Bombay High Court
Rajaram Maruti Kale vs The State Of Maharashtra on 8 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3044
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.3101 OF 2019
Rajaram Maruti Kale .. Applicant
Vs.
The State of Maharashtra .. Respondent
...
Mr. Sanjeev Kadam with Mr. Prabhakar Jadhav for the Applicant.
Ms. M.M. Deshmukh, A.P.P. for the State.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 08TH DECEMBER, 2020.
P.C:-
1. The Applicant is seeking his release on bail in C.R. No.583 of
2019 registered with Kondhwa Police Station by which offences
punishable under Sections 304, 308 read with Section 34 of the IPC
and Sections 3(2)(L), 2(M), 13(1) of the Maharashtra Ownership Flats
Act have been invoked.
2. On completion of investigation, charge-sheet has been filed in
the Court of Judicial Magistrate, First Class, Pune against 10 accused
persons which included the Applicant. His Bail Application came to
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be rejected by the Sessions Court and, hence, he has approached this
Court.
3. CR No.583 of 2019 came to be registered on a complaint filed
by Police Sub-Inspector of Kondhwa Police Station on 29/06/2019
indicting 8 accused persons concerned with construction business of
Alcon Landmarks Firm and Kanchan Firm including its owners,
promoters, builders, developers, architect, engineers and structural
engineer. It is alleged that on 29/06/2019, the accused persons
Jagdishprasad Tilakchand Agarwal, Sachin Jagdishprasad Agarwal and
Rajesh Jagdishprasad Agarwal constructed an unsecured wall in Alcon
Stylus Society. In the adjoining plot, construction of a building known
as Royal Exotic was being carried out by a firm named Kanchan
through the named accused persons who had erected temporary tin
shelters for the stay of the labourers in excavated space adjoining to the
wall of Alcon Stylus Society. At about 1.40 a.m., on 29/06/2019, the
wall collapsed on the temporary tin shelter where the labourers were
housed causing death of 15 persons and 2 persons being seriously
injured. This resulted in invocation of Section 304 read with Section
34 of the IPC. Offences under Section 308 of the IPC and provisions
of MOFA came to be inserted at a later point.
4. The Applicant who was an employee of Alcon Landmarks and
worked as Site Engineer between March, 2013 to July, 2013 when the
wall was constructed came to be arrested on 26/07/2019. Since then,
he remained in jail.
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5. Mr. Sanjeev Kadam, learned counsel appearing for the
Applicant would submit that the other co-accused Rajesh Agarwal,
Pankaj Vohra, Suresh Shah, Rashmikant Gandhi and Nilesh Vorha are
on ad-interim bail, conferred by either the High Court of the Sessions
Court in Pune. He has invited my attention to an order dated
24/09/2020 passed in the case of Vipul Sunil Agarwal, a partner in the
firm which undertook construction of the wall, in Criminal
Application No.3424 of 2019 and submits that he was held entitled
for bail in the light of the observations made in the order. Mr. Kadam
has also placed on record the order dated 06/11/2020 passed in the
case of Vivek Sunil Agarwal & Ors. by the Additional Sessions Judge,
Pune. The submission of learned counsel Mr. Kadam is to the effect
that the Applicant had a minimal role to play in the entire episode and
he was an employee of Alcon Landmarks for a short span of time from
March, 2013 to July, 2013 and the collapse of wall took place on
29/06/2019 i.e. six years after he left the job with Alcon Landmarks.
Learned counsel states that there is no overt act attributed to the
present Applicant and, in fact, when the notice was received in
March, 2014 complaining about the quality of the structure, the
Applicant had already left his assignment. Mr. Kadam has also invited
my attention to the relevant fact of construction being undertaken in
the adjoining plot and the incessant rain in Pune on 28/06/2019 and
29/06/2019 which had contributed to the catastrophe. Mr. Kadam
would conclude by submitting that the investigation is now complete
and the charge-sheet is filed and the trial is not likely to commence
soon and the Applicant cannot be incarcerated long considering the
limited role attributed to him in the present offence.
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6. I have also heard Ms. Deshmukh, learned A.P.P. at length.
Perused the charge-sheet and the material contained therein.
