IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 3050 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 -------------------------------------------------------------- BABUBHAI TALJABHAI DESAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 3050 of 2001 M/S THAKKAR ASSOC. for Petitioner 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.P.M.Thakkar, learned senior advocate for the petitioner and Mr.A.D.Oza, learned Public Prosecutor 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 :- On 9-2-2001 at about 4.30 p.m informant Kiritbhai Vitthalbhai Lalluvaida lodged the FIR being C.R.No. I62 / 2001 with Navrangpura Police Station for the offence which took palce on 26-1-2001 at about 8.50 a.m. against the petitioner and other accused persons for the offences under Section 304, 120 B, 418, 420 of IPC and under Section 3(2)(c)(d), 7(1)(i)(ii) (2) of the Gujarat Owners Flat Act, 1973, wherein, the petitioner is accused as the Chairman of the Shan Co-Op Housing Society. It is stated in the FIR that on the land bearing City Final Plot No. 247, T.P.Scheme No.29 and City Survey No.274, two buildings are being constructed as Block A & B of `Rutvij Apartment' having in all 32 flats and has been registered on 28th April, 1995 in the name of Shaan Co-operative Housing Society Ltd. The coplainant had purchased one float in Block - B of the Rutvij Apartment in the year 1998 and for the same he has also taken loan of Rs.1.50 lacs from Satellite Road Branch of State Bank of Saurashtra. It is also alleged by the complainant in the complaint that B.U.Permission, share certificate, plans etc from the builder but according the petitioner, the same were very well supplied to the members. It is further alleged in the FIR that on 26th January, 2001 at about 8.50 a.m. the portion of the staircase of Blcok No.B was broken and pillars were sank in the earth upto first floor due to massive earthquake. Howerver, no damage is caused to Blcok - A which is adjacent to Blcok-B. It is the case of the prosecution that one Satiben, wife of Vijaykumar Nair and Mahendra Patel, Jay M. Makwana and wife of Bhogilal received injury on their persons in the the said incident. Satiben was thereafter taken to hospital and there she succumb ed to injuiris sustained by her. However, on behalf of the petitioner it is submitted that the petitioner is doing the business of selling milk and the petitioner is neither Structural Designer nor Architect nor Engineer nor builder. The petitioenr has nothing to do with the building activities. It is further submitted that the petitioner is not holding any degrees of civil engineering nor the petitioner has to do with construction activities and the petitioner has not participated in any manner in construction of the building. It is submitted that the petitioner is the Chairman of the society and the petitioner was simply rendering his honarary services only nor the petitioner has gained any benefit. It is further submitted that the petitioner is holding the Flat on the 4th Floor of the building involved in the FIR and he being the member of the society is elected as Chairman since incpetion of the Shan Co-Op Housing Society for the purpose of concluding the requisite formalities under the provisions of Co-Operative Societies Act. The petitioner has not participated in any manner with the construction activity. The petitioner further submitted that the `Shan Co-op Housing Society Ltd' is the registered co-operative society and the construction work was handed over to one M/s Kapadia Corporation which carried out construction of the building involved in the FIR in question. The petitioner had preferred Misc. Crim. Application No. 719 / 2001 in the Court of the Addl Sessions Judge, Ahmedabad which was rejected by the concerned Sesssions Judge on 17th April, 2001 qua the present petitioner and hence the present petition under Section 439 of CrPC 1973 on the ground that the petitioner is innoncent and he has not committed any crime as alleged against him. It is also submitted by the petitioner, all the necessary and relevant papers in respect of the building in question have been obtained the same were supplied to the complainant of the FIR. However, it is submitted by the petitioner that soon after this earthquake, on 31-1-2001 a meeting of members of the society was held and in the said meeting it was unanimously decided that at the same place the construction work is to be carried out and the members had also signed in that Minutes book of the Society. That the building Rutvij Apartment was constructed by me as per the Standard Specifications and as per the Rules and bye-law of Municipal Corporation. That as regards the damaged building, the petitioner being Chairman of `Shan Co-op Housing Socieity, undertake to reconstruct and restore all the damaged 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 and / 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 May, 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 May, 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.P.M.Thakkar, learned senior 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 the deceased Satthiben w/o Vijaykumar Nayar within three months of the date of release of the petitioner from jail. #. Learned senior advocate Mr.P.M.Thakkar 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 25th April, 2001 made it returnable on 1st May, 2001 and thereafter the matter has been adjourned by this Court on 3-5-2001, the respondent State has filed reply in Criminal Misc. Application No.3050 / 2001 which has been taken in account against the present petition. #. In the present petition, notice has been issued to the Respondent State by this Court and the respondent - State has filed reply which is taken on record. It is also necessary to note one fact that chargesheet has been submitted against the present petitioner - Babubhai Taljabhai Desai being chairman of the society on 7th May, 2001. The learned Public Prosecutor Mr.A.D.Oza has vehemently opposed the bail application filed by the present petitioner on the ground which has been raised in para-6 of the reply to the effect that during the course of investigation it also found that two pent houses were illegally constructed without taking the permission from the competent authority as well as the balcony of the flat which is shown in the plan of 4 ft. but actually the builder has constructed the said balcony of 6 ft. x 6 inches which is without any plan or permission from the competent authority and because of this extra construction on the building and because of the extra load on the whole building and because of the extra load on the whole building the building is collapsed. It is further contended in the reply that the petitioner was knowing the above illegal construction which was the main reason of the collapse of the building. It is further contended that there were other multistoried building still standing nearby which clearly shows that the building used by the builder is substandard and not upto the mark. Mr.Oza, learned PP has further submitted that FSL team consisting of Officer from FSL as well as NCB expert from Hyderabad visited the site on 21-2-2001 and have collected the samples of columns, beams, rods and steel and the same samples have been sent to the laboratory of National Council for Cement and Building Material, New Delhi. It is further submitted that the report from the said Laboratory is still awaited and the samples of soils was also sent for testing at Hyderabad and its report is still awaited. Mr.A.D.Oza, learned PP has also submitted that from the laboratory report from FSL against the present petitioner has been received, wherein the fact is established that there was poor construction which resulted into collapse of building. Mr.Oza, learned PP has also objected the undertaking which has been suggested by the petitioner and he also submitted that this petition has been filed by the petitioner is prior to filing of the chargesheet and therefore now the chargesheet is submitted against the present petitioner and therefore the petition is not maintainable. 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.P.M.Thakkar, learned senior advocate for the petitioner in respect of the draft undertaking so also considering the submissions made by both the learned senior advocate advocates for the respective parties without deciding the merits of the matter and considering the request of both the learned senior 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 larger interests of the public or the State, and similar other considerations, which arise when a court is asked for bail in a non bailable offence. It is true that under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non bailable offence", we are of the opinion that the above observations equally apply to a case under Section 439 of the new Code and the legal position is not different under the new Code." #. After considering the above observations as well as the averments made in the application and considering the draft undertaking which has been suggested by the learned senior advocate advocate Mr.P.M.Thakkar, it is a duty of the Court to see and protect the interest of the person who have become victim in such grave incident and simultaneously also to consider the fate of the persons who are behind the bar because of this incident. It is also necessary to keep in mind the fact that now the chargesheet has been submitted by the Investigating officer. #. I have considered the objections raised by the learned Public Prosecutor against the present petition. The main contention of Learned P.P. is on merits and second objection that investigation