IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 3493 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 -------------------------------------------------------------- MANUBHAI VADILAL PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PR NANAVATI for Petitioner Mr. AD Oza PP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 22/05/2001 ORAL JUDGEMENT Heard Mr.P.R. Nanavaty, learned 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 :- According to the petitioner, who has been arrested in connection with the FIR being CR No. 40 of 2001 lodged before the Naranpura Police Station 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. The petitioner is engaged in the business of construction and is one of the directors of M/s. Somnath Real Estate Private Ltd. which is a company duly registered under the Indian Companies Act, 1956. According to the petitioner, under the aegis of the said Company, the petitioner constructed several residential as well as commercial complexes in the city of Ahmedabad in the last ten years. According to the petitioner, one of the buildings Shivalaya was constructed by the company of the petitioner in the year 1994 and one block out of two blocks collapsed due to the earthquake which hit the city of Ahmedabad on 26.1.2001 and due to the collapse of one block of the said building, one old lady lost her life. Therefore, one Naresh Chimanlal Oza lodged an FIR against the petitioner and other Director of the petitioner company namely Mr. Tushar M. Patel who is the son of the petitioner for the offence punishable under section 304, and 120B of the IP Code. According to the petitioner, the allegations made in the FIR are false and false to the knowledge of the complainant. According to the petitioner, without prejudice to their rights and also without prejudice to the merits of the matter, the petitioner is ready and willing to undertake before this Court to provide rehabilitation to the family of the members who have been affected due to the collapse of the block of the building and he is ready and willing to reconstruct the building which has collapsed and to hand over back to the members free of cost. In fact, one of the blocks of Shivalaya which has remained unaffected by the earthquake and and in the report of the CEPT, said building in the Shivalaya Part II has been placed under "G", Repairable category which itself shows that the entire story created in the FIR is bogus and the building which has collapsed is nothing but an Act of God which is beyond the control of the petitioner and is not because of the alleged use of sub standard material in the construction of the building. The petitioner is ready and willing to abide by the terms and conditions that may be imposed by this court while releasing him on bail, including undertaking to this court to rebuild the collapsed block and to hand over the same to the members at free of cost. The petitioner has also pointed out that the petitioner is ready and willing to pay an amount of Rs.75,000.00 (Rupees seventy five thousand only) to the heirs and legal representatives of the deceased Jayaben Parshottambhai Joshi who died in the said incident. According to the petitioner, after he was arrested, the petitioner immediately filed an application for grant of bail by filing criminal misc. application no. 482 of 2001 before the learned Additional Sessions Judge, Court No. 28, Ahmedabad. However, same has been rejected by the court concerned vide order dated 16.3.2001 and, thereafter, the petitioner has not approached this court and it was prior to the pre chargesheet stage. According to the petitioner, after filing of the chargesheet against the petitioner, the petitioner once again approached the court of learned sessions judge concerned by filing criminal misc. application no. 850 of 2001 which came to be rejected on the ground that during the pendency of the investigation and after filing of the chargesheet, no change of circumstances has been pointed out and the filing of the chargesheet cannot be considered as change of circumstance and has, therefore, rejected the said application on 3.5.2001. Learned advocate Mr. Nanavaty has submitted that the another co accused Tushar M. Patel has filed anticipatory bail application before this court being criminal misc. application no. 1861 of 2001 and the same has been withdrawn by him on 22nd May, 2001. He has submitted that the said petitioner Tushar M. Patel is the son of the petitioner herein. According to the petitioner, he is prepared to file undertaking before this court. Such draft undertaking has been placed before this COurt which reads as under: " I, Manubhai Vadilal Patel, the petitioner accused, do file this undertaking as follows : 1. That the damaged building Shivalaya Apartment was constructed during my Chairmanship of the Gopinath Members Association under whose aegis Shivalaya Apartment was built. The same was built under my supervision and guidance. That,as regards the damaged building, I undertake to reconstruct and restore all the flat owners by reconstructing the flats at my own costs. However, if the flat owner or owners choose and desire to pay to me any amount by way of construction cost received from the Government and or any agency by him or them, it will be open to me to accept the same, but I will not compel in any