IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATIONs No 4065 to 4068, 4070 to 4073 4114, 4117, 3225, 3237, 3641, 3642, 3650, 4407 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 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 @ MAYANK VINAYCHANDRA SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR Rajendra Singh with Mr SAURIN A SHAH for Petitioners Mr S N Shelat, Advocate General with Mr A D Oza PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 29/06/2001 C A V (COMMON) JUDGEMENT This group of petitions filed by different petitioners for enlargement on bail under section 439 of the Code of Criminal Procedure, 1973 (for short, 'Code'), for different offences said to have been committed by them. As per the say of the prosecution, the petitioners in all these petitions have committed offences punishable under sections 304, 418, 420, 120-B, 114 of IPC, section 48 of the Gujarat Ownership Flats Act, 1973 for the violation of certain provisions made therein. The facts are common and therefore, they may be briefly stated as follows: 2. The petitioners have constructed different buildings. They are all stated to be residential buildings having not more than four storeyed. The flats were allotted and sold to different allottees at relevant point of time. On 26.1.2001, the flats, constructed by these petitioners, collapsed and on account of the collapse of the flats, many persons staying therein sustained grievous hurts and many of them succumbed to the injuries. The case against the petitioners is that the petitioners are guilty of offence as aforesaid. The prosecution has mainly contended that the petitioners are the builders of the aforesaid buildings and charge-sheets have also been filed against them for the aforesaid offence showing that there is prima facie case that the petitioners have committed the aforesaid offence. It is also contended that looking to the gravity of the offences, the petitioners cannot be enlarged on bail. It is further contended that the petitioners were found absconding for some time and, therefore, they are likely to abscond if they are enlarged on bail. It is also contended that this is not a stage at which the petitioners should be enlarged on bail and it may be open to the petitioners to apply for their discharge if they feel that there is no case for framing charge against them as and when the charge is framed against them before the trial court. 3. As against this, the learned Advocates for the petitioners have contended that the flats have collapsed on account of the earthquake which took place on 26.1.2001. It is also their case that the petitioners are the builders and they had entrusted the work of building of flats to the contractor, that the Structural engineer, Civil Engineer and other persons were employed to see that the flats were constructed in order. It is also their contention that there was no defect in the design and there was no defect in the materials used. That therefore, no offence can be said to have committed by them. 4. As against this, the prosecution has alleged that the construction was not up to the standard. It is further alleged that in some cases, the cellar below the ground floor was constructed without any sanction and that was constructed without the use of cement concrete etc. It is further contended that the water tanks at the top of the buildings were installed contrary to the permission granted by the competent authority. That the permission granted was with respect to smaller size of water tanks against which these petitioners have placed water tanks of larger size which would show that the weight at the top had been increased. It is further alleged that some pent-houses were constructed at the top without the sanction of the competent authority and therefore, it also increased the weight at the top. It is further contended that the iron was not used in proper quantity. That the pillars were not constructed in required numbers and the materials used were not up to the standard and consequently, the entire construction was not up to the standard. It is, therefore, the case of the prosecution that the petitioners being the builders knew that on account of the above facts, the construction made was such that would fall or collapse at any point of time and it would result in death of the persons staying in or living around the said flats. That therefore, the petitioners have committed the offence as aforesaid and there is prima facie case against the petitioner. It is also the case of the prosecution that even the Forensic Science Laboratory has given preliminary report showing that iron was not used in proper quantity and the material used was sub-standard which was the cause for the collapse of the said buildings. In any case, the prosecution has alleged that the building collapsed on account of the aforesaid reasons and the petitioners knew that the flats were likely to collapse and the people staying therein were likely to suffer injuries likely to cause their death. It is, therefore, the say of the prosecution that the petitioners are guilty of offence punishable under section 304 of IPC on the aforesaid aspect of the case. 5. The arguments have been advanced at great extent on behalf of both the sides. Mr Rajendra Singh, learned Sr.Counsel appearing with Mr Saurin Shah, learned Advocate argued the matter at length on behalf of the petitioners. The arguments were also advanced by Mr Saurin Shah on behalf of the petitioners in support of the arguments advanced by Mr Singh. On the other hand, Mr S N Shelat, learned Advocate General appearing for the State argued the matter at length on behalf of the State. It is required to be considered here at the outset, as to whether the offence said to have been committed by the present petitioners can be one punishable under Part I of Section 304 of IPC or whether it can be an offence punishable under Part II of Section 304 of IPC. 6. Learned Advocate General has very fairly stated that no intention can be imputed or attributed to the petitioners and, therefore, only knowledge can be attributed to them and consequently, the offence which can be said to have been committed by the petitioners would be one punishable under section 304 Part II of the IPC and not Part I thereof. Therefore, we have to proceed with the footing that as per the case of the prosecution, the petitioners have committed offence punishable under Part II of Section 304 of IPC. Now it is very clear that so far the offence punishable under section 304 Part II of IPC is concerned, the provision has been made in the IPC which can be read as follows. Section 304 IPC "whoever commits culpable homicide nota amounting to murder, shall be punished with 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 10 years, or with fine, or with both, if the act is done with the knowldege 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." It is an admitted position that