Bombay High Court
Yunus Razzak Shaikh vs The State Of Maharashtra on 3 January, 2023
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 979 OF 2021
Yunus Razzak Shaikh ...Applicant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL BAIL APPLICATION NO. 807 OF 2022
Vivek Keshav Dongare ...Applicant
Versus
State Of Maharashtra ...Respondent
WITH
CRIMINAL BAIL APPLICATION NO. 1055 OF 2021
Farooque Mahmoodmiya Kazi ...Applicant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL BAIL APPLICATION NO. 2017 OF 2022
Irfan Hussainmiya Qazi ...Applicant
Versus
State Of Maharashtra ...Respondent
....
Mr. M.S.Mohite, Sr. Advocate i/by Mr. Harshad V. Bhadbhade, Advocate
for the Applicant in B.A. No.979 of 2021.
Mr. Ashok Mundargi, Senior Advocate, a/w Mr. Abid Mulani a/w
Mr. Yohaan Mehta, Advocate for the Applicant in BA No.1055 of 2021.
Mr. Abid Mulani a/w Mr. Yohaan Mehta, Advocate for the Applicant in
BA. No.2017 of 2022.
Mr. Vinod P. Sangvikar i/by Adv. Shital Kutwal, for the Applicant in B.A.
No.807 of 2022.
Mr. Amin Solkar, Special Public Prosecutor for the State.
Mr. N. B. Patil, APP for the Respondent - State.
Mr. Nilesh Tambe, Dy.S.P. Mahad, Present.
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....
CORAM : PRAKASH D. NAIK, J.
RESERVED ON : 12th OCTOBER, 2022.
PRONOUNCED ON : 3rd JANUARY, 2023
PER COURT:
1. The Applicants are seeking bail in connection with C.R.
No.79 of 2020 registered with Mahad City Police Station for
offences punishable under Sections 304, 304-A, 337, 338 read with
34 of the Indian Penal Code. During the course of investigation
Sections 420, 471 and 201 of IPC were added.
2. The First Information Report (for short 'FIR') was
lodged by Suhas Sitaram Kamble, Engineer working with Mahad
Nagar Palika on 25th August 2020.
3. The first informant has alleged that, information was
received on 24th August 2020 at about 06:15 pm, building namely
that 'Tarik Garden' situated at 382-B, 382-C and 383-B consisting of
five floor had collapsed and it has resulted in casualties. The
informant visited the place of incident. On inspection, he noticed
that inferior quality material was used for constructing the building
which was the cause of collapse of building and consequent death
of persons and causing injuries to several persons. On verification
of documents it was noticed that, the building was constructed in
the property owned by Abdul Razak Kadir Shaikh. It was
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constructed by proprietor of M/s. Kohinoor Developers Mr.
Farooque Mahamoodmiya Kazi. The work of RCC design relating
to construction of building and RCC construction was carried out
through RCC consultant Shri. Bahubali T. Dhamane through M/s.
Shravani Consultant. The constructions was carried out under the
guidelines of Architect and Consultant, Navi Mumbai. The
permission for construction of building was granted on 11th May
2011 by Chief Officer Shri. Sanjay Shinde and Jr. Supervisor Shri.
Morkhandikar. The Occupation Certificate was issued by Chief
Officer Mr. Dipak Zinzad and Jr. Civil Supervisor Shri. Shashikant
Dighe.
4. Mr. Farooque Mahamoodmiya Kazi, Gaurav Shah,
Bahubali Dhamane, Dipak Zinzad and Shashikant Dighe were
arraigned as accused in the FIR. During the course of investigation,
Yunus Razak Shaikh, Vivek Keshav Dongare and Irfan Hussainmiya
Qazi were also impleaded as accused.
5. Learned Senior Advocate Mr. M. S. Mohite appearing
for Applicant in Bail Application No. 979 of 2021 submitted as
follows:-
(i) The Applicant is in custody from 28 th August, 2020. Further
detention of the applicant is not necessary.
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(ii) The Applicant is not responsible for collapse of building.
