Manjulaben W/O Dhirajlal Kotecha & 2 vs State Of Gujarat on 16 April, 2015

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Gujarat High Court

Manjulaben W/O Dhirajlal Kotecha & 2 vs State Of Gujarat on 16 April, 2015

Bench: J.B.Pardiwala

         R/CR.MA/5253/2014                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                         FIR/ORDER) NO. 5253 of 2014

==============================================================
       MANJULABEN W/O DHIRAJLAL KOTECHA & 2....Applicant(s)
                            Versus
               STATE OF GUJARAT....Respondent(s)
==============================================================
Appearance:
MR YOGESH LAKHANI SR ADVOCATE with MR PRAVIN GONDALIYA ADVOCATE
for MR DIGANT B KAKKAD, ADVOCATE for the Applicant(s) No. 1 - 3
MR NJ SHAH, APP for the Respondent(s) No. 1
==============================================================

         CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                              Date : 16/04/2015


                                ORAL ORDER

1 Rule returnable forthwith. Mr. N.J. Shah, the learned additional public prosecutor waives service of notice of rule for and on behalf of the respondent No.1 the State of Gujarat.

2 By this application, the applicantsoriginal accused partners of a partnership firm seek to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of the proceedings of the Criminal Case No.654 of 2014 pending in the court of the learned Chief Judicial Magistrate, Junagadh arising from the First Information Report being C.R. No.I38 of 2013 registered with the 'B' Division Police Station, District Junagadh for the offence punishable under Page 1 of 4 R/CR.MA/5253/2014 ORDER Sections 304, 308, 337, 34, 120B of the Indian Penal Code.

3 The case of the prosecution in brief is as under:

The applicants herein are the partners of a partnership firm running in the name of the Mars Developers and are engaged in the business of construction. The firm constructed a multi storied building named as 'Monarch2'. On 10.02.2013 at around 5 a.m. 'A' wing of the Monarch2, all of a sudden collapsed. The building was under construction. Two labourers inside the building got injured and died.

4 The First Information Report was lodged on the next day by one Shri S.H. Joshi, the Police Sub Inspector, 'B' Division Police Station, District Junagadh. It appears that on conclusion of the investigation, the chargesheet came to be filed against 14 (fourteen) persons, which includes the partners of a partnership firm. The applicants herein are three ladies, who appear to be partners for the sake of business convenience.

5 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the criminal proceedings should be quashed so far as the three applicants as partners of a partnership firm are concerned.

6 It appears from the materials on record that the other partners of the partnership firm, who are in daytoday management and affairs of the business, have been chargesheeted.

Page 2 of 4

R/CR.MA/5253/2014 ORDER There is nothing on record to show that these three applicants were managing the affairs of the partnership firm. Mr. Shah, the learned additional public prosecutor appearing for the State, after obtaining instructions from the officer concerned, who is present in the court, very fairly submitted that the three applicants could not be fastened with any vicarious liability. They could not be held directly responsible for the collapse of the building on account of poor quality of the building materials used for the purpose of construction. Therefore, so far as the offence of culpable homicide not amounting to murder is concerned, the same is not applicable to the applicants herein. However, Mr. N.J. Shah, the learned additional public prosecutor pointed out that the main charge against the three applicants herein is of the offence under Sections 201 and 171 of the Indian Penal Code. So far as the Section 201 of the Indian Penal Code is concerned, it appears that it is the case of the prosecution that the three applicants herein tried to destroy evidence by creating evidence in their favour to show that they had retired from the partnership firm since a long time before the building collapsed. Having regard to the materials on record, there is nothing on record to prima facie suggest that the three applicants herein who are the female members directly indulged into an act of destroying the evidence by creating the documents to show that they had retired from a partnership firm. It is possible that the male members of the family, who are coaccused in the present case, might have tried to protect the other family members. In the overall view of the matter, I am convinced that no case is made out to put the three applicants to trial.

Page 3 of 4

             R/CR.MA/5253/2014                                     ORDER



7       In   the   result,   this   application   is   allowed   qua   the   three

applicants herein. The Criminal Case No.654 of 2014 pending in the court of the learned Chief Judicial Magistrate, Junagadh arising from the First Information Report being C.R. No.I38 of 2013 registered with the 'B' Division Police Station, District Junagadh is hereby ordered to be quashed qua the three applicants herein. Consequently, all further proceedings pursuant thereto shall stand terminated. Rule is made absolute qua the three applicants herein. Direct service is permitted.

8 I clarify that so far as the other accused persons are concerned, the trial should proceed further expeditiously in accordance with law.

(J.B.PARDIWALA, J.) chandresh Page 4 of 4

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