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Learned Senior Advocate for the applicant has submitted that the present applicant was arrested in connection with the impugned FIR on 2nd October 2019 and since last 9 months, he is in judicial custody, as initially offence was registered under Sections 304, 308 and 114 of the Indian Penal Code. The applicant was working with Surat Municipality since last 34 years and is not connected with the crime in question. That, for the first time, he was allocated the portfolio of ascertaining the "Impact Fee" in the Town Planning Scheme No. 22, Varachha Zone on 04.04.2013, but prior thereto, applications along with the relevant documents were collected and scrutinized for regularization of unauthorized construction made thereon. That, the applicant was transferred to another department on 1st April 2015 ie., much prior to the grant of certificate of regularization, and therefore, he had nothing to do with regard to process of grant of COR, much less anything to do with the present incident. That, name of the present applicant was not shown in the FIR as an accused. That, he was Junior Engineer and his role was very limited to verification and measurement of illegal structure, which were to be legalized under the Gujarat Regulation of Unauthorized Development Act, 2011 (herein after referred to as "GRUDA"). That, as a part of his duty, applicant had visited the site on 16th May 2013 and had verified the application made for relevant building being "Takshshila Arcade" under GRUDA 2011 while taking into account photographs as well as tax bills, he had given a report stating that construction work had taken place at the relevant building during the year 2010­11. That, while making out site inspection on 16.05.2013 alongwith Mr. Anil Joshi, at that tine, applicant and co­accused persons had verified and scrutinized the applications and submitted a report for the purposing of issuing notice for the impact fee under GRUDA. That, there is no further participation of the applicant in the incident. It is not the case of the prosecution that fire had taken place at the third floor of "Takshshila Arcade" and applicant is failed to perform his duty as Junior Engineer whle verifying the application under the GRUDA. That, as per the specific case of the prosecution the fire was erupted on the second floor due to short­circuit in outer unit of one of the Air Conditioners. It is the case of the prosecution that the fire spread further and it travelled up to the third floor. That, as the staircase which was constructed from the third floor to fourth floor was made of wood, and therefore, it caught fire and resultantly, the people were struck on the fourth floor. That, entire case is based on the illegal construction of the fourth floor with which the applicant is not concerned and that was also never a part of the application made by the owner under the GRUDA, because 4th Floor was not in existence in the year 2013.

Learned Senior Advocate for the applicant has referred the statement of one of the witness Mr. Devesh Gohil and report submitted by the present applicant and argued that fourth floor was illegally constructed in or around October­ November 2016 i.e., much after the COR was granted, and therefore, applicant was not connected with illegal construction of the fourth floor, which is the real concern in the present case. It is further argued by learned Senior Advocate for the applicant that as per the prosecution case, the applicant is failed to inspect the site and prior to issuance of notice for determining the impact fee. That, the allegations are completely ill founded.

Learned advocate Mr. Ashish Dagli for the original victim has argued that fire was taken place near Sarthana Jakat Naka in the shopping centre called as " Takshashila Arcade" and the entire building is affected on account of the fire. That, on 4 th Floor, boys and girls were trapped and as a situation arose thereto to survive, they jumped from the 4th Floor and accordingly, about 22 students have lost their lives. That, the classes were running on the 4th Floor in which students were trapped and staircase connected to 3rd and 4th Floor was also burnt. That, on conclusion of the investigation, charge sheet was filed against the applicant and it was found during the course of investigation that the builder in connivance with the applicant initiated proceedings for regularization of the illegal construction and for which, documents to show that construction was made before cut off date ie., 20.03.2011, a bogus document, bills of one Navyug Enterprise was submitted which was later on found to be forged one. That, additional charge­sheet was filed under Section 465, 467, 468 and 471 of the Indian Penal Code. It is further submitted that during the course of investigation, it was found that though the construction of dome was made after cut off date but because of connivance with the applicant to take the benefit of the Gujarat Regulation of Unauthorized Development Act (benefit of impact fee), the applicant who had made an inspection in the file of a certificate of Navyug Enterprise that the work was over for 3rd Floor on 28.07.2010 and such certificate was given on 30.07.2010 by Navyug Enterprise, and in support thereof, bogus bills were attached. A report was submitted by the applicant in favour of the builder and acted in connivance with the builder. Learned advocate Mr. Dagli has also supported the arguments advanced by learned Public Prosecutor for the respondent­State and has relied upon the order of this Court passed in case of Mr. Munshi as well as order passed by Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 11530 of 2019 on 17.01.2020. It is further submitted that the complexity in the commission of offence is clearly established and also revealed that the request made by him found to be not tallying with the situation at the site. That, looking to the seriousness of the incident, gravity of offence overall impact upon the society where 22 innocent children/students have lost their lives and also 19 suffered injuries, it was argued that no discretion can be exercised in favour of the present applicant by enlarging him on bail.

