBHAI GHELABHAI BHARWAD
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL NANAVATY, SENIOR COUNSEL with MR MEETKUMAR J
PANDIT(9479) for the Applicant(s) No. 1
MS AVANI V PATEL(8016) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/12/2021
ORAL JUDGMENT
1) The petitioner challenges the First Information Report being C.R. No.11191065200923 of 2020 lodged at Narol Page 1 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 Police Station, Ahmedabad City for the offences punishable under Sections 304, 308, 284, 285, 286, 436, 427, 337, 338 and 114 of the Indian Penal Code and under Sections 7, 8, 9, 15 and 16 of the Environment Protection Act, 1986. It is submitted that the petitioner is nowhere connected with the offences and on that ground, a prayer is made to quash and set aside the First Information Report under Section 482 of the Code of Criminal Procedure, 1973.
2) The facts of the First Information Report inter-alia suggest that on 04.11.2020 at 11.30 in the morning, a blast took place in the godown of a chemical company. The complainant's mother and 12 other died in the incident and about 9 persons were injured. The petitioner and two others are arraigned as accused in the First Information Report.
2.1. The complainant was informed by his sister about the blast and fire and that their mother had got stuck in the premises. The complainant rushed to the place where his mother was serving and saw that one godown of Sahil Chemicals, adjoining the godown where the mother of the complainant was serving was burning. The complainant has stated that his mother was serving at Kanika Fashions which is used for storage of readymade garments and because of the fire in the adjoining Page 2 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 godown, Kanika Fashions got destroyed and several persons including the complainant's mother working there died. It is alleged that it was because of the negligence of the owner of the premises, as no necessary proper access was provided in the premises and there was no facility of fire extinguisher, fatality took place
3) The petitioner states that he is merely the owner of the premises where Kanika Fashions was using the premises as a godown. The godown at Survey No.293/2 and the Godowns No.9, 10 and 11 admeasuring 3600 sq. ft. situated at Shahwadi, Ahmedabad, was given on a Leave and License Agreement to the owner of Kanika Fashions - Dhaneshkumar Rujukumar on 25.03.2015. The petitioner states that one of the convenants of the Leave and License Agreement was that necessary statutory requirements and compliance was the responsibility of the Licensee prior to utilizing the premises as a warehouse for fashion fabrics. The premises was on the basis of charging license fee from the concerned Licensee from the year 2015. According to the petitioner, since then the Licensee was utilizing the premises for warehouse purpose. The petitioner states that on the day when the incident took place, the adjoining premises was in the possession of Sahil Chemicals and owing to the blast, surrounding 2-3 godowns including that of the petitioner got destroyed and the persons who were serving in the Page 3 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 said Kanika Fashions, owned and managed by the Licensee - Dhaneshkumar Rujukumar lost their lives.
4) Learned Senior Counsel Mr. Premal Nanavaty appearing with learned Advocate Mr. Meetkumar J. Pandit for the petitioner stated that the owner of the Kanika Fashions has not been made an accused in this case. Referring to the Leave and License Agreement, it was submitted by Mr. Nanavaty that clause laid down in the Agreement clarifies that it was the absolute responsibility of the Licensee to keep the interior of the premises in good condition and it was the responsibility of the Licensee for all times during the course of the Leave and License Agreement not to carry on offensive trade or business in the premies and the premises was to be used as a godown and workshop. It is submitted that it was duty of the Licensee to take care of his employees and if so required to take all reasonable care and measures for the safety of his employees. Mr. Nanavaty stated that the Leave and License Agreement does not carry any of the conditions with regard to the functioning of Kanika Fashions nor about any employees working under the control of the owner of Kanika Fashions, laying the responsibilities on the petitioner.
5) Learned Senior Counsel Mr. Premal Nanavaty referring to the affidavit of the original complainant submitted that Page 4 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 he too is in agreement of the fact that the present petitioner had no role to play about the incident which took place at Sahil Chemicals, which is the adjoining property to the godown of Kanika Fashions where the mother of the complainant and others were serving and who lost their lives therein.
6) Learned Advocate Ms. Avani V. Patel appearing for the respondent No.2 - the complainant - Ashish Yunusbhai Christian (Chhotabhai) stated that the complainant has filed his Affidavit. As per the complainant, his mother had died because of the blast and at the relevant time, she was working in Kanika Fashions.
7) Learned Additional Public Prosecutor Mr. Pranav Trivedi referring to the First Information Report and Report of the Assistant Police Commissioner, 'K' Division, Ahmedabad City states that the present petitioner has been made an accused in the matter since the premises which was let to Kanika Fashions was without any prior permission of any construction on the land. It is submitted that the information of the Sub Divisional Magistrate was sought for and it had been found that the said land was not converted into non-agricultural use and the very construction of the godown was illegal. It is further submitted that as per the communication of the Incharge, Deputy Town Development Officer, South Zone Page 5 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 dated 18.09.2021, on primary inspection the construction of Sahil Chemicals godowns and other godowns adjoining nearby were in existence prior to the area coming inside the Corporation limits. The construction was only for the Municipal Tenement No.0349-01-0226-001-S, 0349-01- 0191-0001-H and 0349-01-0181-0001-0 and it is stated that as per the communication, the construction was 20 to 30 years old, but inspite of that, no prior BU permission was obtained from the competent authority nor there are any evidence on record to suggest that impact fee has been paid under the GUDA Act for regularization of the property and even the owner / party in possession have not produced such records later.
