Bombay High Court
Vishwas Manohar Dangat vs The State Of Maharashtra on 19 December, 2019
Equivalent citations: AIRONLINE 2019 BOM 2859
Author: Prakash D. Naik
Bench: Prakash D. Naik
Sajakali Jamadar 1 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CR. ANTICIPATORY BAIL APPLICATION NO. 2205 OF 2019
Vishwas Manohar Dangat ....Applicant
V/S
The State Of Maharashtra ....Respondent
WITH
CR. ANTICIPATORY BAIL APPLICATION NO. 1868 OF 2019
Sudhir Vasudeo Borkar ....Applicant
V/S
The State Of Maharashtra ....Respondent
.....
Mr. Hrishikesh Mundargi, Advocate For Applicant in ABA No. 2205
of 2019.
Mr. D.S.Mhaispurkar, Advocate for Applicant in ABA No.1868 of 2019.
Mr. P .P. Shinde APP for State/Respondent
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 19th December, 2019
PC :
1. The applicants in both these applications are apprehending
arrest in C.R. No. 467 of 2019 registered with Bharti Vidyapeeth
Police Station, Dist. Pune for offences punishable under Sections 304,
308, 337 and 338 and 34 of IPC.
2. The applicants in Anticipatory Bail Application No.2205 of
2019 are partners in partnership firm M/s. Shree Samartha
Construction Group. They had undertaken the land bearing S.No.
10/10 Village Ambegaon Budruk, Haveli, Pune for development from
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 2 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
its owners Mr. Sakharam Ganpat Kondhare and others by
development agreement and Power of Attorney dated 23 rd April
2015. The applicant in Anticipatory Bail Application No. 1868 of
2019 is propprietor of M/s. Abhishek Construction. He was given
work order on 16th July, 2010 by Sinhagad Technical Education
Society for construction of compound wall.
3. The prosecution case is as follows.:
On the night of 1st July, 2019 at about 11.50 p.m. the
complainant received a call from the police station officer that the
compound wall adjoining Mrs. Venutai Chavan Polytechnic college at
Vadgaon, Ambegaon Budruk has collapsed. Since Sinhagad College
comes within the jurisdiction of Ambegaon Beat Marshals the
representative of the bit chowki reached the place of the incident and
confirmed with control room that the stone compound wall adjoining
Mrs. Venutai Chavan Polytechnic college and Sinhagad Technical
Education Society had collapsed and the huts along the wall were
buried under the brick, stone debris of the wall with the labourers
residing in the huts. The Fire Brigade team arrived and injured taken
to the hospital. During the search and rescue operation they pulled
out 16 laborers out of which 6 had died and 10 were injured. The
place of incident is an open space approximately 80 to 100 feet in
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 3 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
length which has 12 feet stone wall with 4 feet brick construction
over it. It was alleged that along the wall is Sinhagad Technical
Education Campus Pune, Students activity Centre and Venutai
Chavan Polytechnic College. There is an open space for parking plot
and and fire floor building under construction. The labourers
employed for construction activity were given temporary residence in
the huts along the wall. Cracks in compound walls were ignored and
no steps were taken to strengthen the wall or repair. The respective
authorities, the owner of the said property, the builder as well as the
construction contractor did not take any repairing work to strengthn
wall. The construction authority builder and contractor knowingly
accommodated their construction laborers in the temporary bamboo
and teen huts along the weak compound wall which had cracks and
absorbing water due to heavy rain, resulting in collapse on these huts
leading to the entrapment of 16 Persons.
4. The applicants had preferred application for anticipatory bail
before the Sessions Court were rejected on 19 th August, 2019 &
4th September, 2019.