(iii) The offence under Section 304 of IPC is not attracted against
the Applicant.
(iv) It cannot be said that the Applicant had knowledge that the
building would collapse and it would result in casualties. The
ingredient to constitute the offence under Section 304 of IPC are
lacking.
(v) The property belonged to father of the Applicant. The
Applicant had not played any role of construction of building. The
development rights were assigned to the co-accused.
(vi) There is no direct or circumstantial evidence connecting the
Applicant with the crime. In the charge-sheet, role attributed to the
Applicant is that he persuaded parties to purchase flats in Tarik
Garden and that the Applicant had collected maintenance amount
from the flat owners. There is no evidence on record to show that,
the Applicant was appointed/authorized to carry out the
construction work.
(vii) Some of the persons, who died in the collapse of building are
related to the Applicant. He was present in the building before the
incident of collapse.
(viii) The construction of the building of Tarik Garden was
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assigned to Farooque Kazi of M/s. Kohinoor Developers. The
Applicant cannot be held responsible for any negligence or
responsible for the unfortunate incident.
(ix) Father of Applicant is the owner of land on which the
building was constructed. In 2011, he obtained permission from
Mahad Municipal Corporation for construction of building and
thereafter, entered into Development Agreement with accused No.1
Farooque Kazi (Kohinoor Developers). As per Development
Agreement, 40 flats were to be constructed out of which the owner
had right to sell 35% flats and balance flats were to be sold by
developer. The accused No.1 Farooque Kazi appointed accused
No.2 Gaurav Shah as Architect and accused No.3 Bahubali
Dhamane as RCC Consultant. One Mr. Shivpal Yadav was appointed
as Contractor. The construction of the building was completed in
year 2013. The building Completion Certificate was obtained. Flats
were sold to various purchasers including relatives of the owner.
(x) Merely because the Applicant has signed as a witness to the
Development Agreement executed on 07 th March 2011 between
Kohinoor Developers and Mr. Abdul Razzak Kadar Shaikh. The
Applicant cannot be held vicariously responsible as he was not the
owner of the said building and construction was done by accused
No.1, who was duly appointed as developer.
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(xi) The Applicant had taken responsibility of collecting
maintenance. However, such act would not make him responsible
for the poor construction.
(xii) None of the witnesses have stated that, they have dealt with
Applicant or the Applicant had visited their shops for purchase of
material. The allegations of purchasing construction materials are
against Farooque Kazi. The accused No.1 Farooque Kazi was
independently dealing with the material suppliers. The statements
of suppliers recorded during the investigation indicts accused No.1
Farooque Kazi and not the Applicant.
(xiii) The Applicant was neither the owner nor developer. He is
not a signatory to any document submitted to the Municipal
Corporation and none of the Municipal witnesses speak about his
participation in obtaining any permissions, which was responsibility
of the developer.
6. The aforesaid Applicant had preferred application for
bail before the Court of Sessions at Mangaon-Raigad which has
been rejected by Order dated 3rd February, 2021.
7. Learned Senior Advocate Mr. Ashok Mundargi
appearing in Bail Application No.1055 of 2021 submitted as
under:-
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(i) The Applicant is in custody for substantial period of time. He
has surrendered to custody on 3rd September 2020. Investigation is
complete and charge-sheet is filed.
(ii) Section 304 of IPC cannot be invoked against the applicant.
There is no evidence on record to show that, the Applicant had
knowledge that the building would collapse and there would be
casualties.
(iii) The building had collapsed 7 years after its completion. The
owner of the building had appointed Architect, RCC Consultant and
Contractor.
(iv) The Applicant was appointed as developer by owner of the
property. Requisite certificates like Occupation Certificate,
Commencement Certificate, Structural Stability Certificate were
obtained by other persons. The building was constructed on
approved plan.
(v) There is no evidence to show that the material used in
construction of building was of inferior quality.
(vi) The Applicant is reputed builder and has constructed several
housing projects. He had constructed as per sanctioned plan by
using building construction material of proper quality. The
Applicant is not responsible for the collapse of building.
