IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 3106 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- PATEL GIRISHBHAI RAVJIBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR JM PANCHAL for Petitioners MR AD OZA PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 10/05/2001 ORAL JUDGEMENT Heard Mr.J.M.Panchal, learned advocate for the petitioner and Mr.A.D.Oza, learned Public Prosecutor with Mr.N.D.Gohil, learned APP on behalf of the respondent State. "The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising the powers, the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum." [Extract : Vaish Degree College Vs. Laxminarayan reported in AIR 1976 SC page 888 ] "Law cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, rule of law must run akin to rule of life. And life of law is not logic but experience ..' While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction." [Extract : Municipal Board, Pratapgadh Vs. M.S.Chawla reported in AIR 1982 SC page 1493 ] "Article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal inquiry. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects; `Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest." [ Extract : Shivshankar Dal Mill Vs. State of Hyryana reported in AIR 1980 SC page 1037 ] Rule. Mr.A.D.Oza, learned Public Prosecutor waives service of Rule on behalf of the respondent State. #. The brief facts of the present petition are as under :- As per the complaint dated 31st January, 2001, the complainant is serving as Engineer Assistant at Doordarshan Kendra. It is alleged in the complaint that Flats in the name and style of `Sarva Darshan Apartments' were constructed on the plot of the land bearing Survey No.93/2 situated in the limits of village Thaltej by these builders, each flat was having super built-up area of 105 sq.yards and it was estimating at Rs.4 lacs. It is further alleged that when the complainant went to the builder to purchase the flat, the builder told him to make payment of Rs.3,05,000/- by cheque and Rs.95,000/each cash. It is also alleged in the complaint that the builder also separately demanded Rs.15,000/towards maintenace charges. It is also alleged in the complaint that the complainant purchased Flat No.12 of Nilkanth Association. It is also alleged in the complaint that Rs.3,05,000/- and Rs.95,000/- were paid. The amount of Rs.15,000/- towards maintenace charges was also paid. It is alleged in the complaint that one Mr.C.K.Daftari was the Engineer for the purpose of planning of the said Apartments. It is also alleged in the complaint that permission for constructing Aprtment was also obtained from the AUDA. It is further alleged in the complaint that after purchasing the flat, he was not given detailed plan and specifications regarding building / apartments, nor he was shown the same. It is also alleged in the complaint that Building Use Permission was also not obtained. It is also alleged in the complaint that builders have not built the said Apartments as per the plans, which were sanctioned by the AUDA. It is also alleged in the complaint that the members of the building have also not been supplied the revised plan of the building. It is also alleged in the complaint that 16 flats belong to Nilkanth Owners Association and 24 flats belong to Ghanshyam Owners Association in this Surbhi Apartments. It is alleged in the complaint that Nilkanth Owners Association also put up a big water tank on the terrace. It is also alleged in the complaint that water tank constructed was of bigger size than what was mentioned in the plan. It is also alleged in the complaint that building of Nilkantha Owners Association is constructed on hollow plinth level on the ground floor in which parking facility is there. It is also alleged in the complaint that the complainant was residing on the 2nd floor of Nilkanth Owners Association. It is alleged in the complaint that because of devasting earthquake on 26th January, 2001, the said building collapased, as one pillar broke down. It is also alleged in the complaint that big water tank also broke down. It is also alleged in the complaint that 2nd Block has also received many cracks and it is not fit for inhabitation. It is also alleged in the complaint that other falats and buldings situated in the adjoining area are intact. It is alleged in the complaint that with a knowledge or intention that by using sub standard materials, lives of many poersons may be put in danger, the builders have constructed the building without obtaining B.U.Permission and not as per the plans. Names of the victims who have died have also been narrated in the complaint. It is alleged that in all 24 persons have died in the collapsed of building. The applicants are in judicial custody since then. The present petitioner has filed application being Criminal Misc. Application No.163 of 2001 in the City Sessions Court at Ahmedabad for releasing him on bail and the said application has been rejected by concerned Court by judgment and order dated 29th March, 2001 and hence the order passed by the Additional Sessions Judge, Ahmedabad dated 29th March, 2001 is under challenge in the present petition by the petitioner under Section 439 of CrPC 1973 on the ground that the petitioner is completely innocent . That the petitioners are builders of Surbhi Apartments under the auspice of Ghanshyam Owners Association and Nilkanth Owners Association. Petitioner No.1 is also owner of Guru Hari Corporation. That, Surbhi Apartments is built-up by two Associations i.e. Ghanshyam Owners Association and Nilkanth Owners Association. Ghanshayam Owners Association has two buildings out of three and Nilkanth Owners Association has one building. Thus, Surbhi Apartments consists of in all three Blocks. The petitioners in the present petition have submitted that they are real brothers and are partners