so far as the first part is concerned, the offence is made punishable with imprisonment for life or imprisonment for a term which may extend to 10 years and fine. Any way, the allegation of intention does not stand and, therefore, we go by 'knowledge' as stated in second Part of section 304 of IPC. As said above, this offence is made punishable with imprisonment which may extend to 10 years or with fine or both. 6. Learned Sr.Counsel Mr Rajendra Singh and Ld. Advocate Mr Saurin Shah appearing for the petitioner have argued the matter at length and they have contended that there is no question of imputation of knowledge with the petitioners and, therefore, there is no question of applicability of section 304 part I of IPC. In support of this contention, certain decisions have been referred to by the learned Advocates for the petitioners. Mr Saurin Shah also started arguing as to the causes of earthquake and the consequences thereof. I am of the opinion that it is not necessary for this court to enter into this area at this stage for the purpose of deciding these bail applications of the petitioners. I am also of the opinion that it is not very much necessary for this court even to consider as to whether or not the offence punishable under section 304 Part II of IPC exists, prima facie, against the petitioners. Let us assume that the petitioners are involved in an offence punishable under section 304 Part II of IPC. Let us also assume that there is prima facie case that the petitioners have committed the said offence. Let us also take it that there are grounds to proceed against the petitioner for the aforesaid offence. In that view of the matter, this matter would be in a shorter compass. As said above, the offence punishable under Part II of section 304 IPC is one not punishable with imprisonment for life but it is punishable with imprisonment which may extend to 10 years. It is important to note that with respect to this offence, jail sentence is not obligatory, mandatory or compulsory. Law itself makes ita clear that the court can impose jail sentence or fine or both. In other words a discretion has been given to the court as to what punishment should be imposed. The court has been given discretion to impose jail sentence. The court has also been given discretion to impose fine. The court has also been given discretion to impose both jail sentence as well as fine. However, the things are clear that this is an offence which is not punishable with imprisonment for life and it is also clear that it is not an offence wherein it is not compulsory for the court to award jail sentence, on conviction, to the accused persons. This would show the gravity of the offence which is said to have been committed by the present petitioners. 7. Here we may also turn to the provisions made in section 439 of the Code. The provision contained in section 439 of the Code has given special power to the High Court as well to the Sessions Court regarding bail. The said provision can be reproduced for ready reference as under: "439. Special powers of High Court ora Court of Sessions regarding bail - (1) A High Court ora Court of Sessions may direct - (a) that any person accused of an offence and in custody be released on bail, and if the offence if of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purpose mentioned in that sub-section, (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified Provided that the High Court or the court of sessions shall before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, through not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." A bare perusal of section 439 of the Code is very clear which says that Part II of section 304 of IPC will clearly find place in this provision made in section 439 of the Code. The reason is that it falls in a category of sub-section (3) of section 437 of the Code. In other words, the offence falling in sub-section (3) of section 437 of the Code can be considered by the High Court and Sessions Court in appropriate cases and discretion has been given to these two Courts for enlarging the accused persons, falling in section 439 of the Code, on bail. Therefore, this court has wider discretion to enlarge the accused persons on bail, even when such persons are alleged to have committed offence punishable with imprisonment which may extend to 7 years or more. The provision made in sub-section (3) of section 437 of the Code makes it clear that the Court may impose conditions in order to ensure that the accused persons shall attend in accordance with the condition of the bond executed under the Chapter or in order to ensure that such person shall not commit offence similar to the offence of which he is accused or of the commission of which he is suspected. Even other conditions can also be imposed. Therefore, it is a matter of discretion given to this court for enlargement of the accused person who were said to have committed offence punishable under Part II of section 304 of IPC. 8. Ld. Advocate General has relied upon a decision in the case of State v. Jaspal Singh Gill, reported in AIR 1984 SC 1503. There it has been laid down by the Apex Court that when the accused was charged for an offence under section 3 of the Official Secrets Act relating to military affairs and when it was alleged that the accused had obtained classified information on defence matters and had passed on the information to the U.S. Intelligence Operators and when the High Court enlarged the said accused on bail on the ground that the material collected by the prosecution was insufficient to sustain conviction, then in that event, the observation was that the finding that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain conviction was a premature decision recorded by the High Court. It is further observed that the accused should not have been enlarged on bail in the larger interest of the state. It is further observed that the gravity of the offence on which the accused was charged is quite obvious. That they relate to the security of the State and in such circumstances, the accused should not have been released on bail as per the observations made therein. The Supreme Court also observed that the current situation in the country is such that it may be easily exploited by unscrupulous men to their own or to some foreign power's advantage. In that view of the matter, the grant of bail by the High Court was not found favour by the Supreme Court. 9. Here the facts are different. It is not a matter involving the defence problem. This is no question of involvement of security of the state. Therefore, on facts, the allegations made in the case before us are quite different from those made in the case reported in AIR 1984 SC 1503 (supra). Therefore, it is not possible to compare the facts of that case with the facts of the case before us. This decision would, therefore, not apply here. 10. Learned Advocate General has also cited a decision of the Supreme Court in the case of State of Maharashtra v. Anand C Dighe, reported in AIR 1990 SC 625. In para 7 of the said decision, the observations are as follows: "There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. Where the offence is of serious nature the Court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable apprehension of witness being tampered with, the larger interest of the public or such other similar considerations." 