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(vii) The report of Directorate of Forensic Science Laboratory
dated 22nd December 2020 with regard to the material used for
construction of the building does not constitute incriminating
evidence against the Applicant.
(viii) Co-accused Shashikant Dighe has been granted bail by lower
Court. Accused No.3 Bahubali Dhamane is granted bail by the
Court of Sessions at Mangaon-Raigad vide Order dated 3 rd
February, 2021.
(ix) This Court is in similar cases has granted bail to the accused.
Reliance is placed on the Order dated 14th September 2018 passed
by this Court in Bail Application No.1597 of 2018 in the case of
Shoaib Hasim Vajihuddin Vs. The State of Maharashtra, Order
dated 28th October 2014 passed by this Court in Bail Application
No.850 of 2014 in the case of Abdul Salim Shaikh and Anr. Vs. The
State of Maharashtra, Order dated 8th May 2014 passed by this
Court in Bail Application No.568 of 2014 in the case of Sundeep
Kumar Bafna Vs. State of Maharashtra, Order dated 16 th October
2020 passed by Apex Court in Criminal Appeal No. 689 of 2020 in
the case of Ali Akbar Shroff Vs. State of Maharashtra and Order
dated 16th May 2018 passed by this Court in Bail Application
No.995 of 2018 in the case of Ravi Surajmal Bharidari Vs. The
State of Maharashtra.
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8. The above Applicant had preferred an application for
bail before the Court of Sessions at Mangaon-Raigad. The said
application was rejected vide Order dated 3rd February 2021.
9. Learned Advocate for the Applicant in Bail Application
No.807 of 2022 submitted as follows:-
(i) The Applicant cannot be held responsible for the collapse of
building.
(ii) Section 304 of IPC cannot be applied against the Applicant.
(iii) The building was constructed by accused No.1.
(iv) The Applicant was arrested on 15 th February 2021.
Investigation is completed and charge-sheet is filed. Further
custody of the Applicant is not necessary.
(v) There is no evidence on record suggesting the involvement of
the Applicant in the offence.
(vi) The Applicant was not responsible for any type of
construction of the building.
(vii) There is no evidence to show that the Applicant had
fabricated document.
(viii) The building was constructed in 2013 and the possession was
handed over to the flats purchasers.
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(ix) Mr.Bahubali Dhamane has been granted bail by the Sessions
Court at Mangaon-Raigad.
(x) It is alleged that the Applicant had forged signature of
Gaurav Shah, who is also accused in this case. The prosecution is
relying upon the alleged conversation between Applicant and one
Mr.Santosh Girkar. The prosecution is also relying upon the
statement of Mr.Santosh Girkar. It is difficult to believe that as to
why Mr.Santosh Girkar has recorded the conversation. The
conversation does not disclose that the Applicant had forged
signature of Mr.Gaurav Shah. The Statement of Mr.Santosh Girkar
is contrary to recorded conversation.
10. The Applicant had preferred an application for bail
before the Sessions Court at Mangaon-Raigad which has been
rejected by Order dated 13th November 2021.
11. Learned Advocate for the Applicant in Bail Application
No.2017 of 2022 submitted that, the Applicant has been falsely
implicated in this case. The Applicant was not responsible for
construction of the building. The Applicant is arrested on 27 th June
2021. The Applicant is the cousin of accused No.1. The Applicant
was never appointed as Supervisor. Section 304 of IPC cannot be
applied against the Applicant. The Statement of witnesses does not
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attribute any overt act to the Applicant. The Applicant was
arraigned as accused subsequently on the ground that, he was
working as Supervisor and some of the witness has referred to his
visits to the spot. Assuming the allegations to be true, the
Applicant cannot be held responsible for collapse of building. The
applicant was not named in FIR. There is no
document/Appointment Order/Service Letter to show that the
Applicant was working as Supervisor at the site of construction.
The Applicant is not signatory to any document and not involved
with any other financial transaction with any of the flat purchasers.
