Bombay High Court
Anil Ramkrishna Patil vs The State Of Maharashtra on 18 December, 2019
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 2826 OF 2019
SANDIP FAKIRA KAKULTE ....APPLICANT
V/S.
STATE OF MAHARASHTRA,
THROUGH AZAD MAIDAN
POLICE STN. ...RESPONDENT
BAIL APPLICATION NO. 2699 OF 2019
NEERAJKUMAR DILIP KUMAR
DESAI ....APPLICANT
V/S.
STATE OF MAHARASHTRA,
THROUGH AZAD MAIDAN
POLICE STN. ...RESPONDENT
BAIL APPLICATION NO. 2814 OF 2019
SHITALA PRASAD ORI RAM KORI ....APPLICANT
V/S.
STATE OF MAHARASHTRA,
THROUGH AZAD MAIDAN
POLICE STN. ...RESPONDENT
BAIL APPLICATION NO. 2813 OF 2019
ANIL RAMKRISHNA PATIL ....APPLICANT
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V/S.
STATE OF MAHARASHTRA,
THROUGH AZAD MAIDAN
POLICE STN. ...RESPONDENT
*****
Mr. Rishi Bhuta a/w Manish Bohra, Ujjwal Gandhi,
Gunjan Thakkar, Tushar Dahibawkar, Aarti Bhoir,
Anurag Ghag, Ashish Dubey i/b Dahibawkar and Co. for
applicant in BA-2826/2019.
Mr. D. N. Salvi a/w Sahil D. Salvi, Suyash Sule,
Ninad More, Aditya Raktade, Sagar Redkar for the
Applicant in BA-2699/2019.
Mr. Shirish Gupte Sr. Adv.a/w Ashwin Thool i/b Kunal
Shejwal for Applicant in BA Nos. 2813 and 2814/2019.
Mr. Y. M. Nakhawa a/w. Mr. S. R. Agarkar, APP for the
Respondent- State.
PI Mr. Ramesh Yadav - Azad Maidan Police Station.
CORAM : SANDEEP K. SHINDE, J.
DATED : 18TH DECEMBER, 2019
P.C. :
1. Applicant in Bail Application No. 2813 of
2019 is Executive Engineer (Bridges) with Municipal
Corporation of Greater Mumbai ("M.C.G.M." for
short).
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2. Applicant in Bail Application No. 2814 of
2019 was appointed as a Chief Engineer (Bridges).
He retired on 31st July, 2018.
3. Applicant in Bail Application No. 2826 of
2019 is Assistant Engineer with the Bridges
Department, M.C.G.M.
4. Applicant in Bail Application No. 2699 of
2019 is a Consulting Engineer in whose favour the
Work-Order was issued by the M.C.G.B. for
making/undertaking inventory of bridges in Mumbai.
5. Applicants are seeking their enlargement
on bail in Crime No.39/2019 (corresponding Sessions
Case No. 844/2019) for the offences punishable
under Sections 304(ii), 337 and 338 of the Indian
Penal Code.
FACTS :
6. On 14th March 2019, six commuters were
killed while thirty-four others sustained injuries
after the nodal footover bridge at the northern end
of Chatrapati Shivaji Maharaj Terminus (CSMT) came
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crashing down. The police lodged an FIR against the
BMC for, "negligence" leading to death.
7. On 15th March, 2019 Municipal Commissioner
directed Chief Engineer (Vigilance) to conduct
enquiry of the incidence and fix-up responsibility
of municipal staff, structural auditors. The
report has blamed negligence of officers of
Corporation and auditors for resulting into mishap
on March 14th, where seven people died. Chief
Engineer (Vigilance) reported following
supervision lapses designation-wise of the staff,
as under :
(a) Chief Engineer (Bridges) -
(i)Bridge Dept. Maintenance Manual and the
circular not followed by the Department in toto
with respect to periodic inspections and repairs
of FOB being carried out in biennial contract.
(b)Deputy Chief Engineer (Bridges) -
(i) No proper inspection/audit has been
conducted before the repairs carried out under
biennial contracts.
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(c) Executive Engineer (Bridges) :
(i)Lack of proper documentation of the repairs
works carried out and non-maintenance of
important records.
(ii) No drawing prepared for the replacement of
structural steel members replaced/repaired
through the repair words carried out 2013-14.
(d) Assistant Engineer (Bridges) -
(i) No drawing prepared for the replacement of
structural steel members replaced/repaired
through the repair works carried out 2013-14.
