Gujarat High Court
State Of Gujarat vs Vipul Maganlal Kotecha & on 3 April, 2013
Author: A.J.Desai
Bench: A.J.Desai
STATE OF GUJARAT....Applicant(s)V/SVIPUL MAGANLAL KOTECHA R/CR.MA/3673/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 3673 of 2013 With CRIMINAL MISC.APPLICATION NO. 3674 of 2013 TO CRIMINAL MISC.APPLICATION NO. 3675 of 2013 ================================================================ STATE OF GUJARAT Versus VIPUL MAGANLAL KOTECHA & ORS ================================================================ Appearance in Criminal Misc. Application No. 3673 of 2012:
MR PK JANI PP WITH MR. KP RAVAL APP for the Applicant MR PRAKASH THAKKAR, SR. COUNSEL WITH MR. VIRAT G POPAT, ADVOCATE for the Respondents Appearance in Criminal Misc. Application No. 3674 of 2012:
MR PK JANI PP WITH MR. KP RAVAL APP for the Applicant MR YOGESH LAKHANI, SR. COUNSEL WITH MR. PRAVIN GONDALIYA, ADVOCATE for the Respondents Appearance in Criminal Misc. Application No. 3675 of 2012:
MR PK JANI PP WITH MR. KP RAVAL APP for the Applicant MR YOGESH LAKHANI, SR. COUNSEL WITH MR. DIGANT KAKKAD, ADVOCATE for the Respondents ================================================================ CORAM:
HONOURABLE MR.JUSTICE A.J.DESAI Date : 03/04/2013 ORAL COMMON ORDER 1 By way of the present petitions under Section 439 (2) read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ), the applicant State of Gujarat has challenged the Order dated 20.2.2013 passed by the learned 5th Additional Sessions Judge, Junagadh, in Misc. Criminal Application No. 65 of 2013, Misc. Criminal Application No.60 of 2013 and Criminal Misc. Application No. 57 of 2013 and has released the respondent accused of each application on anticipatory bail on certain conditions.
2 Though, three Revision Applications have been filed by the State of Gujarat against different accused persons and the accused had preferred different applications before the learned Sessions Judge, all these three applications are being heard and decided together by this common order since they are arising out of one offence which is registered at CR No. I-38 of 2003 before Junagadh City `B Division Police Station.
It is pertinent to note at this stage that as per the condition imposed by the learned Sessions Judge by impugned order dated 20.02.2013 against the respondents accused, some of them remained present before the concerned Police authority on 27.3.2013 and some of them on 5.3.2003 and they were released on bail as per the impugned order. In short, the impugned order of anticipatory bail has already been executed.
3 Though, the respondents accused are on bail, the State of Gujarat has challenged the merits of the impugned order on various grounds set out in the applications and, therefore, all the three matters are heard at length.
4 Brief facts emerges from the record of the case are as under:
That one S.H. Joshi, Police Sub-Inspector, Junagadh City `B Division Police Station, lodged an FIR on 11.2.2013 against eight accused persons and alleged that the accused persons are the partners of one `Maars Developers which is a partnership firm, engaged in the business of construction activities in the city of Junagadh. It was alleged that the Power-of-attorney holder of all the partners of the said Mass Developers, namely, Vipulbhai Vallabhdas Rajpara, who is respondent No.2 in Criminal Misc. Application No. 3673 of 2013, requested to the Junagadh Municipal Corporation to permit him to construct a Nine Storied Building at Revenue Survey No. 253(1), Paikki-1 and Paikki-3, by submitting an application on 3.5.2010. A second application was also submitted on 25.8.2010 seeking permission to construct basement, ground floor plus a nine storied building. The Municipal Corporation after verification of the applications, vide its Order dated 31.8.2010, permitted the developers to construct the said building. It was further alleged the builders-Maars Developers had neither submitted any application for renewal the permission granted earlier for starting the construction work nor applied for completion certificate and/or building use permission certificate. The developers did not request the Corporation to extend the permission which was granted on 31.8.2010 till 30.8.2011. It was the case of the complainant that, though, proper permission was not obtained by the builders, on two blocks in one of the towers, some workers were carrying on the work of plaster of parris as well as making furniture. The said blocks were handed over to the individual purchasers without any permission obtained from the competent authority for using the same. It was alleged that when the work was going on, the workers used to stay in the same building at night. It was further alleged that pursuant to the sub-standard material used in the construction of the tower, the entire building fell down and pursuant to which two persons lost their lives and six persons were sustained injuries.