7. I had an opportunity to deal with the Bail Application of one of
the co-accused, Vipul Agarwal in the same CR registered with
Kondhwa Police Station. The Applicant was indicated in the offence
as a partner in the partnership firm of M/s. Alcon Landmarks which
undertook the project of construction of Alcon Stylus Society. While
dealing with the said Application, I had noted the factual gamut and
referred to the material contained in the charge-sheet qua the
Applicant before me. The Applicant in the said Application was
admitted to bail primarily for the reason that he had retired from the
partnership vide a Registered Retirement Deed dated 15/10/2013 with
effect from 01/04/2013 and the Retirement Deed absolved him with
the liabilities. While releasing him on bail, I have recorded that the
observations made in the said order are qua the Applicant in the light
of the stand taken by him that he had retired from the partnership
much before the wall had collapsed.
8. I have perused the material contained in the charge-sheet qua
the present Applicant. On scanning of the material, it is evident that
there was some communication from the Pune Municipal Corporation
made to M/s. Alcon Landmarks in the year 2014 and on 05/03/2014,
a response was communicated along with the Certificate of the
Architect that the damage caused was repaired at the site and a stability
certificate was issued on 24/03/2014. The Architect who has certified
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and issued the stability certificate came to be released on anticipatory
bail by this Court on 18/08/2020 by recording that the repair of the
wall on the north-east corner was carried out. It is alleged that the
Applicant was an employee of Alcon Landmark and he had received
salary from them. His signatures are found on the bills submitted for
the work of retaining wall. The Applicant does not dispute the said
position but, even going by the charge-sheet, he was working in the
capacity of supervising the construction of wall only for a limited
period between March, 2013 to July, 2013 when he discharged his
duties as site supervisor. The wall collapsed later i.e. on
29/06/2019 and as can be seen from the report of the College of
Engineering, Pune as well as the Special Inquiry Report, several other
factors have contributed to the collapse of the wall which resulted into
the unfortunate incident. The material contained in the charge-sheet
reflects that M/s. Alcon Landmark was made aware in the meeting of
the Society on 16/02/2019 that the compound wall was shifting
outside and the wall quality is not satisfactory. Option was given to
replace the same with concrete wall. It is alleged that the accused who
were responsible for development of Alcon Stylus Society turned deaf
ears to the said report. Pertinent to note that as on 16/02/2019, the
present Applicant was not concerned with the partnership firm, which
undertook the development. The College of Engineering, Pune
which conducted the structural audit of the wall also reports that the
wall was found unsafe and the quality of the construction was poor.
The technical report covers the technical analysis of the wall. It was
noted that several technical parameters regarding strength of the wall
are ignored and there found to be much below the required safety
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parameters. For this aspect, the Applicant cannot be held responsible
as the role attributed to him is limited to supervising the construction
of Alcon Stylus Society for a limited period of five months in 2013.
The co-accused Vivek Sunil Agarwal, who is a partner of the
developer, who erected the said structure, is also released on bail by an
order of the Sessions Court which was placed before me. The
Additional Sessions Judge has relied on the report dated 24/09/2019
wherein the cause of wall collapse is reported to be on account of
difference in topography of land of Alcon Landmarks and Kunal
Housing. The report of I.I.T. dated 13/08/2019 was also relied upon
while releasing co-accused Vivek Agarwal, on bail. This report had
opined that the retaining wall had survived almost six years after
construction and the weakening of the stability of the wall was on
account of unscientific and unprotected deep excavation carried out at
Kanchan Royal Exotica. In the wake of the said report, the co-accused
Vivek Agarwal was released on bail.
9. Since the investigation is complete, charge-sheet has been filed
and in the light of the limited material contained against him, the
Applicant, in my considered opinion, is entitled to be released on bail
subject to the following stipulation. The observations made in the
order are prima facie in nature and are not to be construed as opinion
expressed on merits of the case also qua the Applicant or any other co-
accused. The trial court would proceed to try the offence being
uninfluenced by the aforesaid observations.
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ORDER
(a) The Applicant - Rajaram Maruti Kale shall be released on bail in C.R. No.583 of 2019 registered with Kondhwa Police Station, District Pune on executing P.R. bond to the extent of Rs.25,000/- and furnishing one or two sureties of the like amount.
(b) The Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case and shall not tamper with prosecution evidence.
(c) The Applicant shall co-operate and attend the trial regularly unless exempted by the Trial Court.
10. The Application is allowed in the aforestated terms.
11. All parties are directed to act on the downloaded copy of the order supplied by the Advocate under his seal and signature.
SMT. BHARATI DANGRE, J.
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