(ii) No proper inspection carried out before the
repairs of FOB was undertaken in 2013-14.
(iii) Lack of proper documentation of the
repairs work carried out and non-maintenance of
important records.
(iv) Improper supervision of the work of repairs
carried out by Contractor, M/s. RPS Infra
Project Pvt. Ltd. Since prima-facie the work of
epoxy paint was not carried out as per
specifications/
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(e) Assistant Engineer (Bridges)-
(i) No drawing prepared for the replacement of
structural steel members replaced/repaired
through the repair work carried out in 2013-14.
SUPERVISION LAPSES QUA STRUCTURAL AUDIT OF FOB.
(a) Executive Engineer (Bridges)-
(i) The reports submitted by the auditors were
not scrutinised properly and accepted the
final report as per the auditors
recommendations. (emphasis supplied)
(ii) No reply/remarks are offered to Assistant
Commissioner, A-Ward regarding need of
structural repairs before carrying out the
refurbishment work by 'A' Ward.
(b) Assistant Engineer (Bridges) -
(i) The reports submitted by the auditors were
not scrutinized properly and accepted the
final reports as per auditor's recommendations
(emphasis supplied).
(ii) Periodic inspection of FOB nto done before
year 2016.
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(iii) No reply/remarks are offered to
Assistant Commissioner 'A' Ward regarding need
of any structural repairs before carrying out
the refurbishment work by 'A' Ward.
8. As against the structural auditors, it is
reported that :
(i) the Auditor has overlooked his own
observations to monitor next inspection
inrespect of corrosion of the members of truss 1
and truss 2, deck drainage and other defects as
per his report dated 26.12.2016. (emphasis
supplied)
(ii) the Auditor has failed to identify proper
locations for testing in concrete and
structural steel members of super structure of
FOB in spite of his observations in his report
dated 26.12.2016 that corrosion in super
structure needs monitoring in next inspection
and critical parts of super structure.
(emphasis supplied)
(iii) Auditor has overlooked the remarks of
testing agency M/s. Geo Dynamics to compare the
original drawings for knowing reduction in
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thickness/strengthening of structure as
required and without any analysis submitted
final report stating that FOB is in good
condition. (emphasis supplied)
(iv)Auditors did not take the Football
Vibration Test as provided under the contract.
(emphasis supplied)
9. The Chief Engineer (Vigilance) observed in
his report that, during the work of refurbishment
and painting of the FOB undertaken by Ward Office,
the existing flooring was removed and granite slab
flooring was provided. This has resulted in
additional dead load on FOB.
10. The Chief Engineer, (Vigilance) opined,
prima-facie, it appears that the collapse of FOB was
triggered by the failure of supporting joints of the
floor beams with truss 1 and truss 2 which comprises
of welded joints of floor beams and truss due to
weakening/corrosion of welds. He reported and
observed that the FOB was originally constructed in
the year 1992 to cater the pedestrian traffic
crossing the D.N. Road and alighting on adjoining
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Platform No.1. Thereafter, in 2014, the bridge was
connected to all the 18 platforms of outgoing
trains, thereby probable increase in the live load
on the FOB. Report suggests, in the circumstances,
it will be necessary to analyse the effect of human
induced forces that may cause the dynamic loading
(moving live load) and it needs to be analysed by
experts.
11. As such, Chief Engineer (Vigilance) cited
these factors might have contributed to some degree
to the collapse of the FOB; however opined, the
exact reason of collapse can be ascertained only
after studying the design criteria and effects of
change in loading dynamic due to reasons stated
above by an expert and scientific study/testing of
collapsed materials is carried out.
12. The report of the Civil Engineer
(Vigilance) attributes lapses in the supervision by
its employees, Chief Engineer (Bridges), Deputy
Engineer-PWD, Executive Chief Engineer (Bridges),
Assistant Engineer (Bridges) and negligence on the
part of Auditor-Prof. D.D. Desai's Associated Engg.