4. Learned counsel for the applicant in Anticipatory Bail
Application No.2205 of 2019 submitted that the charge under
Section 304 -II or any other Penal provisions cannot be attributed to
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 4 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
the applicant. It is submitted that the knowledge which is requisite to
constitute the offences of culpable homicide not amounting to
murder as envisaged under the provision of Section 304 (2) cannot
be attributed to the applicants. The applicants are not responsible for
collapse of wall. The applicants were not concerned with the
construction of wall or taking in precautionary measures for
repairing the wall. The wall was constructed several years ago and
collapsed on account of its condition. The institute planted trees
close to wall. The technical report by engineering college states that
construction quality is poor. It was unsafe. It is submitted that the
labourers were working for labour contractor or and they were
deployed by the said contract at various places. The huts were
erected at his instance. The laborers had not informed the applicant
about any apprehension of danger to their life on account of
dilapidated condition of the wall. The applicant were not concerned
with the incident of the collapsed of wall which has resulted in
injuries and casualties to the laborers. The owners of the land and
others were granted anticipatory bail. The applicants had tendered
additional affidavit stating that the charge-sheet in respect of FIR has
been filed by the investigating machinery on 17 th September, 2019
and on perusal of the charge-sheet it is apparent that the compound
wall had collapsed on the night of 1st July, 2019. There was much
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 5 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
distance between the wall and the huts. Several trees were planted
behind wall by Mrs. Venutai Chavan Polytechnic college after the
construction of the wall and there was students activities center.
Behind the said wall in the space between the said wall and the
permanent structure of the college, there was underground storm
pipeline which runs parallel to the said wall. That the huts of the
laborers were constructed on the other side of the wall at the
distance of about 10 feet from the said wall. The applicant have
relied upon photographs which are annexed to this affidavit and it is
contended that it can be seen that trees alongside the wall were
planted above storm water pipeline. As a result of this roots of the
tress could not seep into soil on account of obstruction of pipelines
underneath. As the roots would not grow downwards in to the soil,
they had grown in such a way that they seeped into the wall
affecting the strength said wall. It is submitted that the observations
made by the City Engineer PMC indicates that trees were wrongly
planted over a pipelines which had weakened the wall. It is
submitted that report by Pune Muncipal Corporation mentions that
the retaining wall retained back fill soil of varied height 2.4 M to
2.5M. In the open space between retaining wall and building trees
are seen. Trees behind wall have cracked into masonry structure
seepage increased the pressure on the wall. It is submitted that in the
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 6 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
aforesaid circumstance custodial interrogation of the applicant were
not warranted and they have willing to cooperate with the
investigation.
6. Learned advocate appearing in Anticipatory Bail Application
No. 1868 of 2019 submitted that he had no control over the wall
which was constructed in 2010. The responsibility to get the wall
repaired was with the Sinhagad Technical Institute. On 7 th July, 2011
the applicant had written letter to the institution to release the
balance amount which was withheld as security deposit for 6
months. The said amount was related since construction was done by
applicant in accordance with specification. He was not assigned work
to look after maintenance of wall. It is further submitted that the
concerned college had carried out the construction by increasing the
height of the wall which is apparent from the statement of Mangesh
Ranka recorded on 6th July, 2019 which is affirmed in the charge-
sheet filed against the accused. He further submitted that the
contractor carried out the repairs of the wall of the extending its
height was also impleaded the accused which appears from applicant
forwarded by police to the learned J.M.F.C. for recording statements
under Section 164 of Cr.P.C. In the said application M/s. Shree
Samartha Construction Group was shown as an wanted accused. It is
submitted that the said accused has not been arrested. He further
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 7 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
submitted that the damage to the wall was caused on account of the
growth of trees and seeping of root of trees into wall. The applicant
had no occasion to supervise the condition of the wall at the relevant
time. Hence, the applicant cannot be attributed with any knowledge
required to constitute the offence under Section 304 -II.
7. Learned APP submitted that the offence is of serious in nature.
The negligence on the part of the accused had resulted in death of
six persons and injuries to ten persons. Learned App relied upon the
report with regards to the construction of wall and its strength which
indicate that the construction was weak. She relied on technical
reports by corporation and Pune Engineering College. It is further
submitted that the applicant in Anticipatory Bail Application No.
2205 of 2019 were aware about the dilapidated condition of the wall
and in spite of fact that huts were erected to accommodate laborers.
