Gujarat High Court
Himanshu Hasmukhlal Gajjar vs State Of Gujarat on 26 August, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/11012/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 11012 of 2020
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HIMANSHU HASMUKHLAL GAJJAR
Versus
STATE OF GUJARAT
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
PANKEET P AUNDHIYA(9421) for the Applicant(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH RONAK RAVAL, APP
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 26/08/2020
ORAL ORDER
1. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for the sake of convenience) for enlarging the applicant on regular bail in connection with FIR being FIR being C.R.No.I-246 of 2019 registered with Sarthana Police Station, Surat for the offence punishable under Sections 304, 308 and 114 of the Indian Penal Code.
2. Heard learned advocate Mr.Nandish Thackar for the applicant, learned Public Prosecutor Mr. Mitesh Amin for the respondent - State and learned advocate Mr. Ashish M. Dagli for the victims.
3. Learned advocate for the applicant submitted that the aforesaid FIR is filed by one Mr. Ayubbhai Adambhai Vadgama, Police SubInspector, Sarthana Police Station, Surat, wherein it is stated that Page 1 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020 R/CR.MA/11012/2020 ORDER when the complainant was on duty, he got the information from his superior officer to reach at the Shopping Center Takshasila Arcade, near Sarthana Jakatnaka where the fire took place. The complainant, therefore, reached at the place of incident with his police personnel and he noticed that one firefighter was also present at the place of incident. It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of the boys and girls started jumping from the building. At that time, complainant and other police personnel tried to stop them by shouting. It is further stated that the crowd gathered at the place of incident tried to save the boys and girls who jumped from the building. On the basis of the information given by the Surat City Police Controlroom, various firefighter vehicles reached at the place of incident. Thereafter, they tried to control the situation. It is further stated that after the control of fire by the firefighters, the complainant inquired at the place of incident. During the inquiry, it was revealed that illegal structure has been carried out by accused Harsulbhai Vakariya and Jignesh Savjibhai Pagdal. The said premises was given to one Mr. Bhargav Butani on rent. It is alleged that Bhargav Butani was running the classes. Because of the illegal structure on fourth floor of terrace of the building and since no fire safety equipments were installed and in absence of fire exit, the incident has taken place.
Page 2 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020R/CR.MA/11012/2020 ORDER 4. Learned advocate for the applicant further
submitted that the applicant was working as Deputy Engineer and his duty was to determine the impact fee as well as grant of certificate of regularization. It is further submitted that applicant is aged about 62 years and he is already retired from the services. He is suffering from serious heart ailments and has recently undergone bypass surgery and at present, is advised to take complete bed rest and is under constant medical care. He is also loosing vision in one eye and therefore he is advised to undergo an eye surgery at the earliest.
5. It is further submitted that as per the case of prosecution the case of concern was the illegal construction of fourth floor with which applicant has nothing to do with and in fact as per the record, the fourth floor was constructed in November 2016 and at the relevant point of time when the applicant issued the certificate of regularization in the year 2013, in fact fourth floor was not in existence. It is also submitted that applicant had issued the certificate of regularization relying upon the site visit carried out by the Junior Engineers including Jr. Engineer Mr. Atul Vinodkumar Gorsawala - co-accused. It is also submitted that thereafter the notices for impact fee were issued by the Executive Engineer and as the construction was required to be regularized as per the Rules, the certificate of regularization was issued by the applicant. It is submitted that when the co-accused - Atul Vinodkumar Gorsawala as well as Executive Engineer Page 3 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020 R/CR.MA/11012/2020 ORDER Mr.Parag Devendrabhai Munshi are enlarged on bail by this Court, the case of the applicant be considered.
6. Learned advocate for the applicant submitted that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.
7. On the other hand, learned Public Prosecutor Mr. Mitesh Amin has fairly submitted that since the co-accused - Atul Vinodkumar Gorsawala against whom almost similar type of allegations are levelled, is enlarged on bail by the Coordinate Bench of this Court, this Court may pass an appropriate order.
8. Learned advocate Mr. Ashish M. Dagli, though, has tried to oppose this application on merits by referring to the affidavit filed by the concerned victim, however, he is not in a position to dispute the fact that co-accused - Atul Vinodkumar Gorsawala against whom almost similar type of allegations are levelled is enlarged on bail. It is also submitted by learned advocate Mr. Dagli, after taking instructions, that if this Court is inclined to consider the case of the applicant on the ground of parity, he does not wish to invite detailed reasons.
9. Thus, the learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
10. Having heard the learned advocates for the parties and on perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role Page 4 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020 R/CR.MA/11012/2020 ORDER attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
11. This Court has considered following aspects,
(a) applicant is aged about 62 years. He is in jail since 13.12.2019;
(b) investigation is over and charge-sheet is filed;
(c) applicant is aged about 62 years and he is suffering from serious heart ailment. I have perused the medical papers which are placed on record. As contended, applicant is also loosing vision in one eye and he is also advised to undergo an eye surgery;
(d) co-accused - Atul Vinodkumar Gorsawala is enlarged on bail by the Coordinate Bench of this Court vide order dated 07.07.2020 passed in Criminal Misc. Application No.8148 of 2020. It is not in dispute that almost similar type of allegations are levelled against the said co-accused. Further, as contended by learned advocate for the applicant that on the basis of the site visit made by the Junior Engineers including co- accused Mr. Atul Vinodkumar Gorsawala, who is enlarged on bail, notices were issued by the co-accused - Executive Engineer Mr. Parag Munshi for impact fees. It has also come on record that fourth floor was constructed in November, 2016 and prior to that applicant has been retired on 31.07.2016. Thus, when the co-accused Atul Gorsawala is enlarged on Page 5 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020 R/CR.MA/11012/2020 ORDER bail by the Coordinate Bench of this Court and today, vide separate order, this Court has also considered the case of the co- accused - Parag Munshi, Executive Engineer, the case of the applicant is required to be considered on the ground of parity
(f) Since learned Public Prosecutor as well as learned advocate Mr. Dagli appearing for the victim have not invited detailed reasons, no more discussion is required.
12. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.
13. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.I-246 of 2019 registered with Sarthana Police Station, Surat on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the India without prior permission of the concerned trial court; [e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six Page 6 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020 R/CR.MA/11012/2020 ORDER months between 11:00 a.m. and 2:00 p.m.; [f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;
14. The authorities shall adhere to its own circular regarding Covid-19 and thereafter release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
15. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
16. Rule is made absolute to the aforesaid extent.
Direct service is permitted. Registry to communicate this order to the concerned Court/Authority through Fax or Email.
(VIPUL M. PANCHOLI, J) SRILATHA Page 7 of 7 Downloaded on : Fri Aug 28 23:47:29 IST 2020