11. It is to be seen that the offence involved in the said case was one punishable under section 302 of IPC also along with offence punishable under section 31 of TADA Act, 1987. It is very well known that offence punishable under section 302 of IPC is of a very serious nature which is punishable with death or imprisonment for life. It is to be seen that even the court has no discretion or jurisdiction to award punishment less than the imprisonment for life. That shows the gravity of that offence which cannot be put on par with the offences punishable under Part II of Section 304 of IPC when even the jail sentence is not compulsory. 12. Learned Advocate General also relied upon another decision in the case of State of Maharashtra v. Ritesh, reported in 2001 Cr.L.J. 1695. Para 2 of the said judgment would disclose that the offence involved in the said matter was one punishable under sections 302, 120B, 364, 397 etc. read with section 34 of IPC along with other offence. Even the observation of the Supreme Court is that the accused was charged for various offences including murder and conspiracy. There the High Court on referring to merits of the case, recorded a finding that there was no material on record to show that the accused was guilty of conspiracy in execution of which the deceased, once his beloved, was murdered. The Supreme Court found that the High Court did not afford opportunity to prosecution to lead evidence to establish existence of conspiracy despite observing that the case was based on circumstantial evidence and, therefore, the order granting bail to the accused was set aside by the Supreme Court. Again this is not a case of offence punishable with death or imprisonment for life like one punishable under section 302 of IPC. 13. In the case on hand, at the cost of repetition, it has to be stated that the offence punishable under section Part II of section 304 of IPC does not require even imposition of jail sentence. Therefore, there is difference of degree in the offences which are involved in the present case and in the offence involved in the aforesaid reported case. 14. It may also be stated here that the learned Advocates for the petitioners as well as the Learned Advocate General, both have referred to the provisions made in the National Building Code in order to support their rival cases. Learned Advocate General has also argued that there is apparent breach of provisions made in the National Building Code as was applicable at the relevant time. Since I have assumed that the petitioners have committed an offence punishable under Part II of section 304 of IPC, it is not necessary to deal with the said arguments of the learned Advocates for the parties with respect to the violation of the provisions made in the National Building Code. 15. Out of this group matters, certain cases were set apart and from the said files, it was indicated by the learned Advocate General that in Criminal Misc.Application No.4066/2001, the affidavit filed on record clearly discloses that 15 persons have died on account of the collapse of flats. That the overhead tank was larger in size than the size approved when the plan was sanctioned. That there were three pent-houses at the top of the flats. That the base was narrower than the upper part of the building. That there was cellar at the bottom which was not a part and parcel of the sanctioned plan. That though in the sanctioned plan approved by the AUDA it was found that only 1.2 metres wide cantilever (balcony) was allowed, the petitioner constructed 5.5 feet balcony by violating the bye-laws, which would increase the burden and size of the building at the top. It is also found from the affidavit filed on behalf of the State that the foundation of the cellar was in soil and not of cement concrete base. Even the depth of foundation was found less than what was required, which can also be found from the affidavit. On the aforesaid basis, an argument was advanced by the learned Advocate General that the building was very heavy at the top and it had weak foundation. That the petitioner knew the said aspect of the case and, therefore, they are guilty of offence punishable under section 304 of IPC. As said above, this aspect has been considered and that is why without going into the merit of the case, it has been assumed that the petitioners have, prima facie, committed offence punishable under offence under Part II of section 304 of IPC. It is again not necessary to go into detailed discussion of this argument of the learned Advocate General. 16. Learned Advocate General has also relied upon a decision of the Supreme Court in the case of State of Gujarat v. Haidarali Kalubhai, reported in AIR 1976 SC 1012. There the question arose was as to whether offence can be said to have been committed under section 304 A or whether it was an offence punishable under section 304 of IPC. The Supreme Court considered the facts of the said case and then observed that if a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death of some persons, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. As said above, since it is assumed that the petitioners have, prima facie, committed offence under Part II of section 304 of IPC again this decision does not require further discussion. 17. Learned Advocate General has also relied upon a decision in the case of Shamsher Khan v. State (NCT of Delhi), reported in 2001 SCC (Cri) 31. In reply to the reference of this judgment made by the learned Advocate General, it is argued by the learned Advocates for the petitioners that this decision will not hold good in the present case since the facts are different. As stated above, it would not be necessary to discuss even this decision. Reference was also made to a decision of Calcutta High Court in Re:Tushar Kanti Ghosh, reported in Cr.L.J. 1557. There the accused had applied for anticipatory bail under section 438 of the Code. The accused was a District Building Surveyor working with the Municipal Corporation. Partial occupation of a multi storeyed building was permitted on the basis of fitness certificate. The building was not according to the sanctioned plan but some deviations were made and the accused certified that the building was fit in all respects and was according to statute and statutory rules. The court found that the said act was not with an intention of causing death or bodily injury as is likely to cause death. That it could be presumed that the act was done with knowledge that