She further submitted that the accused were informed about the
condition of the wall and apprehension of danger by persons
occupying the huts. In spite of information provided to them no
action was initiated. They had knowledge that any untoward
incident may occurre causing danger to the life of the persons
occupying huts which were situated near the compound wall. It is
further submitted that the investigation is in progress and this is not
the stage of evaluating the evidence. Prima facia involvement of the
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 8 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
applicants is disclosed during the investigation and therefore the
applicants are not entitled for anticipatory bail.
9. I have perused the documents. The case of the prosecution is
evident from the FIR and the investigation papers. The compound
wall was constructed in 2010. The applicant in Anticipatory Bail
Application No. 2205 of 2019 had undertaken the contract of
development. On 1st July, 2019 the compound wall had collapsed on
the huts of the labourers in which six persons died and 10 others
were injured. The investigation reveals that the applicants in
Anticipatory Bail Application No. 2205 of 2019 were partners of M/s.
Shree Samartha Construction Group who had taken land bearing Gat
No. 10/10 Village Ambegaon Budruk, Haveli, Pune for development.
The huts were eracted for accommodate laborers. They were situated
at close distance at the compound wall. The contention of the
applicants is that the growth of trees and shifting of roots in the wall
had caused the collapse. The investigation indicates that the said
applicants were having knowledge that the impugned compound
wall of Sinhagad Technical Education Society is in dangerous
condition. It is also the case of the prosecution that there were huts
were installed adjacent to the wall and in spite of fact that the
laborers have brought to the notice of the said fact to applicants that
the wall is in dangerous condition and that there is possibility of
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 9 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
collapse no action was taken. The statement of the witnesses
labourers mention that they have stated that they had brought to the
notice the dilapidated condition of the wall. and possibility that the
same would collapse on the huts. Although assurances were given
huts were not shifted to safe location. The applicants in Anticipatory
Bail Application No. 2205 of 2019 had submitted that wall has
collapsed due to its condition and seepage of roots and growing of
trees. In the situation it was expected that instant steps could have
been taken atleast after condition of wall was brought to their notice.
10. As far as the applicant in anticipatory bail application No.
1868 of 2019 is concerned it is apparent that on the work order
issued by Sinhagad Technical Education Institute, the wall was
constructed by him in 2010. It also appears from the statement of
one of the witness that subsequently the height of the wall was
increased. The evidence do not disclose that the said applicant had
any control over the wall after it was constructed. Although the
technical report mentions that construction was weak, it is relevant
to note that changes were brought in wall. He cannot be attributed
knowledge that huts were erected when he is not concerned with
maintenance. The subsequent contractor who had allegedly carried
out the extension of the wall shall showed as an accused apparent
from application forwarded for recording statement under Section
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::
Sajakali Jamadar 10 of 11 904-ABA-2205-2019-ABA-1868-2019.doc
164 of Cr.P.C. filed before the concerned court. In the factual matrix
of the case is the said applicant can be granted protection under
Section 438 of Cr.P.C. Prima facie is required under the penal
provisions.
11. However considering the observation herein above and in the
light of material on record the applicants in Anticipatory Bail
Application No. 2205 of 2019 are not entitled for grant of
anticipatory bail.
12. Hence, I pass the following order.
ORDER
i) Anticipatory Bail Application No. 2205 of 2019 is rejected;
ii) Anticipatory Bail Application No. 1868 of 2019 is allowed.
iii) The interim order dated 30th August, 2019 passed in Anticipatory Bail Application No. 1868 of 2019 is hereby confirmed. In the event of arrest of applicant Sudhir Borkar in C.R. No. 467 of 2019 registered with Bharti Vidyapeeth Police Station, Dist. Pune, he be released on bail on furnishing P. R. Bond in the sum of Rs.25000/- with one or ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 ::: Sajakali Jamadar 11 of 11 904-ABA-2205-2019-ABA-1868-2019.doc more sureties in the like amount;
iv) The applicant shall report concerned police station once in a month on every first Saturday between 10.00 am. to 12.00 pm. till filing of charge sheet.
v) Applications stand disposed of accordingly.
(PRAKASH D. NAIK, J.) ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 21:24:49 :::