of a private limited concern named above. It is further submitted that the petitioners had purchased land and handed over the construction work to engineers and Architects. The petitioners also submitted that the construction work of Surbhi Apartments were constructed under the supervision of structural engineer namely one Mr. Chandrakant K. Daftari. It is further submitted that the earthquake is an act of Nature for which accused cannot be held responsible or liable and that too under Section 304 of IPC. It is further submitted on behalf of the petitioner that prima facie, the petitioners, who are not holding any degree and who are not doing any work as contractor / engineer or architect and who have no knowledge, cannot be held liable or reasonsible for the construction put up by the other persons. According to the petitioners, they are prepared even today to reconstruct the damaged building and damaged portion of the building at their own expense and restore the damaged flats to a condition in which the affected flat owners can occupy and stay in their flats with complete guarantee of safety and security. It is also submitted that the petitioner is prepared to carry out and abide by any conditions that may be imposed by this Court. #. Learned Advocate Mr.J.M.Panchal appearing on behalf of the petitioner has submitted that present petitioners are prepared to file undertaking before this Court to the effect that damaged building `Surabhi Apartments' will reconstruct by Ghansham Owners Asscoation and Nilkanth Owners Association. That as regards the damaged building Surbhi Apartments which was constructed by the petitioners who are builders of Surbhi Apartments under auspice of Ghanshyam Owners Assocation and Nilkanth Owners Association. The petitioner No.1 is also owner of Guru Hari Corporation. The petitioners undertake to reconstruct and restore all the damaged / collapsed flats by undertaking constructing myself at my entire cost. However, if the flat owner or owners choose and desire to pay to me any amount by way of contribution as may be received from the Government aid or any agency by him or them, it will be open to me accept the same but I will not compel in any way any of them to make any such contribution by resorting to litigation or in any other manner I further undertake to complete the construction by the end of June, 2003 and put the respective flat owners in actual possession of their respective flats. If I fail in any way to deliver possession of reconstructed flats to the respective owner or owners by the end of June, 2003, I will pay rent compensation at the rate of Rs.5000/- per month to each of such flat owner. If however any flat owner chooses not to have reconstructed flat, I will pay him the price thereof paid by him. Mr.J.M.Panchal, learned advocate appearing on behalf of the petitioner has also further submitted that the petitioner is ready to pay Rs.75,000/- to the legal heirs of twenty four deceased whose names are mentioned in complaint within period of 15 days from the date of his release from jail. #. Learned advocate Mr.J.M.Panchal has prepared draft undertaking and copy of the said draft undertaking has also been given to the learned PP Shri A.D.Oza. However, Mr.A.D.Oza, learned PP has verified the statement made by the present petitioner in the draft undertaking. #. In the present petition, this Court has issued notice on 26th April, 2001 made it returnable on 3rd May, 2001 and thereafter the matter has been adjourned by this Court on 4th May,2001. The respondent State has filed reply against the present petition which is taken on record. Reling on the affidavit filed, the learned Public Prosecutor Mr.A.D.Oza has vehemently opposed the bail application filed by the present petition on the ground which has been raised in para-5 to 7 of the reply to the effect that the samples of the building for deciding the facts whether the structure was faulty or not were taken and sent to NCB, Delhi for its analyses and the expert report of the samples is still not received by the Investigating Agency as well as the samples of the soil is also sent to Hyderabad for its testing and the soil test report is yet to be received. Mr.Oza, learned PP has further submitted that FSL team has visited on 7-2-2001 and following preliminary observations have been pointed out as under :- (1) The capacity of the water tank wat 25,000 ltrs. (2) that the tie-beam or plinth beam was not found in the foundation. (3) Rust were seen in colums steel rods. (4) that there were six rods in column of first floor and there were five joints at one point and because of the load on the rods the rods bent downwards. (5) there were smooth construction joints in column and beam actually there must be inter-locking. (6) the lift box was framed by briock work instead of RCC work. (7) there was over head tank on the terrace in the middle of two blocks which was collapased. (8) alluvium soil was found in the foundation of the building. Mr.Oza, learned PP has further pointed out that there are chances of petitioner's jumping the bail as looking to the seriousness of the offence and punishment provided under the law. Mr.Oza, has shown some apprehension that it would be difficult for the investigating agency to procure the presence of the accused during the investigating and at the time of trial and further pointed out that this Court may look into the fact and circumstances and also consider the fact that other builders are not yet arrested and not cooperating to prosecuting agency. It is also pointed out by him that this Court may also consider the aspect of impact on society as there is thousands of death and especially in the city of Ahmedabad approximately 750 person have died. Mr.Oza, learned PP has also submitted that considering the charges levelled under provisions of Section 304 