Case: NITINCHANDRA SOMNATH RAVAL Vs. THE STATE OF GUJARAT & ORS

1. Leave granted. 2. This appeal is filed by the appellant against the order dated 10.02.2017, as modified vide order dated 22.02.2017, whereby application of the appellant under Article 227 of the Constitution of India challenging the legality and validity of order dated 15.02.2016 passed by the Chief Judicial Metropolitan Magistrate, Ahemdabad (Rural), Mirzapur has been dismissed. The Chief Judicial Metropolitan Magistrate (hereinafter referred to as "the Trial Court") which is seized of the case in CC No. 853 of 2001 had accepted the application of respondent no. 2 herein for dropping the charge under Section 304 of the Indian Penal Code, 1860 (IPC). This application was filed at the time of framing of the charge when respondent no. 2 filed the application of the aforesaid nature contending that no charge under Section 304 IPC was made out. The Trial Court accepted the said plea and dropped the charge under Section 304 IPC. The High Court has, as noted above, upheld the aforesaid order vide impugned judgment dated 10.02.2017. In the order dated 22.02.2017 a typographical error, which has crept in the earlier order dated 10.02.2017, has been corrected by recording that the correct date of order passed by the Trial Court was 15.02.2006 and not 15.02.2016. 3. To state in brief a building was constructed in the city of Ahmedabad known as "Gairatpur Bhagyalaxmi Co-operative Housing Society" (hereinafter referred to as "the Society"). Four towers were constructed. 160 flats among ten storied having 16 flats per floor (i.e. 4 flats per floor per tower) with total built up area permissible 646.78 sq. mtrs. for 16 flats per floor i.e. 41 sq. mtrs. per flat were constructed. Shikhar Tower among four towers collapsed. As per respondent no. 3/Mr. Nandlal Jaigopal Agrawal, he was the owner of the land and had given the land for construction of residential apartments to the Society. Respondent No. 2, against whom charge under Section 304 has been dropped in these proceedings, is stated to be the builder of the said Society. Though Mr. Maninder Singh, learned senior counsel appearing for respondent no. 2 disputes this and submits that as per the agreement for construction which was entered into between the parties respondent no.2 was only a supervisor. Be that as it may, the fact remains that the said tower was constructed, sold and came to be occupied by various persons. 4. Unfortunately, on 26.01.2001 earthquake hit Gujarat which engulfed the city of Ahmedabad as well. Insofar as Ahemdabad is concerned, it was at the Richter scale 7.7. It is a matter of common knowledge that this earthquake caused immense damage to the various properties in the State of Gujarat in which many lives were also lost. As above said, out of the four towers which were constructed, one tower collapsed, as a result whereof 98 innocent persons lost their lives. The appellant was also a sufferer as his two adult sons, daughter-in-law and grandson, who were in the building at that time, also died. As per the appellant he survived as he was not in the building at that time. 5. Mr. F.A. Gohil, Senior Police Inspector, Satellite Police Station, Ahemdabad City inspected the site and on the basis of his inspection he lodged the complaint dated 06.02.2001. The complaint was registered as First Information Report (FIR). In the said FIR/complaint respondent nos. 2, 3 as well as Architect/Engineer, Chairman of Gairatpur Bhagylaxmi Society were arrayed as accused persons. This FIR/complaint was registered under Sections 304, 420, 120(b)(1) of the IPC and for violation of Sections 3(2), (C) (D), 7(1), (I) (II) of Gujarat Ownership Flats Act. The investigation was thereafter carried out and chargesheet dated 02.05.2001 was submitted to the Sessions Court under the aforesaid provisions. 6. As pointed out above, when the matter came up for framing of the charge, respondent no. 2 moved an application to the effect that no charge under Section 304 IPC, on the facts and circumstances of this case, was made out. This application was accepted by the Trial Court thereby dropping the charge under Section 304 IPC and the said order has been upheld by the High Court. 7. The appellant who appears in-person argues that a case under Section 304 IPC has clearly been made out. It is submitted that the primary reason for collapse of the building was sub-standard construction of the building. It is also submitted that as per National Building Code Ahmedabad is classified as main seismic zone and according to him keeping in mind this fact, the Architect and the Builders should have taken due care in constructing the said building and had that been done withstanding the earthquake the building would not have collapsed. We may note at this stage that there were some other buildings in the city of Ahmedabad which suffered collapse and similar cases were filed against the builders/Architects/owners of the said buildings as well. In some of these cases, question had arisen as to whether the provisions of Section 304 IPC are attracted or not and the matter had travelled up to the High Court. The High Court had, in all those cases, held that the case under Section 304 IPC was not made out and as a result thereof charge under Section 304 IPC was not framed in those cases. 