5 The Police Authority visited the place of incident along with the Scientific Officer of the Forensic Science Laboratory, Officer of the Gujarat Engineering Research Institute, Rajkot (`GERI for short) and the Executive Engineer of the Road and Building Department, Junagadh and collected sample of debris of the collapsed building. The incident took place on 10.2.2013 in the wee hours of the day wherein two persons had lost their lives and certain persons sustained injuries. Pursuant to which, the FIR was lodged against the proprietors of Mass Developers for the offences under Sections 304, 308, 337, 34 and 120-B of the Indian Penal Code.
6 Having come to know about filing of the impugned FIR, the respondents accused preferred applications under Section 438 of the Code and urged to the learned Sessions Judge to exercise his powers under Section-438 of the Code and release them on anticipatory bail. Pursuant to the issuance of notice by the learned Sessions Judge, the Investigating Agency through Police Inspector of Crime Branch, Junagadh, filed its affidavit with regard to the applications filed by the accused persons and grant of such application for anticipatory bail was opposed by the prosecution through learned Public Prosecutor. After considering the material available at the time of deciding the application as well as considering several statements in the nature of documentary evidence, the learned 5th (Ad hoc) Sessions Judge, Junagadh, exercised its powers and released them on anticipatory bail on certain conditions including permitting the Investigating Agency to file application for police remand.
6.1 Since the permission was granted by the learned Sessions Judge, the Investigating Agency filed several application to the learned Magistrate and requested to grant police custody of the accused persons for custodial interrogation. The learned Magistrate accepted the applications submitted by the Investigating Agency, qua, male partners of the said Mass Developers whereas rejected the remand applications, qua, female partners. The learned Magistrate granted police remand from 12.30 p.m. on 5th March, 2013 to 1400 hours on 7th March, 2013. No further remand was prayed by the agency nor the remand order was challenged by the accused persons before the higher forum.
7 Mr. P.K. Jani, learned Public Prosecutor, appearing for the applicant- State of Gujarat in each application has submitted that the learned Sessions Judge has erred in exercising his powers under Section 438 of the Code at the very premature stage. He submitted that the FIR was lodged on 11.2.2013, the applications were filed by the accused persons on 15.02.2013 and on the next date i.e. 20.2.2013 the order of releasing the accused persons on anticipatory bail is granted. After taking through the allegations levelled in the FIR as well as the affidavit-in-reply filed before the Sessions Court, he submitted that, though, it was was brought to the notice of the learned Sessions Judge that the specific report from the appropriate authority with regard to the material used in the construction of building was not received, the learned Sessions Judge ought to not to have decided the applications and ought to have waited at least for the report, so that, on perusing the report of the appropriate authority, it can be decided whether the accused persons have flouted the conditions imposed by the Corporation while permitting them for construction of nine storied building are not. He further submitted that, though, it was brought to the notice that number of conditions imposed by the Corporation were breached by the builders, the learned Sessions Judge ought not to have granted anticipatory bail have two persons were lost their lives and certain persons have suffered injury. It was specifically brought to the notice of the Sessions Court about the statement of the Structural Engineer, namely, Shri Ashwin Dodiya, who has categorically stated that though he was looking after the structural design of the builders, however, the entire construction was not supervised by him. He has further stated in his statement that there was no provision in the structural design about making sewerage (gutter), though, the same was carried out by the developers, in which some water passes through it.
7.1 The next contention raised my Mr. P.K. Jani, learned APP for the applicant State is with regard to the conduct of the partners of Maars Developers who have tired to tamper with the evidence immediately after the incident on 10.2.2013. He submitted that, though there were lady members in the partnership firm, however, they have tried to delete their names from the partnership deed by creating bogus deed on 5.2.2013 by which they have retired as partners from the partnership firm Maars Developers. In fact, it has been found that the said deed was created on 10.2.2013, though, that has been shown to be created on 5.2.2013. However, the learned Sessions Judge has not considered this aspect while exercising its powers under Section 438 of the Code.
7.2 Since the investigation was going on even after the release of the accused persons on anticipatory bail, he has relied upon certain documents which are collected by the Investigating Agency subsequent thereto. He has shown the report GERI, Rajkot, dated 22.2.2013 with regard to the sample of concrete of collapsed building. He submitted that the said report amply makes it clear that the material used in the construction of building failed with the Indian Standard Method of Test For Strength of Concrete of the Bureau Of Indian Standards i.e. IS: 516-1959. Similar is the report dated 26.2.2013 received from GERI, Vadodara. It is mentioned in the said report that some of the samples failed with the standards as provided in the said IS: 516-1959. Another report dated 28.2.2013 issued by the Joint Director of Aaryan Engineers, Mumbai, also indicates that some of the samples failed with the requirements of IS: 1199-1959. It is submitted that since the Developers had not used proper material in constructing the Nine storied building, two persons lost their lives and therefore,the accused persons have committed the offence under Section-304 of the Indian Penal Code.