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Consultant and Analyst Pvt. Ltd. The report also
suggests and indicates the refurbishment and the
painting work undertaken by Ward Officer in
January, 2017 with replacement of the granite slab
flooring has resulted in additional dead load on
FOB. Thus, in his opinion, live load on the FOB and
the dead load on the FOB due to refurbishment might
have contributed to some degree to the collapse of
the FOB. (emphasis supplied)
13. Before adverting to the arguments
canvassed by the Counsel for the respective
applicants, it may be stated that in March 2016,
M.C.G.M. decided to carry out detailed
investigation and condition survey of bridges which
are observed to be critical/poor during visual
inspection with an aim to ascertaining the
structural capacity and functioning of the various
components of bridges and suggesting measures for
rectification to ensure continued functioning of
the bridge and its durability and/or advise as to
whether any of the bridges are beyond repairs. E-
Tender notice was issued on 14th March, 2016 wherein
scope of work was outlined in two parts; Part-I
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relates to Inventory of Bridges, where the
tenderers can inspect all the bridges and prepare
the record for each bridge and report general
assessment of structure viz; (i) good condition;
(ii)bad condition which require minor repairs; and
(iii) worst condition requiring structural audit.
. Part-II of the scope of work includes, the
Consultants shall propose methodology and
specifications of repairs to M.C.G.M. before final
evaluation and ensure that high quality
rehabilitation is achieved.
14. On 26.12.2016 Consultant-M/s. D.D.
Desai's Associated Engineering Consultants &
Analysts Pvt. Ltd. submitted inventory details and
structural audit report of the Times of India Foot
Over Bridge to the Chief Engineer (Bridges) and
sought approval for the Non-Destructive Test.
15. On 2nd July, 2018 the Consultant
submitted summary of inventory of bridges and
reported, Footover Bridge (FOB) requires minor
repairs and opined, condition of the bridge was
good. In August 2018, M.C.G.M. certified and issued
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a Credential Certificate to consultant and
certified, successful completion of the subject
project.
16. It may be stated that M/s. Geo
Dynamics was engaged by consultants to conduct
Ultrasonic Pulse Velocity (UPV) Test, Rebound
Hammer Test, Carbonation Tests, of concrete surface
on FOB at project site, measure thickness of steel
members and Dye Penetration Test. M/s. Geo
Dynamics submitted its report to consultant on
12.07.2017 and reported total sixteen points were
tested on FOB with UPV testing by direct and
indirect method and presented the result. UPV
testing classified concrete quality as 'good'. The
tests revealed carbonisation, upto 30 m.m. was
evident and opined this was likely due to exposure
of concrete to weather. Sofar as, thickness
measurement of steel members of FOB is concerned,
M/. Geo Dynamics reported thus :
"The thickness of members were measured as per
location marked in Table-2" but suggested
necessary comparison may be done by consultant
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with original drawing for knowing reduction in
thickness / further action of repair /
strengthening of structure as required."
(emphasis supplied)
17. The report of M/s. Geo Dynamics was
forwarded to the M.C.G.M. by the consultants and
thereafter in July-August, 2018 a Credential
Certificate was issued by the M.C.G.M. certifying
successful completion of the subject project.
However, it appears, the consultant did not carry
out exercise of comparing thickness/measurement of
steel members. Mr. Salvi, learned Counsel for the
Consultants, submits this exercise could not be
done since original drawing of FOB was not made
available to. The learned APP for the State, on
instructions, does not dispute this fact. Thus,
though M/s. Geo Dynamics suggested to compare the
thickness of the steel members as found, with the
original drawings, but it could not be done for want
of details of the original drawings. Mr. Salvi
submits, the result of the test relating, to
thickness measurement of steel members was brought
to the notice of the MCGM in July 2017; on 6th August,
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2018 final report was submitted to the Chief
Engineer (Bridges) and soon thereafter credential
certificate was issued to the Consultant by the
Corporation as aforesaid.
18. It may be stated that the prosecution
sought a report from Veermata Jijabai Technological
Institute (VJTI) of the material collected from the
collapse of Himalay Bridge. Samples were collected
from available debris and the test was performed in
the Laboratory on 12.04.2019. The experts examined
two steel plates and three steel rods taken from the
wreckage and suggested the later to tencile test and
reported thus :
"Pitting of steel, loss of material and reduction
in thickness due to heavy corrosion has been
observed. The variation in the thickness due to
corrosion has been measured and observed to vary
from minimum 2.8 mm to maximum 10.0 mm.