8. In the instant case while passing the impugned order, the High Court has taken note of those decisions. The appellant, however, has made an endeavour to wriggle out the said decisions with the submission that the orders in those cases were passed under different factual facts. It is also submitted that the High Court was primarily influenced by the fact that the builders/accused persons have sold the flats to their family members as well as family friends and if there was any such intention or knowledge in that eventuality they would not have sold the flats to their own kith and kin. He also submitted that the High Court committed certain errors by not going through the standards that were laid down by the Ahmedabad Municipal Corporation and in fact the learned counsel for the State who argued the matter did not bring to the notice of the High Court all the relevant facts inasmuch as the only argument which was made was that the accused persons in those cases were responsible for collapse of the buildings on the ground that there was a poor quality of construction and variation made in design which resulted in the collapse of the buildings. According to him when the case was not argued by highlighting that the construction was sub-standard to the knowledge of the accused persons and, therefore, that in the event of such earthquake there was a possibility of collapse of the buildings and which was within the knowledge of such persons who were Architects, Engineers, Builders etc., he High Court had no occasion to take note of such arguments which were not even advanced. 9. We have considered the aforesaid arguments with reference to the record of this case. As it is clear from the above, the appellant wants charge of Section 304 IPC be also framed against respondent no. 2. In the first instance, it needs a mention that no such charge was framed against respondent no.3 as his discharge application of similar nature was allowed by the Trial Court on 02.11.2007. That order was challenged but upheld by the High Court as well as by this Court. It becomes very relevant and material fact that non-framing of charge under Section 304 IPC against co-accused had attained finality and even on examination of the case independently we are of the view that the case under Section 304 IPC is not made out. The provision of Section 304 reads as under: "Section 304: Punishment for culpable homicide not amounting to murder-Whoever commits culpable homicide not amounting to murder shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 10. This provision prescribes punishment culpable homicide not amounting to murder. For this purpose, it has to be established that the act done by the accused by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or in the alternative, it is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. In the second part punishment prescribed is lesser than the first part. Admittedly, the appellant does not seek to bring the case in the first part. His contention is that knowledge can be attributed to the accused persons that the construction in question which was sub-standard in nature is likely to cause death when earthquake of this magnitude occurs as that would result in the collapse of the building. It is difficult to accept this contention. In the first place, as noted above, earthquake at the Richter scale of 7.7 had hit the city of Ahmedabad. This was of a very high intensity. Not only this the earthquake engulfed almost the entire State of Gujarat which was a severe calamity. Secondly, out of four towers erected by the accused persons only one tower had collapsed. Thirdly, it is not only this tower of the building in question but almost 12 such buildings collapsed in Ahemdabad. In all other cases, no charge under Section 304 has been framed, as noted above. In the judgment rendered by the High Court in other cases, the High Court had discussed the law relating to Section 304 Part II IPC in detail and has also taken note of the judgment of this Court in "Keshub Mahinder v. State of M.P. (1996) 6 SCC 129 , (which is also popularly known as Bhopal Gas Tragedy case). The following observations from the said judgment are reproduced: "19. The learned Senior Counsel for the appellant-accused on the other had submitted that even if taking the material available on record at the stage on its face value the short question is whether any charge could have been framed against the accused under Section 304 Part-II IPC with our without the aid of Section 35 IPC and even for that matter any charges could have been framed under Sections 326, 324 or 429 with or without the aid of Section 35 IPC. We may at once state that both the learned Sessions Judge as well as the High Court have taken the view on the aforesaid material that a prima facie case has been made out by the prosecution requiring the accused to face the aforesaid charges and the trial of the accused on these charges can not be cut short or nipped in the bud in the light of the aforesaid material which has to be accepted as prima facie true and reliable at this preliminary stage of framing of charges. 20. It, therefore, becomes necessary for us now to address ourselves on this moot question. As noted earlier the main charge framed against all the accused is under Section 304 Part II IPC. So far as Accused 2,3, 4 and 12 are concerned, they are also charged with offences under Sections 326, 324 IPC and 429 IPC read with Section 35 IPC while Accused 5 to 9 are charged substantially with these offences also. We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as likely to cause death the charged offences would fall under Section 304 Part II. However, before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part in the interest of justice would get out of the picture. In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide. It lays downs that :- "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trial court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the Plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that ere act of running a Plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective Plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in Tank No. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings. In fairness to the prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently, in our view taking the entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the Plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned under Section 304 Part II IPC on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the Plant on that night ultimately resulted in deaths of a number of human beings and cattle. It is also pertinent to note that when the complaint was originally filed suo motu by the police authorities at Bhopal and the criminal case was registered at the Police Station Hanumanganj, Bhopal as Case No. 1104 of 1984 it was registered under Section 304-A of the IPC. We will come to that provision a little later. Suffice it to say at this stage that on the entire material produced by the prosecution in support of the charge it could not be said even prima facie that it made the accused liable to face the charge under Section 304 Part-II. In this connection we may refer to a decision of the Calcutta High Court to which our attention was drawn by the learned Senior Counsel, Shri Rajendra Singh for the appellants. In the case of Adam Ali Taluqdar v. King-Emperor a Division Bench of the Calcutta High Court made the following pertinent observations which interpreting Section 304 Part-II read with Section 34 IPC: "Although to constitute an offence under Section 304, Part 2, there must be no intention of causing death or such injury as the offender knew as likely to cause death, there must still be a common intention to do an action with the knowledge that it is likely to cause death though without the intention of causing death. Each of the assailants may know that the act, they are jointly doing, is one that is likely to cause death but have no intention to causing death, yet they may certainly have the common intention to do that act and therefore Section 34 can apply to a case under Section 304, Part 2." Once we reach the conclusion that the material produced by the prosecution before the trial court at the stage of framing of charges did not even prima facie connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part-II against the accused concerned on such material. Method of evaluation of quality of the material individually and jointly used is also likely to be brought under close scrutiny and has to be decided by experts and in such a situation how a person can be prosecuted for a serious offence punishable under section 304 of IPC, is the question posed. While appreciating this submission, observations made in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and Ors.(AIR 1990 SC 1962), needs consideration. It is observed therein that the Court while framing charge or dealing with an application preferred under section 227 of CrPC, 1973 can do some exercise to evaluate the material and documents available on record. The Apex Court, in the cited decision, after referring to the observations made in one earlier decision (AIR 1980 SC 52 ), has observed that:- From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. It has been rightly argued by ld. Counsel appearing for the petitioner/s that sample which was drawn was of a small portion of one column out of large number of columns. Similarly, the sample of beam which was drawn was of a small portion of one beam out of large number of beams. Even if the opinion of the expert is that these samples are of sub-standard, that can not lead to an inference that entire beam or all beams as well as entire column or all columns were of sub-standard. He has also rightly submitted that there is no evidence on record as to the cause of collapse of building. One more argument is advanced by ld. Counsel Mr. Raju can not be ignored by this Court viz. when the accused have been asked to face charge of a serious offence, before earthquake of 26.01.2001, the Ahmedabad Municipal Corporation had different standards in approving plans of construction and AMC being a local self government, has now changed the standards. But the day on which the apartment in question was erected, the construction was made as per the norms applied by the MC and, therefore only, the occupiers were permitted to use the building. Suppose for the sake of arguments it is accepted that construction was not as per the contract between the apartment holders and the developer/ contractor and breach of contract made by the developer was noticed by anybody including the occupiers who lost their lives, but that by itself can not be equated with the knowledge or intention within the meaning of Section 299 of IPC." 11. We would like to add that the aforesaid decision has been followed by this Court in "Sushil Ansal v. State through Central Bureau of Investigation", (2014) 6 SCC 173 and the relevant portion thereof is narrated below: "49.3 (III) Is there any basis for holding that the accused or any one of them was guilty of an offence of culpable homicide not amounting to murder punishable under Section 304 Part II of the IPC so as to justify a retrial of the accused persons for the said offence? 