There is no recovery or discovery at the instance of the Applicant.
12. The aforesaid Applicant had preferred application for
bail before the Court of Sessions which has been rejected vide
Order dated 8th February 2020.
13. Learned Special Public Prosecutor Mr.Amin Solkar
vehemently opposed the prayer for grant of bail to the Applicants.
It is submitted that, the offence is of serious nature. The collapse
of building has resulted in death of several persons and injuries to
the witnesses. The building had collapsed on account of use of
inferior quality material. All the accused are responsible for
collapse of building. The victim had died on account of fall of
building and suffocation. He relied upon the report of Technical
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Investigation of Collapse of Tarik Garden Building submitted by
Structural Engineering Department, VJTI Mumbai dated 17 th May
2021. Section 304 of IPC is squarely applicable in the present case.
At this stage, the submissions of accused that the said provision is
not applicable cannot be considered. Due to used of inferior quality
material and not taking into consideration the complaints of
occupants has resulted in collapse of building. The accused had
knowledge that on account of use of inferior quality material and
other factors the building may collapse which would result in death
of people. The statement of witnesses recorded during the course
of investigation, depicts role played by Yunus Shaikh. His father
Abdul Sattar was the owner of the plot on which building was
constructed. He had signed as a witness to the Development
Agreement executed between his father and the developer. He has
signed Power of Attorney executed by his father in favour of builder
Farooque Kazi as a witness. He was inspecting the construction
work of the building. Out of 40 flats belonging to his father, the
said accused had sold them for monetary gain. Despite of the
knowledge about lower quality construction of the building, he had
collected the amount from the occupants. He had signed the
receipts as a proprietor. He had opened his office in the parking
place of building and was accepting the amount from the occupants
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towards maintenance. The occupants had informed him about the
fall of plaster and the column plaster. He had ignored complaints.
Though, the society was not registered, he was accepting the
amount and issuing receipts in the name of M/s. Kohinoor Co-
operative Society. He was supervising construction of the building.
He had participated in construction of building.
14. Learned Special Public Prosecutor further submitted
that the Applicant in Bail Application No. 1055 of 2021 Mr.
Farooque Kazi was appointed as developer of the building. There is
voluminous evidence showing his involvement in the offences. The
accused is the Power of Attorney of Abdul Razzak Kadar Shaikh
and proprietor of M/s. Kohinoor Builder and Developers. He
sought construction permission of the collapsed building. The RCC
map has not been recovered. Vital documents are missing. He had
brought the building material. He was inspecting the building and
despite intimation about the low quality sand, he instructed to
continue with the work of plaster. The plaster work was not done
to all the walls and instead gypsum was used. Huge amount of grit
powder was used. He directed redesigning of the RCC plan as the
previous plan was expensive. 16 persons lost their lives and 9
persons sustained injuries. The accused Yunus Shaikh was looking
after the work of maintenance at the instance of accused. The
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Applicant Farooque Kazi and accused No.6 Yunus Shaikh ignored
the complaints of occupants. The statement of witnesses recorded
during the course of investigation clearly indicts the above
Applicant. He was responsible for collapse of building which was
constructed 7 years ago. The report submitted by VJTI Mumbai
supports the prosecution case. The Applicant has played vital role
in the crime. He is not entitled for bail.
15. Mr. Solkar, Special Public Prosecutor submitted that
the Applicant in Bail Application No.807 of 2022 the Applicant
(Vivek Dongare) has acted in connivance with co-accused. The
statement of witnesses were recorded during the course of
investigation refers to his involvement. The Applicant was visiting
the construction site. The statement of contractor Shivpal Yadav
refers to participation of the Applicant during construction. He was
involved in forgery of signature of Architect Gaurav Shah. The said
Applicant had preferred an application for anticipatory bail which
was rejected by High Court. The Statement of witnesses show that
the Applicant was supervising the construction work of Tarik
Garden.
