Case: NITINCHANDRA SOMNATH RAVAL Vs. THE STATE OF GUJARAT &amp; ORS

The Chief Judicial Metropolitan Magistrate (hereinafter referred to as "the Trial Court") which is seized of the case in CC No. 853 of 2001 had accepted the application of respondent no. 2 herein for dropping the charge under Section 304 of the Indian Penal Code, 1860 (IPC). This application was filed at the time of framing of the charge when respondent no. 2 filed the application of the aforesaid nature contending that no charge under Section 304 IPC was made out. The Trial Court accepted the said plea and dropped the charge under Section 304 IPC. The High Court has, as noted above, upheld the aforesaid order vide impugned judgment dated 10.02.2017. In the order dated 22.02.2017 a typographical error, which has crept in the earlier order dated 10.02.2017, has been corrected by recording that the correct date of order passed by the Trial Court was 15.02.2006 and not 15.02.20163. To state in brief a building was constructed in the city of Ahmedabad known as "Gairatpur Bhagyalaxmi Co-operative Housing Society" (hereinafter referred to as "the Society"). Four towers were constructed. 160 flats among ten storied having 16 flats per floor (i.e. 4 flats per floor per tower) with total built up area permissible 646.78 sq. mtrs. for 16 flats per floor i.e. 41 sq. mtrs. per flat were constructed. Shikhar Tower among four towers collapsed. As per respondent no. 3/Mr. Nandlal Jaigopal Agrawal, he was the owner of the land and had given the land for construction of residential apartments to the Society. Respondent No. 2, against whom charge under Section 304 has been dropped in these proceedings, is stated to be the builder of the said Society. Though Mr. Maninder Singh, learned senior counsel appearing for respondent no. 2 disputes this and submits that as per the agreement for construction which was entered into between the parties respondent no.2 was only a supervisor. Be that as it may, the fact remains that the said tower was constructed, sold and came to be occupied by various persons4. Unfortunately, on 26.01.2001 earthquake hit Gujarat which engulfed the city of Ahmedabad as well. Insofar as Ahemdabad is concerned, it was at the Richter scale 7.7. It is a matter of common knowledge that this earthquake caused immense damage to the various properties in the State of Gujarat in which many lives were also lost. As above said, out of the four towers which were constructed, one tower collapsed, as a result whereof 98 innocent persons lost their lives. The appellant was also a sufferer as his two adult sons, daughter-in-law and grandson, who were in the building at that time, also died. As per the appellant he survived as he was not in the building at that time5. Mr. F.A. Gohil, Senior Police Inspector, Satellite Police Station, Ahemdabad City inspected the site and on the basis of his inspection he lodged the complaint dated 06.02.2001. The complaint was registered as First Information Report (FIR). In the said FIR/complaint respondent nos. 2, 3 as well as Architect/Engineer, Chairman of Gairatpur Bhagylaxmi Society were arrayed as accused persons. This FIR/complaint was registered under Sections 304, 420, 120(b)(1) of the IPC and for violation of Sections 3(2), (C) (D), 7(1), (I) (II) of Gujarat Ownership Flats Act. The investigation was thereafter carried out and chargesheet dated 02.05.2001 was submitted to the Sessions Court under the aforesaid provisions6. As pointed out above, when the matter came up for framing of the charge, respondent no. 2 moved an application to the effect that no charge under Section 304 IPC, on the facts and circumstances of this case, was made out. This application was accepted by the Trial Court thereby dropping the charge under Section 304 IPC and the said order has been upheld by the High Court.

Reasoning:
We may note at this stage that there were some other buildings in the city of Ahmedabad which suffered collapse and similar cases were filed against the builders/Architects/owners of the said buildings as well. In some of these cases, question had arisen as to whether the provisions of Section 304 IPC are attracted or not and the matter had travelled up to the High Court. The High Court had, in all those cases, held that the case under Section 304 IPC was not made out and as a result thereof charge under Section 304 IPC was not framed in those cases8. In the instant case while passing the impugned order, the High Court has taken note of those decisions9. We have considered the aforesaid arguments with reference to the record of this case. As it is clear from the above, the appellant wants charge of Section 304 IPC be also framed against respondent no. 2. In the first instance, it needs a mention that no such charge was framed against respondent no.3 as his discharge application of similar nature was allowed by the Trial Court on 02.11.2007. That order was challenged but upheld by the High Court as well as by this Court. It becomes very relevant and material fact that non-framing of charge under Section 304 IPC against co-accused had attained finality and even on examination of the case independently we are of the view that the case under Section 304 IPC is not made out10. This provision prescribes punishment culpable homicide not amounting to murder. For this purpose, it has to be established that the act done by the accused 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 in the alternative, it is done with the knowledge 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. In the second part punishment prescribed is lesser than the first partAdmittedly, the appellant does not seek to bring the case in the first part. His contention is that knowledge can be attributed to the accused persons that the construction in question which was sub-standard in nature is likely to cause death when earthquake of this magnitude occurs as that would result in the collapse of the building. It is difficult to accept this contentionIn the first place, as noted above, earthquake at the Richter scale of 7.7 had hit the city of Ahmedabad. This was of a very high intensity. Not only this the earthquake engulfed almost the entire State of Gujarat which was a severe calamity. Secondly, out of four towers erected by the accused persons only one tower had collapsed. Thirdly, it is not only this tower of the building in question but almost 12 such buildings collapsed in Ahemdabad. In all other cases, no charge under Section 304 has been framed, as noted above12. In view of the aforesaid categorical pronouncements, it is difficult to accept the submissions of the appellant that charge under Section 304 is made out. We can understand the anguish and agony of the appellant who lost his family members because of the unfortunate catastrophe. But when it comes to culpability, the accused can be tried only for such offence which can be made out in law. We may like to record that the Trial Court has framed charge under Section 304A IPC. Thus, insofar as allegation of negligence is concerned, there is already a charge on the ground whether the said charge is proved or not would depend upon the evidence that will be produced at the time of trial. Insofar as the framing of charges is concerned, as we note that the relevant provision under which the charge could be framed namely, Section 304A has already been framed, There is no reason to interfere with the impugned order of the High Court refusing to frame the charge under Section 304 IPC.