Gujarat High Court
Gautambhai Kurjibhai Bhesania vs State Of Gujarat on 10 April, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/6578/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6578 of 2018
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GAUTAMBHAI KURJIBHAI BHESANIA
Versus
STATE OF GUJARAT
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Appearance:
MR DHAVAL C. DAVE, SENIOR ADVOCATE with
MR ASHISH H SHAH(2142) for the PETITIONER(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 10/04/2018
ORAL ORDER
[1] By way of present application under Section 438 of the Criminal Procedure Code, 1973 the applicant has prayed to release him on anticipatory bail in the event of his arrest in connection with FIR registered at C.R. No. I26 of 2017 with Uchhchal Police Station, Dist: Tapi on 25.04.2017 for the offences punishable under Sections 304, 337, 338 and 114 of the Indian Penal Code.
[2] Pursuant to the notice issued by this Court,the learned Public Prosecutor appeared and opposed the grant of relief as prayed for.
[3] The brief facts emerge from the record are as under:
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R/CR.MA/6578/2018 ORDER
[3.1] That one Shri Sureshbhai Babubhai Gamit, father of one Smitalben, studying in Primary School of the village of Tal:
Uchchhal lodged an aforesaid FIR that when his daughter, who is aged about 7 years, had gone to primary school, a wall of the primary school under repairing has collapsed, pursuant to which, his daughter and another student of the similar age namely Divya as well as employee of the school succumbed to the injuries.
[3.2] Subsequent to lodgment of the FIR, the investigation begun. It was the case of the applicant that a company namely M/s. Rudra Technocrats belonging to the applicant was successful bidder in getting the contract of construction/repairing work of the school building under a scheme run by Educational Department of State of Gujarat namely "Sarva Shiksha Abhiyan Mission". As per the terms and conditions of the contract entered into between the State of Gujarat and the company, the company itself has to carry out the entire construction/repairing work of primary school. It was further revealed in the investigation that, contrary to the terms and conditions of the contract, the applicant had engaged another contract for carrying out the aforesaid work which was not upto the mark, pursuant to which the wall collapsed and two students and one employee lost their lives. Summons were issued to the applicant by the investigating agency to appear before it. Instead of remaining himself present before the investigating agency, the applicant sent, employee of the company. Since the applicant was not found, chargesheet came to be filed against the other accused on 22.08.2017 wherein, the name of the applicant was shown as an absconding. Though, the Page 2 of 6 R/CR.MA/6578/2018 ORDER FIR was lodged on 25.04.2017 and the applicant was aware that he has been summoned, for the first time he filed an application under Section 438 of the Code of Criminal Procedure, 1973 before the learned Sessions Judge, Tapi only on 09.03.2018 i.e. almost after a period of 11 months from the date of lodgment of FIR. The said application came to be dismissed on 19.03.2018. Hence, this application.
[4] Mr. Dhaval C. Dave, learned Senior Advocate assisted by Mr. Ashish H. Shah, learned advocate appearing for the applicant would submit that though the applicant is charged for several offences including the offence punishable under Section 304 of IPC, no case is made out for the said offence. He would further submit that the wall collapsed which was under
construction by SubContractor, pursuant to which three persons lost their lives but that would not fall under partI or partII of Section 304 of IPC. He would submit that when the incident took place, the applicant was not present at the site and was not aware how the SubContractor carried out the work. He would submit that the case would maximum fall under Section 304 (A) of IPC. Since offence under Section 304 of IPC is a non bailable, the applicant may be released on bail. In support of his submission, he has relied on the decisions in the case of Keshub Mahindra Versus State of M. P reported in (1996) 6 Supreme Court Cases 129 and in the case of Kurban Hussein Mohamedalli Rangawalla Versus State of Maharashtra reported in AIR 1965 Supreme Court 1616 and he also relied upon the case of Siddhram Satlingappa Mhetre V/s. State of Maharashtra & Ors. reported in (2011) 1 Supreme Court Page 3 of 6 R/CR.MA/6578/2018 ORDER Cases 694. He, therefore, would submit that the applicant be released on bail.
[5] He would further submit that the Coordinate Bench has released two accused on regular bail who were actually carrying out the construction/repairing work by observing that prima facie, the nature of allegations do not warrant intervention of Section 304 of IPC. Therefore, also the applicant shall be treated as absconder. As far as nonavailability of the applicant by filing additional affidavit on 01.04.2018, he would further submit that when the incident took place, he was out of India. Subsequent thereto he had visited U.S.A. and therefore, he cannot treated as absconding. He would further submit that the applicant shall abide by all terms and conditions if, he released on bail.
[6] On the other hand, Mr. Mitesh Amin, learned Public Prosecutor vehemently opposed the grant of bail and he submit that the applicant had entered into an agreement with Government under the Scheme and was bound to carry out the construction/repairing work of primary school. Though specific condition was imposed in the construction/repairing contract that no work should be handed over to the SubContractor without prior permission to the Government Authorities, the same was handed over to the SubContractor, pursuant to which the incident took place. He would submit that it was the duty of the applicant to see to it that the construction/repairing work is carried out after using the correct material by handing over the construction work, the applicant has not even bothered to inspect the material which was being used at the site. He would further submit that debris collected from the site were sent to Page 4 of 6 R/CR.MA/6578/2018 ORDER technical institution which is known as Sardar Vallabhbhai National Institute and Technology Surat (SVNIT) which establish that building material was not as per the norms prescribed by the Government. He would submit that the applicant is not available after 24.05.2017. The affidavit filed by the applicant itself suggests that notice is issued to the applicant, however, when he was in India, he has not responded to the notice issued by Police Authorities. He would submit that, he had visited Malaysia for a period of six days and visited U.S.A. for a short period and though he was not traceable. Hence, the application be dismissed.
[7] I have heard learned advocates appearing on behalf of the respective parties. It appears that concerned department of State of Gujarat has given construction/repairing work to M/s. Rudra Technocrats for carrying out the construction/repairing work of primary school of different villages of Tapi District. However, the same work was given by the said company to subcontractor to those persons who had not used material with proper quality, pursuant to which, the wall collapsed and three persons including two minor students lost their lives. The judgments relied upon by the learned advocate appearing for the applicant at this stage would not be applicable since the applicant is not yet arrested and investigation qua him has yet not begun, it is not desirable to express any opinion with regard to report from the institution at this stage. So far as nonavailability of the applicant is concerned, this Court is not satisfied with the explanation furnished by the applicant.Page 5 of 6
R/CR.MA/6578/2018 ORDER [8] Considering the peculiar facts and circumstances of the
present case , I am of the opinion that discretion is not required to be exercised in favour of the applicant. Hence, this application is rejected. Rule is hereby discharged.
(A.J.DESAI, J) Lalji Page 6 of 6