Considering presently 10 mm as original thickness
of plate (due to absence of actual data), there is
significant reduction in effective cross-section
area of the structural member leading to decrease
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in load carrying capacity of the FOB." (emphasis
supplied)
. It may be stated that the Structural
Engineer of VJTI has assumed thickness of plate as
10 mm, in absence of original drawing. In view of
this fact, Mr. Salvi, learned Counsel for the
consultant was right in submission that, the
consultant could not undertake the exercise of
comparing the thickness measurement of steel
members as found with the original drawings. The
question is, who is to be blamed for not making the
original drawings available for comparison as
suggested by M/s. Geo Dynamics, not only to
consultants but even to VJTI. It is not clarified by
the prosecution, whether drawing of FOB was
available when the tenders were invited and if were
not available, how tenders were invited, awarded
and how credential certificate was issued ? Next
question is, whether, Corporation has taken efforts
to trace it ? And whether Corporation has fixed up
the liability on the concerned staff member of
Design Department ? Further, Corporation could not
make the drawing available from the Company which
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constructed this FOB ? It is surprising to note
original FOB drawing was not made available even to
VJTI, who on assumption, opined reduction of
thickness of cross-section, caused collapse of
bridge.
19. In the backdrop of the aforesaid facts, the
arguments of the applicants are to be appreciated.
20. Mr. Gupte, learned Senior Counsel
appearing for the applicants (employees' of the
Corporation) submitted, the facts of the case and
evidence does not admit commission of offence under
Section 304(II) of the Indian Penal Code. It is
submitted, doing an act with the intent to kill a
person or knowledge or that doing of an act was
likely to cause a person's death are ingredients of
offence of "culpable homicide", which are
completely absent in the case in hand. Submission
is, when intent or knowledge is the direct
motivating force of the act complained of,
provisions of Section 299 of the Indian Penal Code
are attracted. Mr. Gupte submitted, material in the
chargesheet, does not suggest, acts/omissions
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complained of, were with intention or knowledge.
Submission is, report of Chief Engineer (Vigilance)
attributes gross negligence and failure of
employees to exercise reasonable and proper care,
and precaution to guard against the injury either to
public or individual amounts to negligence and not
offence of "culpable homicide not amounting to
murder". Mr. Gupte, has relied on Affidavit of the
Investigating Officer, Mr. Yadav, who then stated
in para-27, thus;
" 27. I say that the Accused
Neeraj Dilip Kumar Desai inspected the
aforesaid bridge visibly and gave his
opinion that the said bridge is "good"
even though the same was not good. I
say that the accused Shital Prasad Ori
Ram Kori was holding the position as
Chief Engineer at the time when the
Inventory Structural Audit and
repairing of the said bridge was going
on and the accused Anil Ramkrishna
Patil was holding the position as
Executive Engineer at the time when the
Inventory Structural Audit and
repairing of the said bridge and both
of them failed to perform their duties
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in diligent manner." (emphasis
supplied)
. Mr. Gupte, therefore submitted, even
the State alleges 'negligence' and 'dereliction of
duties' and not 'culpable homicide'.
21. Mr. Gupte, has relied on paras-20, 21
and 22 of the judgment of the Hon'ble Apex Court in
the case of Keshub Mahindra Versus. State of M.P.
1996 SCC (Cri) 1124 to submit that the material
which prosecution relied upon, does not suggest
that the officers of the Corporation with knowledge
omitted to undertake repair/strengthening of
structure after M/s. Geo Dynamics had pointed out
reduction of thickness of members at some locations
of FOB. Submission is, in view of the report of M/s.
Geo Dynamics, it was imperative duty of the
applicants to exercise reasonable and proper care
having regard to circumstances and their duties.
It is therefore submitted, the facts of the case and
the evidence may attract penal provisions of
Section 304A of the Indian Penal Code and not
Section 304-II of the Indian Penal Code. Mr. Gupte,
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submitted offence under Section 304-A is bailable
and punishment is imprisonment for a term which may
extend to two years or with fine or both. It is
further submitted that, investigation is over. The
trial may not commence in the near future. The
applicants are permanent residents of the State and
their presence can be secured for trial, by imposing
appropriate conditions.
22. Mr. D.N. Salvi, learned Counsel appearing
for the consultants in Bail Application No. 2699 of
2019 would submit that, M/s. Geo Dynamics
classified and reported concrete quality of FOB as
'good' and though suggested, comparison may be done,
for ascertaining reduction in thickness of members,
it could not be done for want of original drawing of
FOB. Mr. Salvi, next submitted that M/s. Geo
Dynamics carried out, Non-Destructive Test (NDT) at
few locations only, it was not technically viable,
to conduct the NDT on all locations of FOB. He
submitted live load on FOB and its refurbishment by
replacing granite slab floor were factors, equally
contributed to collapse of the bridge, as suggested
in the report of the Commissioner (Vigilance). Mr.