Mr. Jani has further submitted that at any point of time, the Developers have not got it verified the requirements as per the conditions imposed by the Municipal Corporation by filing appropriate application or report to the Corporation and carried out the construction of nine storied building with sub-standard material. It is submitted that all the partners are equally liable for carrying out such work of nine storied building which, ultimately, resulted into an unfortunate incident of collapse of the entire building in which two persons had lost their lives. He therefore submitted that considering the seriousness of the offence, the bail granted by the learned Sessions Court in favour of the respondents accused deserves to be cancelled.
8 On the other hand, Mr. Y.S.Lakhani, learned Senior Counsel and Mr. P.M. Thakker, learned Senior Counsel, appearing for the respondents accused have opposed the applications. It was argued that the police officers had filed the impugned FIR at very early stage and without having sufficient material alleging that substandard material was used by the Developers in constructing the nine storied building. The arguments advanced by the learned counsel for the respondents accused that the Investigating Agency has blindly applied the provisions of Section 304 of the Indian Penal Code, though, prima facie, no case is made out against the accused persons that they have committed any of the alleged offences. It was argued that Section 304 of the IPC is a punishing section for culpable homicide not amounting to murder. It was argued that as per Section-299 of the IPC defines that if a person acts in such a manner with an intention of causing death or causing such bodily injury as is likely to cause death, or with the the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. It is further submitted that several exceptions being provided under Section 300 of the IPC which deals with the definition of culpable homicide not amounting to murder. It was argued that when the Investigating Agency has applied Section 304 of the IPC in the offence, prosecution is bound to even prima facie establish the basic ingredients that the case falls in either of the exceptions provided under Section 304 of the IPC. It was argued that when the Investigating Agency, who has failed in establishing the case under the provisions of Section 304 of the IPC, has also failed in establishing the case under Section 308. Sections 337, 34, 120-B of the IPC against the accused persons. It is submitted that Section-337 of the IPC, even if it is prima facie established, then, the sentence prescribed is for maximum period of six months or with fine which may extend to five hundred rupees, or with both. It was argued that as per the case of the investigating Agency itself that the power-of-attorney was given to one of the accused and, therefore, the provisions of Sections 34 and 120-B of the IPC would not be applicable in the present case.
It was further argued that when the building was collapsed, by written communication, all the accused partners were debarred from entering the area, which has been recently lifted. The respondents accused had never been asked to remain present at the place of incident when the samples were collected by the agency. The samples which were taken by the agency in the presence of difference officers, none of the accused nor their representative was present at that time. Even, the accused persons do not know the correct reasons for the collapse of the building.
By relying upon the same Indian Standard (Methods of Tests For Strength Of Concrete), IS: 516-1959, of the Bureau of Indian Standards, which is relied by learned Public Prosecutor, it was brought to the notice that if the samples are collected for analysis of concrete, the test methods provided in Indian Standard (Methods of Test For Strength Of Concrete) IS: 1199-1950 is required to be followed. It was argued that IS: 1199 1950 and particularly Item No. 4.1 provides precautions required to be taken while preparing test specimens from hardened concrete. It has been specifically mentioned in the said Paragraph 4.1 that specimens that show abnormal defects or that have been damaged in removal shall not be used.
8.3 By relying on a decision of the Hon ble Apex Court in the case of Gurcharan Singh vs. State of Delhi, as reported at AIR 1978 SC 179, it was argued that the Hon ble Apex Court has held that unless exceptional circumstances are brought to the notice of the court which may defeat proper investigation and a fair trial, the court will not decline to grant bail to a person who is not an accused of an offence punishable with death or imprisonment for life. In the present case, the accused are charged with the offences punishable under Sections 304, 308, 337, 34 and 120-B of the IPC. Section-304 of the IPC is explained in two parts by catena of decisions of the Hon ble Apex Court. It was argued that it is not the case of the prosecution, either in the FIR or in the affidavit that the partners of Maars Developers had the intention of causing death of a person. It was further argued that even if at the end of trial, if the prosecution establishes that the accused persons had knowledge that by using sub-standard material in the construction of building, the maximum punishment provided in the second para is upto ten years or with fine or with both. Section 308 of the IPC provides the maximum punishment of seven years or with fine or with both. It was further argued that the building was not completed. The major work of electrification, plumbing, tiling work, construction of lift, fixing of doors and windows, etc. were yet to be carried out by the developers. Since the construction of the building was not completed, they had not applied for completion certificate nor for B.U. Permission to the Municipal Corporation. Though, possession of none of the blocks was handed over to any of the allottee, nobody was residing in the entire building. If, some allottees were carrying on some work, the same was without any permission from the Developers.