Having heard learned advocates for the respective parties as well as learned Public Prosecutor for the respondent­State, perusing the papers produced on record, it appears that entire case of the prosecution has been divided into three different zones in terms of attributing the causes to the incident. First of all, the cause of the fire was a short circuit on the second floor, and therefore, the officers of the GEB were implicated. Due to the fire, many students from the fourth floor could not escape because of the illegal construction, and therefore, the officers concerned at the relevant point of time ie., during the period of regularization, are roped in. Secondly the fire officers, who did not ensure the fire safety in the said building even when directed by the higher officers. If we may consider the second zone, the applications made under the GRUDA­2011 were only for the ground floor, first floor, second floor and third floor. As per the case of the prosecution. "Dome" was not in existence before the cut­off date prescribed in the Act, and therefore, the applicant and other co­accused persons had committed the present offence. In fact, it appears that "Dome" was not in issue in the present case wherein the real issue is the illegal construction of the fourth floor, which was admittedly after the year 2015. In all 18 applications were received for regularization of the building in question ie. "Takshashila Arcade" from the owners alongwith necessary documents and photographs having stamp of concerned Architect. All the applicants had also attached the tax bills of the year 2012­13 showing the age of the property as 2 years. On 04.04.2013, the applicant was allotted the work of ascertaining the impact fee in Varachha Zone TP No. 22, which includes subject building. The applicant was serving as Junior Engineer, and therefore, appointed alongwith four other Assistant Engineers and by office order, the applicant was directed to undertake the work along with one Mr. Anil Joshi, which transpires from the document marked as Annexure­F and it also appears from the other documents marked as Annexure­G (Colly.). On 16.05.2013, the applicant along with Mr. Anil Joshi had carried out physical site inspection of the subject building and had identified the discrepancies which were recorded with the handwriting of the applicant on the map submitted by the owner. As a part of the procedure, the applicant was required to maintain the work diary of the task,which was undertaken by him, and accordingly, had recorded in his work diary along with Mr. Anil Joshi and by that way, site inspection of the building in question was carried out by both of them on 16 th May 2013. From the documents produced vide Annexure­H (Colly.), it appears that on 12th July 2013, a detailed report was submitted by the applicant about the site inspection carried out by him as well as Mr. Anil Joshi and had pointed out some discrepancies of the measurements in the building in question and this report was submitted by the applicant to the Executive Engineer. After considering the report submitted by the present applicant, the co­accused namely Parag Munshi, who was serving as an Executive Engineer, had issued notice for impact fee on finding the variations in the measurements to the concerned owners and necessary documents on this aspect are produced at Annexure­H (Colly.) Thereafter, it appears from the document being Annexure­I that on 1 st April 2015, by way of an office order, the portfolio of T.P. Scheme No. 22 (in which building in question was situated) was given to one Mr. V. K. Parmar, and thereafter, entire procedure of submitting a report for the purpose of issuing certificate of regularization was carried out by him and not by the applicant, as the applicant was transferred before the procedure in granting COR was carried out. It appears from the Annexure­J (Colly.) that on 14.07.2015, the certificate of regularization came to be issued by the co­accused ie. Jayesh Solanki with regard to the construction of third floor along with the Dome. The applicant was not connected with the process of the grant of the certificate of regularization. It appears from the document marked as Annexure­K that the Officers of the Varachha zone had visited the premises in question at the instruction of Commissioner of Surat Municipal Corporation and had found that the building was being used as per the certificate of regularization issued by the Corporation in the year 2015. It also appears that around October 2016, fourth floor was illegally constructed just before Demonetization and was put to use in the year 2017 and on the fourth floor, NATA classes were being run by the co­accused namely Bhargav Butani and all the students were stranded on the fourth floor at the time of incident and this fact was cleared from the statement of one witness Shailesh Dobariya and second witness Bharatbhai Paghdhar. The statements of both these witnesses suggest that 4th Floor was constructed after the certificate of regularization was granted. Thus, prima facie it appears that the applicant was not connected with the said illegal construction or granting certificate of regularization as well as 22 students who were stranded as there was only single entry and exit staircase made of wood. This unfortunate incident of fire was taken place on 24th May 2019 and FIR came to be registered with Sarthana Police Station for the offence punishable under Sections 304, 308 and 114 of the Indian Penal Code on 24 th May 2019. The applicant was summoned for the first time on 2nd July 2019, however, his name was not shown in the FIR. Charge­sheet came to be filed against the co­accused persons on 20th July 2019, wherein the name of the applicant was shown in the column no. 2 even when his anticipatory bail application was pending for consideration. It also appears from the record that this Court (Hon'ble Mr. Justice Vipul M. Pancholi, J.) was pleased to release the co­accused persons namely Sanjaykumar Laxminarayan Acharya, Dipakbhai Ishwarbhai Naik and Kirtikumar Jitubhai Mod on regular bail and copy of that order dated 3 rd December 2019 is annexed by the applicant as Annexure­N (Colly.).