Gujarat High Court
Jagdishbhai Haribhai Bhambroliya vs State Of Gujarat on 14 August, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/18744/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 18744 of 2017
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JAGDISHBHAI HARIBHAI BHAMBROLIYA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance :
MR HRIDAY BUCH, LD.ADVOCATE for the Applicant(s) No. 1
MS SHRUTI PATHAK, LD.ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM HONOURABLE MS JUSTICE SONIA GOKANI
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Date : 14/08/2017
ORAL ORDER
1. By way of present application preferred under section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed for regular bail in connection with IC.R.No.26 of 2017 registered with Uchchhal Police Station, District Tapi, for the offences punishable under sections 304, 337, 338 and 114 of the Indian Penal Code, whereby the applicant has been arrested on July 04, 2017.
2. According to the case of the prosecution, one M/s.Raudra Technocrats got the contract for Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER upgradation of smart school and KGBV, repairing of BRC and staff quarters at Tapi District, vide communication dated December 09, 2016. It was Gujarat Council of Elementary Education, Gandhinagar, which instructed M/s.Raudra Technocrats to proceed with the execution of the said work as per the contract.
3. A Memorandum of Inderstanding (MOU) was executed with one M/s.Shri Hari delegating all the work. Another MOU was entered into between M/s.Shri Hari and the accused No.2Hareshbhai Chovatia, a Contractor by profession, to do the entire work originally given to M/s.Raudra Technocrats by the Government of Gujarat.
4. On the fateful day i.e. on April 25, 2017, the dilapidated structure of the school which was under reparation collapsed and one worker of of "MiddayMeal" who was working in the school and two girl students were trapped under the debris and ultimately, succumbed to the injuries. The first information report came to be lodged by the father of one of the deceased girl students.
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R/CR.MA/18744/2017 ORDER
5. It is the case of the applicant that he was in no way connected with the crime in question. He was appointed by M/s.Raudra Technocrats to oversee the supervision work. However, essentially it was the contractor i.e. accused No.2Hareshbhai Chovatia, who was at fault. It is further his say that the applicant is the friend of one of the partners of M/s.Raudra Technocrats and he has been wrongly and falsely implicated as a co accused.
6. It is further the say of the applicant that the accused No.2Hareshbhai Chovatia has been granted bail by this Court while dealing with Criminal Miscellaneous Application No.14293 of 2017 and, therefore, on the ground of parity, he may be granted regular bail.
7. Shri Hriday Buch, learned counsel appearing for the applicant, has vehemently urged that the applicant was neither required to carry out any construction work nor was he required to do any Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER reparation work. The applicant is neither the architecture nor contractor of the said work. He has urged that the applicant deserves to be released on bail on the ground of parity. By drawing attention of this Court to the photographs of the site, he has urged as to what was required to be done, was by the contractor, however, after the examinations were over, since the "MiddayMeal" was going on, the incident in question took place. There was no intention to kill anyone and even there would not be any knowledge on the part of the applicant that such an incident would occur. He has relied upon the order passed in the case of accused No.2 Hareshbhai Chovatia and also the decision of the Apex Court in the case of Naresh Giri v. State of M.P.1.
8. Ms.Shruti Pathak, learned Additional Public Prosecutor, has strongly resisted the present application. According to her, the report prepared by Sardar Vallabhai National Institute of Technology (for short 'SVNIT'), Surat, is 1 (2008) 1 SCC 791 Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER indicative of the fact that the depth of the groves were much wider. It is urged that such gross negligence and deliberate act on the part of the contractor has resulted into loss of three innocent lives. She has urged that M/s.Raudra Technocrats as per the MOU, without permission of the State, was not allowed to delegate the work to any other agency and yet they had given the contract to the third party. She has further urged that though the present applicant had neither any knowledge nor any technical knowledge, yet he had been appointed as responsible representative of M/s.Raudra Technocrats and, therefore, this Court may not entertain the present application.
9. This Court has at length heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and also considered the order dated June 27, 2017 rendered by this Court while dealing with Criminal Miscellaneous Application No.14293 of 2017 preferred by the original accused No.2Hareshbhai Chovatia. It needs to be Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER noted at the outset that the Court needs to consider the said order granting bail to the contractor, wherein it was observed that having regard to the nature of allegations levelled against the said contractor, it was doubtful to infer the knowledge and intention for constituting the offence under section 304 of the Indian Penal Code. On the ground of parity, the present application is pressed into service, so also on other grounds.
10. Taking firstly the aspect of parity, this Court notices that it was at the threshold of the investigation that such an order was passed by this Court. Today the Court has many other papers of investigation and more particularly, the report of the SVNIT, which raises questions as to the measurement of the groove. It is, therefore, at this stage, being decided respectfully not agreeing with the Coordinate Bench on some of the observations made with regard to non application of the offence punishable under section 304 of the Indian Penal Code as at the Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER same time, the Court cannot be oblivious of the fact that the contract was given to M/s.Raudra Technocrats, which was not to delegate and yet they have chosen to delegate the contract and the present applicant is not a partner of M/s.Raudra Technocrats. This Court is given to understand that none of the partners of M/s.Raudra Technocrats have been arraigned as accused. However, the person who has been granted regular bail is a contractor, who was responsible for carrying out daytoday activity onsite. Even while prima facie holding that section 304 of IPC may be attracted, this Court is of the opinion that considering the role attributed to the present applicant and the manner of happening of incident at the site, on strictest condition, the applicant deserves to be granted bail.
11. For the foregoing reasons, the present application is allowed and the applicant is ordered to be released on regular bail in connection with ICR.No.26 of 2016 registered with the Uchchhal Police Station, District Tapi, on his executing a solvent surety of Rs.25,000/ Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER (Rupees Twenty Five Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall :
[a] not take undue advantage of liberty or misuse liberty;
[b] not tamper with the evidence or hamper the prosecution witnesses and shall not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the trial court within a week from the date of his release; [d] not leave the State of Gujarat without prior permission of this Court;
[e] mark presence before the concerned Police Station between 11:00 a.m. and 02:00 p.m. on every first and third Mondays of the English calendar month till the trial begins; [f] furnish the present address of his residence to (i) the Investigating Officer and also (ii) Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER the trial Court, at the time of execution of the bond and shall not change the residence without prior permission of this Court; [g] file an undertaking before the trial Court within a week from the date of his release to the effect that he shall not visit or attend the site in question.
12. The authorities will release the applicant only if he is not required in connection with any other offence for the time being.
13. If breach of any of the above conditions is committed, the trial Court concerned will be at liberty to issue warrant or take appropriate action in the matter and even the Investigating Officer will be at liberty to approach this Court in case of breach of any such condition.
14. Bail bond be executed before the trial Court having jurisdiction to try the case.
15. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Aug 15 02:10:00 IST 2017 R/CR.MA/18744/2017 ORDER this Court while enlarging the applicant on bail. The Investigating Officer is also directed to look into the role of the partners of M/s.Raudra Technocrats.
Rule is made absolute to the extent aforesaid. Direct service is permitted, TODAY.
(MS SONIA GOKANI, J.) Aakar Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Aug 15 02:10:00 IST 2017