16. Special Public Prosecutor Mr. Solkar submitted that the
application preferred by Applicant in Bail Application No. 2017 of
2022 is also required to be rejected on account of his involvement
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in the crime. The Applicant is cousin of Farooque Kazi. He was
supervising work and used to visit the site of construction. He was
supervising construction on instructions of accused Farooque Kazi.
Some of the witnesses have referred to his presence of construction
site. He has personally supervised the construction of the Tarik
Garden. He had withdrawn the amount from the account of
Farooque Kazi in the year 2014. He was visiting the building.
17. Charge-sheet filed against the accused would indicate
that Mr.Abdul Razak Shaikh is the owner of land at Mahad. The
building Tarik Garden was constructed on the land owned by him.
He obtained permission from the Mahad Municipal Corporation for
construction of building on 11th May 2011. Development
Agreement was executed with M/s. Kohinoor Developers which is
proprietory concern of accused Farooque Kazi. Development
Agreement was executed between Accused No.1 and Abdul Razak
Shaikh on 7th March 2011. Supplementary agreement was executed
between the same parties on 5 th April 2011. Completion Certificate
was issued on 19th October 2013. The building had collapsed on
24th August 2020.
18. The FIR was registered on 25th August 2020 against
the accused referred to herein above. Technical Investigation of
Collapse of Tarik Garden Building was sought through VJTI
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Mumbai on following issues:-
(a) Adequacy of RCC structural elements as per structural design
and drawings of building.
(b) Mapping of diameter of still reinforcement of structural
elements and their numbers as per structural design and drawings
of building.
(c) Mapping of spacing of steel reinforcement in structural
elements as per structural design and drawings of building.
(d) Comparison of in-situ strength of concrete in structural
element with expected concrete strength as per structural design
and drawing of building.
(e) Adequacy of depth of foundation, capacity of foundation and
safe bearing capacity of soil.
The report dated 17th May 2021 submitted by VJTI is on
record. The report indicate that quality of concrete in tested RCC
sample is inconsistent and poor. The ultrasonic pulse velocity test
results show that at most of places quality concrete in tested RCC
samples is doubtful. The compressive strength of concrete is less
than the design strength of concrete. The report also contains other
observation with regard to the construction of building.
19. During the course of investigation, panchnama dated
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28th October 2020 with regard to seizure of pen drive regarding
conversation between accused Vivek Dongare and Santosh Girkar
was recorded. The Statement of Santosh Girkar was also recorded.
The transcript of alleged conversation between Vivek Dongare and
Santosh Girkar is reproduced in the panchnama. The statement of
Santosh Girkar dated 28th October 2020 mentioned that the
accused Vivek Dongare has told him that he had signed as Architect
in the name of Gaurav Shah. Contents of recorded conversation
and the statement of Santosh Girkar differ. The statement of
Swapnil Shirke was recorded on 26 th August 2020. He has stated
that he was appointed as Supervisor in the building after its
completion by accused Yunus Shaikh. He is the eye witness to the
collapse of building. Mujammil Shakil Karbelkar in his statement
has stated that, he was occupant of the building. His father had
purchased flat from Yunus Shaikh and Farooque Kazi in the year
2012. After occupying the flat, the occupants had made request to
Yunus Shaikh and Farooque Kazi for registration of society. They
had informed that until all the flats are sold, society cannot be
registered. The occupants were paying the maintenance to Yunus
Shaikh. Since last two years it was noticed that, the plaster of the
building would fall and complaints were made to Yunus Shaikh and
Farooque Kazi. They had ignored those complaints. Few months
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ago, large plaster of the building had fallen which could have
resulted in death of any person and complaint in that regard was
made to Yunus Shaikh. Statement of Shakil Kabelkar is similar. He
has reiterated that since last two years complaints regarding fall of
plaster were made to Yunus Shaikh and Faroouqe Kazi and they
had ignored the complaints. He has referred to collapse of building
and death of persons below the debris of the building. The
statement of Sameer Pore also refers to the condition of building
and the incident of collapse of building. The statement of Mannan
Shakil Karbelkar was recorded under Sections 161 and 164 of
Cr.P.C., on 26th August 2020 and 10th November 2020 respectively.