8) I have heard learned Advocates appearing for the parties and perused the records of the case. The counter foil of the charge-sheet shows the present petitioner as accused No.3 and the allegations made therein against the petitioner is to the effect that he had not obtained any N.A. permission and had constructed about 14 godowns for industrial and commercial use and those were in the name of Nanu Estate and it is alleged that for economic gain, he had let these units on rent without any prior permission from the Ahmedabad Municipal Corporation, or from the Fire Department of the Ahmedabad Municipal Corporation and had not ensured Fire Safety measures in the said premises.
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9) Admittedly, the incident had taken place in the adjoining godown of Sahil Chemicals. The premises of the present petitioner was given on Leave and License Agreement to Kanika Fashions, whose owner was Dhaneshkumar Rujukumar of his HUF. The Leave and License Agreement laid down the obligations of the Licensee. It was the sole responsibility of the business owner to ensure protection of his employees. The petitioner is only the owner of the premises in question and the allegations against him is of not having sought any Building Use permission nor is there anything on record to show that the land was put to non-agricultural use. Such default of the petitioner are to be dealt with in accordance with the rules and provisions laid down under the Municipal Corporation Act. The Revenue authorities are required to take action against him as per the report submitted by the Police taking into consideration the fact that these godowns were in existence even before they were included in the Corporation limits. The present petitioner cannot be made liable for the loss of lives because of the blast in the Chemical Factory adjoining to his premises. The petitioner was not conducting any business in the premises and had given the same on license basis.
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10) In this case to bring out the case under Section 304 of the Indian Penal Code, the prosecution has to prove that the death of the person in the incident was caused by the act of the accused and that the said act of the alleged person should be bound with the offence of causing death, or of causing such bodily injury as is likely to cause death or the Act alleged is done with the knowledge that is likely to cause death.
11) The applicant herein is alleged to have committed the offence punishable under Section 304 IPC. It reads thus:
"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
11.1. A plain reading of the above section makes it clear that it is in two parts. The first part of the section is generally referred to as Section 304 Part-I, whereas the Page 8 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 second part as Section 304 Part-II. The first part applies where the accused causes bodily injury to the victim with the INTENTION to cause death or with the INTENTION to cause such bodily injury as is likely to cause death. The second part, on the other hand, comes into play when death is caused by doing an act with the KNOWLEDGE that it is likely to cause death but without any INTENTION to cause death or to cause such bodily injury as is likely to cause death. Thus, the most important ingredient in a trial for this offence is the intention or knowledge with which the act which caused death, was done.
12) Here in this case as stated herein, this premise has been in existence even prior to the time when these areas were included in the Corporation limits. The place where the alleged incident has taken place is the adjoining place wherein the present petitioner has no control and it is of the ownership of the co-accused. The petitioner had no direct or indirect control on the premises where the blast had taken place. Further, the unit of which he was the owner was under the control of the Licensee who was having his work in the name and style of Kanika Fashions. The persons who died in the Unit of the ownership, the petitioner was not in direct control of the Licensee. The petitioner under no circumstances would know about the hazardous activities Page 9 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 undertaken by the adjoining owner. Had it been so, it was the responsibility of the authority concerned to have inspected and could have found out about the activities of the adjoining owner and the failure of the authorities to take timely control action on the owner of the Chemical Factory had led to such an incident, it is none of the functions of the petitioner to control the activity of the adjoining Unit Holders and he was not responsible for the safety and security of any of the persons using the adjoining unit nor his own Unit which he had given on License. No criminal culpability can be attributed to the petitioner.
13) In Vineet Kumar v. State of Uttar Pradesh, AIR 2017 SC 1884, the Apex Court observed as under :-
"23. A three-Judge Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6 :-
"6. .....All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of Page 10 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022 R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021 administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision.
Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
14) In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court observed as under:
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:Page 11 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022
R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."Page 12 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022
R/SCR.A/8708/2020 JUDGMENT DATED: 08/12/2021
15) Taking into consideration the facts as narrated hereinabove as well as considering the submissions advanced and on perusing the records of the case and also considering the ratio laid down in the above referred judgments, this petition is allowed. In the result, the First Information Report being C.R. No.11191065200923 of 2020 registered with Narol Police Station, Ahmedabad qua the petitioner herein, the charge-sheet as also the Sessions Case No.286/2021 qua the petitioner and all other consequential proceedings qua the petitioner herein are quashed and set aside. Rule is made absolute. Direct Service is permitted.
16) In view of the order passed in the main matter, no order is required to be passed in Criminal Miscellaneous Application No.1/2021 in Special Criminal Application No.8708/2020 and the same stands disposed of accordingly.
Sd/-
(GITA GOPI,J) CAROLINE Page 13 of 13 Downloaded on : Wed Jan 12 08:20:50 IST 2022