way to make any such construction by resorting to litigation or in any other manner. I further undertake to complete the construction by the end of June, 2001 and put the respective flat owners in actual possession of their respective flats. If I fail in any way to deliver possession of the reconstructed flat to the respective owner or owners by the end of June of 2003. I will pay compensation at the rate of Rs.5,000.00 per month to each of such flat owners as rent towards the flat. However, if any flat owner chooses not to have reconstructed flat, I will pay such flat owner the price thereof paid by him. 2. I further undertake to pay Rs.75000.00 to the legal heirs of the deceased ______________ within two months of the date of my being released from jail. " #. Learned advocate Mr. Nanavaty 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 10.5.2001 and it was made returnable on 18.5.2001 and thereafter the matter has been adjourned by this Court and has been taken up for hearing today. The respondent State has filed reply against the present petition which is taken on record. In this 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 herein 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 8,9,10 and 11 of the reply to the effect that since it is a clear case of section 304, 120B, 418, 465, 468 and 469 of the Indian Penal Code as well as for the alleged breach of the provisions of the Gujarat Flat Owners Act,1973. From the investigation carried out by me, it appears that there is a criminal conspiracy between the petitioner builder and other officers of either AUDA or Municipal Corporation in passing plans, giving sanction and giving go by to the relevant permissions and provisions and thereby giving green signal to the petitioner for carrying construction without applying the provisions necessary and thereby allowing the members to stay in the building putting their lives at stake and therefore looking to all these things, it is a clear case of criminal conspiracy and, therefore also, the petitioner is prime accused of entire episode and therefore the bail application is not required to be entertained. The deponent has also contended that the collapse of the building was because of sub standard material and tehreby death of one Jayaben Parshottamdas Joshi clearly attracts the ingredients of sec.304 and 120B and other sections as stated hereinabove as petitioner being a builder and he was well awre and had sufficient knowledge that if the building is collapsed, the lives of several families residing in the said building will not be safe and if the building is collapsed there would be death of members who are residing in the apartment and accidently that has happened because of the collapse of the building wherein one Jayaben lost her life for no fault on her part and therefore the ingredients of sec.304 and 120B are fully attracted and made out against the petitioner and,therefore, bail should not be granted in favour of the petitioner herein. That the samples of construction material have been sent to laboratory of GERL and report of the laboratory is still awaited. It has also been contended that the petitioner is a builder by profession and he and his son are the main accused in the whole episode and from the investigation also it appears that the amounts towards the flats have also been collected by the present petitioner and his son and affairs has been managed by them jointly and, therefore, they are directly involved in the acts and/or omission in the construction of the flats in question and this is the direct act which has resulted into deathof one Jayaben and because of collapse of the building and,therefore clear case is made out against the petitioner. It is also contended that the over head water tank was not constructed as per the approved plan i.e. as per the plan water tank capacity was shown 10000 Ltrs. while it was constructed 17000 Ltd. approximately. It is also allegled that because the construction was not as per the plan sanctionedand sub standard material was used. It is also contended that even after the earthquake, twopillars on the ground floor parking were found not proper and, therefore, additional supports were required to be given. All these flats reveal that construction and the material used was not upto the mark and, therefore, even before the earthquake, these pillars were found not safe and, therefore, it has been submittied that the petitioner is not entitled for being released on bail and, therefore, the application should be rejected. Learned PP Mr. Oza has also submittied that considering the charges levelled agtainst the petitioner for the offence under section 304 of the IPC, the petitioenr is involved in a serious offence and,therefore, the application is required to be rejected. He has also submitted that looking to the peculiar facts and circumstances of the case,the petitioner has come forward to file undertaking before this court and, therefore, he has requested that the reasons should not be assigned as according to him, it would come in the way of the prosecution while opposing the bail application filed by the other similarly situated builders. #. I have considered the averments made in the present application and also considering the statement of Mr.Nanavaty, 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.