IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 3538 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 : YES 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 -------------------------------------------------------------- RASHMINBHAI MAFATBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: M/S THAKKAR ASSOC. for Petitioner Mr. A.D. Oza, PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 21/05/2001 ORAL JUDGEMENT Heard Mr.K.B.Anandjiwala, learned counsel for M/s. Thakkar Associates 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 :- The petitioner is the original accused in connection with the FIR registered as CR No. - 60 of 2001 with Satelite Police Station for the offences punishable under section 3(2)(c)(d), 7(1)(i)(ii) (2) of the Gujarat Owners Flat Act, 1973, inter alia alleging that the petitioner, alongwith the others, has committed the offence as alleged in the said FIR. According to the petitioner, the father of the petitioner is holding Flat No. B/11 in this Scheme. The mother of the petitioner is also holding flat in the said scheme. The maternal uncle of the petitioner is also holding the flat in this scheme. The counsin brother of the petitioner Rajeshbhai P. Patel is also holding the flat in the said scheme. Similarly, brother in law of the petitioner Arvindbhai S. Patel is holding the flat in the said scheme. According to the petitioner, in all, six members are the family members of the petitioner in the said scheme. According to the petitioner, two members are the near and dear of the petitioner and four flats in the scheme are vacant and no person is living there and only two members are the out siders are holding the flat in the said scheme. According to the petitioner, the petitioner is not the Chairman of the society and has also not issued any share certificate to any members of the scheme. The petitioner is a member in the society holding Flat No. B/32 in Sarva Darshan Flats. That there are in all 12 members in the entire scheme. Amongst these 12 members, six members are the family members and two are the friends of the petitioner. The petitioner is engaged in the business of production of chemicals and is having factory in the name of M/s. RPG Chemicals having its office at Samarth Buiulding, Vijay Cross Roads and is having the factory at GIDC Estate, Ankleshwar. The petitioner's company is producing inter mediates dies and selling it in the market.The petitioner is also having agricultural lands and other immovable properties. According to the petitioner, he is not at all connected with the construction activities. That there was formation of Natvar Shyam Coop.Housing Society Ltd. and one Bal Kishan M. Chavda is the Chairman of the society and one Mansukhbhai Chunibhai Shah is the Secretary of the said society. The petitioner is neither the Chairman nor Builder of the society and has not participated in any manner in the development of the society. The petitioner has entered as a member of the said society in the year 1997 and according to the petitioner, members of the said society have never raised any complaint against the petitioner but the FIR has been filed by the PI, Satelite Police Station, Ahmedabad. In the petition, the petitioner has made clear averments that the petitioner is ready and willing to complete the construction work of the flats and the members who are willing to continue in the said scheme will be allotted the flats as per the original booking price and no extra amount will be charged and they will be put in possession within 24 months. The petitioner has further pointed out in the petition that the petitioner at his own motion, the petitioner is ready and willing to pay sum of Rs.75,000.00 to the heirs and legal representatives of the deceased Gautam Kaushik Trivedi and Ashitben K.Trivedi. According to the petitioner, he is ready and willing to reconstruct the flats within 24 months or to refund the amount as per the choice of the members. The petitioner is ready to invite this obligation without prejudice to his right to defend himself on all available grounds. The petitioner has relied upon two orders passed by this court in criminal misc. application no. 1677 of 2001 and 1678 of 2001. The petitioner is also prepared to file draft undertaking before this court in respect of the reconstruction of the flats without taking any extra amount within 24 months and is also prepared to pay Rs.75,000.00 to the heirs and legal representatives of the deceased. In this matter, notice was issued by this court on 10.5.2001 and it was made returnable on 18.5.2001. The respondent State has not filed any reply to the present petition. In the present petitioner has undertaken to reconstruct and restore all the damaged flats by filing undertaking to construct by himself at his entire cost. Draft of such undertaking has been submitted which reads as under: "I, Rashminbhai Mafatbhai Patel, the petitioner accused do file this undertaking as follows : 1. That the collapsed building Sarva Darshan Apartment was constructed during my Chairmanship of Natvarshyam Coop.Housing society Ltd. under whose aegis Sarva Darshan Apartment was built. The same was built under my supervision and guidance. That as regards the damages building, I undertake to reconstruct and restore all the flat owners by reconstructing the flats at my own costs. I will not compel in any way to make such construction by resorting the litigation or in any other manner. I further undertake to complete the construction by the end of June, 2003 and put the respective owners in actual possession of their respective flats. If I fail in any way to deliver the possession of the reconstructed flat to the respective owner or owners by the end of June, 2003, I will pay compensation at the rate of Rs.5,000.00 p.m. to each of such flat owners as rent towards the flat. However, if any flat owner chooses not to have the reconstructed flat, I will pay such flat owner the price thereof paid by him. 2. I further undertake to pay Rs.75,000.00 to the legal heirs of the deceased Shri Gautambhai Kaushikbhai Trivedi and Ashitben Kaushikbhai Trivedi within two weeks of the date of my being released from jail. " 2. Learned advocate Mr. Anandjiwala has prepared the draft undertaking and copy thereof has been given to the learned PP Shri Oza. However, Mr. Oza, learned PP has verified the statements made by the present petitioner in the draft undertaking. In the present petition, this Court has issued notice on 10.5.2001 by making it returnable on 18th May, 2001 and thereafter the matter has been adjourned by this Court and was taken up for hearing today. The respondent State has not filed any reply to the present petition. In the present petition, though no reply has been filed by the State, the learned Public Prosecutor Mr.A.D.Oza has vehemently opposed the present bail application filed by the present petitioner on the ground that during the course of investigation, it has also been found that the construction itself is illegal and and the same has been carried out without taking permission from the competent authority. Learned PP Mr. Oza has submitted that the petitioner was knowing the above illegal construction which was the main reason for collapse of the building in question. It is further contended that there are other multi storeyed buildings standing nearby have not collapsed and are standing and it clearly shows that the building which has been utilized in the construction was substandard and poor quality material. 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.K.B.Anandjiwala, 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 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 also after considering the draft undertaking which has been suggested by the learned advocate Mr.K.B.Anandjiwala, 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. 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 is pending in a crucial stage. The third objection that F.S.L. Report is awaited and prima facie looking to preliminary report of FSL, the material which has been used by the builder is of poor quality and no standard material used by the builder and construction is not in accordance with Rules and Bye-laws of the Municipal Corporation. Looking to the objections of Learned P.P. this Court can examine the merits of the case and to pass appropriate order, but the real worry is that, it will come in way of the State Government in respect of pending other similar matters, which are more than 70 in numbers pending before this Court before the concerned Sessions Courts. This Court has passed similar order after considering the similar undertaking in Criminal Misc. Application Nos. 1677/2001 order dated 18-4-2001, Criminal Misc. Application No.2158 / 2001