He has stated that Yunus Shaikh had introduced Farooque Kazi and
persuaded him to purchase the flat. While construction was in
progress it was noticed that instead of plastering, gypsum was
applied to the construction. On questioning them, it was informed
that they have adopted new system of construction. Yunus Shaikh
was using space in the parking slot as his office. He was informed
that the construction of the building was not properly done and
complaints were made about fall of plaster. However, the
complaints were ignored. Statement of Smt. Shahida Karbelkar
and Smt. Mehtab Nadkar are similar. The charge-sheet contains
the photographs of the building indicating cracks to the building.
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The statement of Aavesh Chichkar referred to the complaints
regarding fall of plaster made to Yunus Shaikh. Statement of
Aavesh Chichkar was recorded under Section 164 of Cr.P.C. He has
stated that the maintenance of building Tarik Garden was looked
after by Yunus Shaikh. Complaints about fall plaster of the building
were made to him. The column in the parking slot was broken and
iron rods were visible. It was brought to the notice of Yunus
Shaikh and he carried out repairs in that regard whenever
complaints were made about the construction of building, Yunus
Shaikh used to assure that the building is strong. Statement of
Irshad Anvare is similar to the aforesaid statement. Statement of
Smt.Safa Kauchali was recorded under Section 164 of Cr.P.C. on
27th August 2020. She refers to collapse of building and the fact
that her relation was struck under the debris. She has referred to
the role of Yunus Shaikh regarding maintenance of building.
Statement of Ramchandra @ Ram Vitthal Marathe was recorded on
7th September 2020. He is the RCC Consultant. According to him,
he had worked with Bahubali Dhamane, who was the RCC
Consultant. He stated that Vivek Dongare was acting through his
concern vertical architect and used to provide the RCC design work
to Bahubali Dhamane. Mr. Dhamane had sent the said witness to
Mahad for project visit. He visited the spot. He noticed that the
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pits constructed for construction were not as per requirement for
construction of building. He had advised the builder Farooque Kazi
to increase the depth and breadth of pits. Farooque Kazi had told
him that construction of plinth steel and other articles are required
which would increase the cost and it is not necessary to increase
the depth and breadth of pits. The witness had informed about the
said fact to Mr. Bahubali Dhamane. However, he did not know
what had happened thereafter. The statement of Shivpal Yadav
was recorded on 21st September 2020. He stated that he was
undertaking the work of construction of column and slab centering.
He was introduced to Yunus Shaikh and Farooque Kazi. He was
informed that the Contract of centering will be provided to him in
2011. He was provided the work of centering of building of Trique
Garden. Contract was signed by him. Mr.Vivek Dongare was also
present at the site. The responsibility of Supervising the column
was of Farooque Kazi. Yunus Shaikh was Supervising the
construction work. As per the plan of Mr.Vivek Dongare, he
completed the slab centering work on instructions of Farooque Kazi
and Yunus Shaikh. The Contractor had used sand, concrete, grit
powder and cement during construction. One Asrar Pathan was
appointed by Farooque Kazi as Supervisor. Cousin of Farooque
namely Irfan Kazi was also supervising the work. During the work
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of slab, the contractor was appointed by Farooque Kazi and Yunus
Shaikh. Statement of Aminur Ansar Ali was recorded on 22 nd
September 2020. His statement was also recorded under Section
164 of Cr.P.C. on 29th September 2020. He has stated that, he was
assigned the work of plastering of Tarik Garden Building. Farooque
Kazi and Yunus Shaikh were giving inspection during the
plastering. The witness used sand and cement as per their
instruction. He had informed Farooque Kazi that sand is of inferior
quality. Farooque Kazi ignored the said fact and told him to
proceed with the work. Statement of Vakil Makbul Khan was
recorded on 23rd September 2020 under Section 161 of Cr.P.C. and
3rd October 2020 under Section 164 of Cr.P.C. He has stated that he
was assigned work of POP in respect to the Tarik Garden building.