199. The decision in Alister Anthony Pereiras case (supra) or that delivered in Sanjeev Nandas case (supra) does not lay down any specific test for determining whether the accused had the knowledge that his act was likely to cause death. The decisions simply accept the proposition that drunken driving in an inebriated state, under the influence of alcohol would give rise to an inference that the person so driving had the knowledge that his act was likely to cause death. The fact situation in the case at hand is not comparable to a case of drunken driving in an inebriated state. The case at hand is more akin on facts to Keshub Mahindras case (supra) where this Court was dealing with the question whether a case under Section 304 part II was made out against the management of Union Carbide India Ltd., whose negligence had resulted in highly toxic MIC gas escaping from the plant at Bhopal. The trial Court in that case had framed a charge against the management of the company for commission of an offence under Section 304 Part II, IPC, which was upheld by the High Court in revision. This Court, however, set aside the order framing the charge under Section 304 Part II and directed that charges be framed under Section 304A, IPC instead. This Court observed:(Keshub Mahinder Case, SCC P 157 Para 20) "20...The entire material which the prosecution relied upon before the Trail Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in Tank No. 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to the prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned under Section 304 Part II, IPC on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the plant on that night ultimately resulted in deaths of a number of human beings and cattle..." (emphasis supplied)" 12. In view of the aforesaid categorical pronouncements, it is difficult to accept the submissions of the appellant that charge under Section 304 is made out. We can understand the anguish and agony of the appellant who lost his family members because of the unfortunate catastrophe. But when it comes to culpability, the accused can be tried only for such offence which can be made out in law. We may like to record that the Trial Court has framed charge under Section 304A IPC. Thus, insofar as allegation of negligence is concerned, there is already a charge on the ground whether the said charge is proved or not would depend upon the evidence that will be produced at the time of trial. Insofar as the framing of charges is concerned, as we note that the relevant provision under which the charge could be framed namely, Section 304A has already been framed, There is no reason to interfere with the impugned order of the High Court refusing to frame the charge under Section 304 IPC.

Decision:
0[ds]We may note at this stage that there were some other buildings in the city of Ahmedabad which suffered collapse and similar cases were filed against the builders/Architects/owners of the said buildings as well. In some of these cases, question had arisen as to whether the provisions of Section 304 IPC are attracted or not and the matter had travelled up to the High Court. The High Court had, in all those cases, held that the case under Section 304 IPC was not made out and as a result thereof charge under Section 304 IPC was not framed in those cases8. In the instant case while passing the impugned order, the High Court has taken note of those decisions9. We have considered the aforesaid arguments with reference to the record of this case. As it is clear from the above, the appellant wants charge of Section 304 IPC be also framed against respondent no. 2. In the first instance, it needs a mention that no such charge was framed against respondent no.3 as his discharge application of similar nature was allowed by the Trial Court on 02.11.2007. That order was challenged but upheld by the High Court as well as by this Court. It becomes very relevant and material fact that non-framing of charge under Section 304 IPC against co-accused had attained finality and even on examination of the case independently we are of the view that the case under Section 304 IPC is not made out10. This provision prescribes punishment culpable homicide not amounting to murder. For this purpose, it has to be established that the act done by the accused by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or in the alternative, it is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. In the second part punishment prescribed is lesser than the first partAdmittedly, the appellant does not seek to bring the case in the first part. His contention is that knowledge can be attributed to the accused persons that the construction in question which was sub-standard in nature is likely to cause death when earthquake of this magnitude occurs as that would result in the collapse of the building. It is difficult to accept this contentionIn the first place, as noted above, earthquake at the Richter scale of 7.7 had hit the city of Ahmedabad. This was of a very high intensity. Not only this the earthquake engulfed almost the entire State of Gujarat which was a severe calamity. Secondly, out of four towers erected by the accused persons only one tower had collapsed. Thirdly, it is not only this tower of the building in question but almost 12 such buildings collapsed in Ahemdabad. In all other cases, no charge under Section 304 has been framed, as noted above12. In view of the aforesaid categorical pronouncements, it is difficult to accept the submissions of the appellant that charge under Section 304 is made out. We can understand the anguish and agony of the appellant who lost his family members because of the unfortunate catastrophe. But when it comes to culpability, the accused can be tried only for such offence which can be made out in law. We may like to record that the Trial Court has framed charge under Section 304A IPC. Thus, insofar as allegation of negligence is concerned, there is already a charge on the ground whether the said charge is proved or not would depend upon the evidence that will be produced at the time of trial. Insofar as the framing of charges is concerned, as we note that the relevant provision under which the charge could be framed namely, Section 304A has already been framed, There is no reason to interfere with the impugned order of the High Court refusing to frame the charge under Section 304 IPC.