8.4 It was further argued that by catena of decisions, the Hon ble Apex Court it has been held that different yardsticks are required to be applied at the time of cancelling of bail which has already been granted by the lower courts. By referring to the impugned order, it was argued that, the learned Sessions Judge has given sufficient reasons for exercising powers under Section 438 of the Code. It was further argued that so far as deleting the names of the partners from the partnership deed is concerned, the same is required to be proved after cross-examination of the experts, who have opined that the deed was prepared on 10.2.2013 and not on 5.2.2013. Finally it is submitted that no interference in the order passed by the Sessions Court is warranted and the applications deserves to dismissed.
9 I have heard the learned counsel appearing for the respective parties and have also gone through the reasons assigned by the Sessions Court and the affidavit filed by the Investigating Officer before the Trial Court as well as affidavit-in-reply filed by the respondents accused in the present applications. I have also gone through the entire papers of investigation.
10 While considering the present applications, following factual as as well as legal aspects are kept in mind:
the Maars Developers had applied for construction of 9 storied building by submitting two applications i.e. on 3.5.2010 and 25.8.2010, respectively, along with necessary documents to the Junagadh Municipal Corporation;
(ii) the Municipal Corporation after verifying the documents has granted permission to construct after perusing the structural plans and other necessary documents;
the accused persons have not applied for completion certificate nor building use permission certificate;
the prosecution is not able to collect any documentary evidence by which possession of any of the blocks was handed over to any of the allottees of the said block in which the workers were carrying on different type of works;
the learned Sessions Judge has rightly considered and dealt with in detail the ratio laid down by the Hon ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors., as reported in (2011) 1 SCC 694 and particularly the observations made by the Apex Court below the note for relevant consideration and exercise of powers under Section-438 of the Code and more particularly in paras 111, 112, 113 and 114 of the judgment;
(vi) the learned Sessions Judge has rightly considered the factors and parameters which are enumerated in paragraph 112 of the aforesaid judgment of the Apex Court. The learned Sessions Judge has rightly not gone into the details while discussing the applicability of the provisions of Sections 304, 308, 337, 34 and 120B of the Indian Penal Code at the stage of considering the bail application;
(vii) when the developers had already constructed 18 such buildings in the entire city of Junagadh, the learned Sessions Judge has rightly come to the conclusion that there are no likelihood of the accused flee away from the trial and would be available at the time of trial;
(viii) the Investigating Agency was successful in getting the police remand of the male accused for two days and the accused have already been interrogated by the police when they were in police custody. It is not the case of the applicant State of Gujarat that after filing of the FIR or after they are released on bail, have committed any breach of the conditions imposed by the learned Sessions Court;
(ix) it is not the case of the prosecution that the respondents accused they have tried to tamper with the evidence or the witnesses after their release by the learned Sessions Court;
(x) it is an admitted position that when the samples of concrete from the debris of the said buildings were collected, either the accused persons or any representative of the accused was present at the place from where the samples were collected.
11 As advised by the Hon ble Apex Court by catena of decisions I have restrained myself from going into detail about applicability of Sections 304, 308 etc in the present case as well as with regard to the statements of those witnesses, in whose block, the work of plaster of paris or furniture work were going on, in which the deceased persons were doing the labour work, which would affect either party. I am also not dealing with the standards prescribed for procedure of sampling in different Indian Standards at the stag of hearing bail applications which would affect the case of either party in future.
12. Considering the parameters laid down by the Honble Apex Court in the case of Bhagirathsinh Judeja v. State of Gujarat [AIR 1984 SC 372] and Dolat Ram v. State of Haryana [1995 SCC (Cri.) 237] for exercise of powers under Section 439(2) of the Code, it cannot be said that other than legal consideration weighed with the learned Additional Sessions Judge for exercising powers and keeping in mind law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. reported in [(2011)1 SCC 694], the respondent - accused is granted anticipatory bail which do not make out a case for this Court to exercise powers under Section 439(2) of the Code of Criminal Procedure.
13. Considering the ratio laid down by the Hon'ble Apex Court in various decisions, powers of the learned Appellate Court are different than granting the same. In case of Dolat Ram & Ors V/s. State of Maryanna, reported at 1995(1) SCC 439, Hon'ble Supreme Court has held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
Therefore, I am of the opinion that when the respondent- original accused has been released on anticipatory bail and has not committed any breach of conditions imposed by the court, there are no reasons to exercise my power under section 439(2) of the Code of Criminal Procedure and cancel the anticipatory bail granted in favour of the respondent No.2 herein- original accused.
14. In view of the above, I do not find any reason to interfere with the impugned order dated 20.02.2012 passed by the learned Sessions Judge and the applications deserve to be dismissed and is accordingly dismissed. Notice is discharged in each applications.
[A.J.DESAI, J.] pnnair Page 18 of 18