He was instructed by Farooque Kazi to carry out the work of POP
without plastering. Yunus Shaikh and Farooque Kazi used to
supervise the work. Abdul Razak Kadar Shaikh in his statement
dated 6th November 2020 has stated that he had purchased the
land bearing city survey No. 282-B, 282-C and 283-B. He was
interested in developing the said land. He was introduced to
builder Farooque Kazi. He assigned the work of developing and
construction of building to builder Farooque Kazi. In April 2012,
on account of his unavailability, he assigned all the rights to his son
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Yunus Shaikh by using Power of Attorney and he went to America.
The work of construction of Tarik Garden had commenced.
Farooque Kazi had assigned supervising work to Irfan Qazi. On
completion of building, flats were sold to purchasers.
20. From these statements of witnesses and material on
record it is apparent that Yunus Shaikh and Farooque Kazi had
played vital role in construction of the building. They had ignored
complaints of occupants. The statements of witnesses indicates that
quality of construction was poor. Both accused were vising the site
of construction and supervising the work. At this stage, it is
difficult to accept that the Applicant Yunus Shaikh and Farooque
Kazi cannot be prosecuted for offence punishable under Section
304 of IPC. Yunus Shaikh was assigned all the rights in respect to
the subject property by his father. He had signed Power of Attorney
in favour of Farooque Kazi as a witness. He was inspecting the
construction work of the building and having knowledge that, the
construction material was of lower quality. Out of 40 flats, 14 flats
belonging to his father were sold for monetary gain. He accepted
amount from occupants and signed receipts as proprietor. He
opened his office in parking place of the building and accepted the
amount from the occupants for the maintenance. The occupants
had informed him about the fall of plaster and the column plaster
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but he had ignored it. Hence no case for grant of bail is made out
by the Applicant Yunus Shaikh.
21. Specific role has been attributed to the Applicant
Farooque Kazi. The statements of witnesses clearly indicate that he
was instrumental in constructing building. He was aware about the
fact that construction was of poor quality and the material used for
constructing building was of inferior quality. Inspite of bringing the
said fact to his notice, he ignored the same. He is Power of Attorney
holder of Abdul Razam Kadar Shaikh and proprietor of M/s.
Kohinoor Builder and developer. He was inspecting the building
and instructing labourers and despite of low quality sand, he
continued with the work of plaster. Gypsum was used. Huge
amount of grit powder was used. He directed redesigning of the
RCC plan since the previous plan was expensive. Accused No.6
Yunus Shaikh was looking after the work of maintenance at the
instance of this accused. Complaints were made to accused No.6
and accused No.7 about the condition of building which was
ignored by them. He is directly involved in the construction work
of building. There is prima facie evidence about his involvement in
the construction. The statements of witnesses established that
standard of construction was poor. The Applicant Farooque Kazi
and Yunus Shaikh had interfered with the construction work and
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issued direction for using low quality material. This fact is
supported by report of VJTI about Technical Investigation of
Collapse of Building. Hence no case for grant of bail to the
Applicant Farooque Mahmoodmiya Kazi and his application
deserves to be rejected.
22. The role of Applicant Vivek Dongare and Irfan Qazi
can be distinguished from the aforesaid Applicant. The statement
of some of the witnesses refers to the presence of Vivek Dongare at
the site of construction. The prosecution is also relying upon his
conversation ensued between accused Vivek Dongare and Santosh
Girkar. It is the case of prosecution that the Applicant had
admitted that he had signed on behalf of Gaurav Shah. It is
pertinent to note that, Gaurav Shah is also impleaded as accused in
this case. The contents of the alleged conversation between the
accused Vivek Dongre and witness Santosh Girkar is reproduced in
the panchnama and as reflected in his statement of Mr. Girkar is
not ad-verbatim. The conversation does not indicate that the
accused has admitted to have forged signatures of Gaurav Shah.
The Applicant had preferred an application for anticipatory bail
before this Court although, the application was rejected vide Order
dated 7th January 2021, this Court had observed that, the fact
remains that Municipal Council accepted the certificate purportedly
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signed by Gaurav Shah and granted Completion Certificate.