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Salvi, adopted other arguments of Mr. Gupte, to
contend the facts/allegations do not make out
offence of culpable homicide. He further submitted,
facts may hold applicants for "negligence" and not
even for "culpable or gross negligence", in as much
as the consultants had carried out NDT at possible
locations and such test could not have been carried
out at all locations of FOB. He submits, negligence
alleged is outcome of "error of judgment".
23. Mr. Nakhawa, learned APP has relied on the
statement of Mr. Ravi Kiran Vaidya of M/s. Geo
Dynamics. He submitted that, once M/s. Geo Dynamics
had pointed out reduction in the steel members of
the FOB, applicants ought to have taken the steps to
repair or strengthen the FOB. He therefore submits,
'omission' coupled with knowledge when resulted
into incidence, the offence "culpable homicide not
amounting to murder" is made out and it is not a
sheer negligence as contended.
24. Doing an act with an intent to kill a person
or knowledge that doing of an act was likely to
cause a person's death, are ingredients of an
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offence of "culpable homicide". It is trite law
that Section 304-II comes into play when death is
caused by doing an act with knowledge that it is
likely to cause death, but there is no intention on
the part of the accused either to cause death or to
cause such bodily injury as is likely to cause
death. Evidence on record and report of the Chief
Engineer (Vigilance) suggests "lapses" in
discharge of the duties by the applicants.
Vigilance report points out, (i)no proper
inspection audit has been conducted before the
repairs carried out; (ii)lack of proper
documentation of the repairs carried out and non-
maintenance of important records; (iv)improper
supervision of work of repairs carried out by
Contractor, M/s. RPS Infra Project Pvt. Ltd. ;
(iv)reports submitted by the auditors were not
scrutinized properly; (v)periodic inspection of
FOB was not done before the year 2016; and (vi)no
drawings prepared or replacement of structural
steel members though repaired was carried out in
2013-14 and Auditor has overlooked the remark of
testing Agency.
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25. As such, prima-facie material on record,
does not suggest that the applicants has had
knowledge that alleged act of omission to verify the
thickness of members of steel of FOB with original
drawings and omission to take remedial measures
would cause collapse of bridge. It may be stated,
the consultants submitted final report in July-
August, 2018 to the Corporation and soon thereafter
Credential Certificate was issued certifying
completion of project. Evidence, shows consultant
could not verify thickness of member of FOB, for
want of drawing. Officers of the Corporation took
no pains to make the drawing available to consultant
either before or after Non-Destructive Test.
However, officers of the Corporation and
consultant, both overlooked, M/s. Geo Dynamic's
report, wherein reduction in thickness of members
of FOB was reported. Had Corporation's Officer
submitted drawings of FOB to consultant, exercise
to measure thickness of members of FOB with drawing
and further action to strengthen the bridge,
possibly could have avoided the mishap. However, it
is only after the incidence, on 12th April, 2019,
Chief Engineer (Bridges) sought to obtain some
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documents relating to design of FOB and copies of
plan from M/s. STUP Consultants Private Limited; a
entity which had designed the subject FOB. It may be
stated, the officers of the Corporation chose to
remain passive and did not forward the drawing to
VJTI. As to why, the applicants, opted to be passive
and turned nelsons' eye to the suggestion of M/s. Geo
Dynamics, are the moot questions. However, fact
remains, "culpable negligence" by itself cannot be
substituted with "knowledge" an ingredient of
Section 299 Clause (c) of the IPC.
26. Prima-facie, facts of the case do not
suggest commission of an offence under Section
304(II) of the Indian Penal Code. In this case, the
investigation is over. Applicants are in custody
since March, 2019. All applicants are permanent
residents of Mumbai and their presence can be
secured by imposing conditions. Applicants are
therefore directed to be released.
ORDER
(i) The Bail Applications are allowed.
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(iii) The applicants shall not leave the Country, without first obtaining permission of the learned trial Court.
(iv) The applicants shall report to the Investigating Officer as and when called.
(v) The applicants shall furnish the particulars of their latest place residence and mobile contact number and/or change of residence or mobile details, if any, to the Investigating Officer of the Police Station concerned within a week from their release.
(vi) The applicants shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case.
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26. With the aforesaid, the Bail Applications stand disposed off.
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