of IPC, which itself indicate the offence is very serious in nature and the same requires consideration and therefore the present application deserves to be rejected accordingly. Mr.A.D.Oza, learned PP has also submitted that looking to the peculiar facts and circumstances of this case, the petitioner has come forward to file undertaking and this Court is considering the undertaking of the present petitioner. Therefore, Mr.Oza, learned PP has submitted that only on this ground, no reasoned order may be passed otherwise it will come into way of the respondent - State Government while opposing bail application filed by other similarly situated builders. #. I have considered the averments made in the present application and also considering the statement of Mr.J.M.Panchal, learned advocate for the petitioner in respect of the draft undertaking so also considering the submissions made by both the learned advocates for the respective parties without deciding the merits of the matter and considering the request of both the learned advocates for the parties who requested not to pass reasoned order and therefore considering the matter and before passing the final order, according to my opinion, some observations made by the Apex Court as well as Division Bench of this Court while dealing with such application which are pertinent to quote in relevance of the facts and circumstances of this case which are reproduced as under :- Recently, the Apex Court in case of GAYA PRASAD V. PRADEEP SRIVASTAVA reported in (2001) 2 SCC page 604, para-19 observed as under :- "The time is running out for doing something to solve the problem which has already grown into monstrous form. If a citizen is told that once you resort to legal procedure for realisation of your urgent need you have to wait and wait for 23 to 30 years, what else is it if not to inevitably encourage and force him to resort to extra-legal measures for realising the required reliefs. A Republic, governed by rule of law, cannot afford to compel its citizens to resort to such extra-legal means which are very often contra-legal means with counterproductive results on the maintenance of law and order in the Country." There is recent observation of the Apex Court in case of MAKAHN LAL BANGAL V. MANAS BHUNIA, reported in (2001) 2, SCC 652, para-26, "An alert Judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly negotiating on shorter routes avoiding prolixity and expeditiously attaining the destination of a just decision. The interest of the counsel for the parties in conducting the trial in such a way so as to gain success for their respective clients is understandable but the obligation of the Presiding Judge to hold the proceedings so as to achieve the dual objective search for truth and delivering justice expeditiously - cannot be subdued. However, sensitive the subject matter of trial may be; the courtroom is no place of play for passions, emotions and surcharged enthusiasm." Recent observation of the Apex Court in case of GOVERNMENT OF A.P. V. A.P. JAISWAL reported in (2001), 1 SCC 748, para-24 which runs as under : "Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect for the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice." There is recent observation of the Division Bench of this Court in case of PEOPLES UNION FOR C.L. VS. STATE [ Coram : D.M.Dharmadhikari, C.J. ] reported in 2001 (1) G.L.R., page 547 observed that; "A Judge on assuming office during his tenure sits cut-off from the society as he cannot continue to be in public life, but as he also comes from the society with his own experience of it, he is better stationed at a distance from the problems of the society to view them in a more objective, detached and dispassionate manner, than those involved in it, and for that reason, he is more suited to resolve conflicts and competing claims of the individual and the society. [ para 22 ]". The Apex Court in a decision rendered in case of JOGINDAR KUMAR VS. STATE OF UP reported in AIR 1994 S.C. page 1349, certain observations are quoted as under :- `No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Office in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do. The, there is the right to have some one informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984, in England. These rights are inherent in Arts. 21 and 22 (1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the Supreme Court issued the following requirements : (1) An arrested person being held in custody is entitled, if he so request to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained. (2) The police officer shall inform the arrested person when he is brought to the police station of this right. (3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Arts. 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals." 23. In India, Third Report of the National Police Commission at Pg-32 also suggested : "... An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :- (i) The case involves a grave offence like murder, dacoity, robbery , rape etc. , and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims. (ii) The accused is likely to abscond and evade the process of law. (iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ... " The Apex Court in case of GURCHARAN SINGH V. STATE [ DELHI ADMN. ] reported in AIR 1978 page 179 has in para-22 observed as under :- "In other non-bailable cases the court will exercise its judicial discretion in favour of granting bail subject to sub sec (3) of Section 437, Cr.P.C. , if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437 (1) Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence." The Apex Court in case of STATE VS. CAPTAIN JAGJIT SINGH reported in AIR 1962 SC 253 (Supra) has made observed as under :- `It (the High Court) should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the