Though, the transcript of telephonic conversation suggests that
Vivek Dongare had forged Gaurav Shah's signature but it may also
be noted that, though conversation was allegedly recorded by Mr.
Santosh Girkar on 25th August 2020 panchanama of the transcript
was done nearly after two months. Firstly, why Mr. Santosh Girkar
had recorded conversation and secondly, in which circumstances,
are the two facts in issue. Besides, why and under which
circumstances, Mr. Santosh Girkar produced, pen drive to police
and that too after two months, is another issue to be gone into; but
not at this stage. This Court refrained from relying on and or
analysing the transcript. The approved plan of the building and the
entire file and electronic evidence in relation to building "Tarik
Garden" is missing from the office of the Municipal Council.
Thereafter, the Applicant Vivek Dongare was arrested and he is in
custody. Investigation is complete and charge-sheet is filed. It is
pertinent to note that, accused No.3 Bahubali T. Dhamane has been
granted bail by the Court of Sessions vide Order dated 3 rd February
2021. The role attributed to the said accused is that he was
appointed as Structural Consultant in the building. It was
contended that, he has not issued such certificate which was forged
document. While granting bail it was observed that, from the
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allegation against the accused that he had issued Structural
Stability Certificate in respect of Tarik Garden Building, the said
certificate is already recovered and placed on record. The
prosecution has not mentioned anything about further recovery at
the hands of accused. His role is limited about issuance of
certificate. He had no active role of participation in the
construction of building and more particularly using lower quality
material. Even it was submitted by prosecution that, there is no
strong opposition to the bail application preferred by the said
accused. It was further observed that considering the nature of
evidence against Vivek Dongare, his further detention is not
warranted. Case for grant of bail to the said Applicant is made out.
23. The Applicant Irfan Qazi is related to the accused
Farooque Kazi. The statement of some of the witnesses does
indicate that the Applicant used to be present at the site of the
construction on some occasions. It is alleged that the Applicant
was appointed as Supervisor by Mr. Farooque Kazi. There is no
evidence on record to indicate his appointment as a Supervisor.
Except vague reference, no overt act has been attributed to the
Applicant Irfan Qazi. He had no power of decision making. The
evidence on record does not indicate that he had participated in
construction activity or was instrumental in using inferior quality
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material for construction of the said building. He was not named
as accused in the FIR. He was subsequently arrested. Investigation
is completed. His further custody is not necessary. Considering the
role attributed to him, bail can be granted on certain terms and
conditions.
ORDER
(i) Criminal Bail Application Nos.979 of 2021 and 1055 of 2021 are rejected.
(ii) Criminal Bail Application Nos.807 of 2022 and 2017 of 2022 are allowed;
(iii) The Applicant Vivek Dongare and Irfan Qazi are directed to be released on bail in connection with C.R. No. 79 of 2020 registered with Mahad City Police Station on executing PR bond in the sum of Rs.50,000/- each with one or more sureties in the like amount;
(iv) The Applicant Vivek Dongare and Irfan Qazi are permitted to furnish cash bail in the sum of Rs.50,000/- each for a period of six weeks in lieu of sureties.
(v) The Applicants Vivek Dongare and Irfan Qazi shall report concerned police station once in a month on first Saturday of the month between 11:00 am to 01:00 pm for a period of six months 27 Ethape 8-BA-979-2021+3 BA.doc and thereafter once in a three months on first Saturday of the month between 11:00 am to 01:00 pm till further Orders.
(vi) The Applicant Vivek Dongare and Irfan Qazi shall attend the trial Court on the date of hearing of the case regularly unless exempted by Court for some reason.
(vii) All Criminal Bail Applications stand disposed off.
(PRAKASH D. NAIK, J.) Digitally signed by DNYANESHWAR DNYANESHWAR ASHOK ETHAPE ASHOK ETHAPE Date: 2023.01.03 18:31:09 +0530 28