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CR.MA/5876/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5876 of 2011
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MOHD.
MUNAF @ MUNAF BATA S/O ABDUL HAMID SHAIKH
Versus
STATE
OF GUJARAT
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Appearance :
MR
ND NANAVATI, SR ADVOCATE, ASSISTED BY MR UMESH A TRIVEDI for the
Applicant
MR L.R. DABHI, ADDL PUBLIC PROSECUTOR for the Respondent
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CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 17/06/2011
ORAL
ORDER
Rule.
Mr L.B. Dabhi, learned APP waives service of notice of Rule on
behalf of the respondent-State.
2 This
is an application for bail under Section 439 of the Code of Criminal
Procedure, 1978 in connection with offence registered at Kalupur
Police Station vide C.R.No.I-9 of 2007 for the offences punishable
under Sections 304, 338, 337, 427, 114 and 34 of the Indian Penal
Code read with under Section 267(1)(2) of the Bombay Provincial
Municipal Corporations Act, 1950.
3 The
case of the prosecution, in brief, can be summarised as under:-
4 Original
accused No.1 shown in the charge-sheet bought a property bearing City
Survey No.3605/P situated at Saudagar’s Pole, Kalupur between Galli
No.15 and 16 by way a registered sale deed and a Power of Attorney.
It is the case of the prosecution that after buying the said
property, the structure which was standing was demolished and he
floated a scheme of a residential apartment with ground floor plus
five floors in the name of Sidika Apartments. As per the plan, in
all 20 flats were to be constructed. It is the case of the
prosecution that original accused No.1 floated the said scheme taking
the accused applicant as one of the partners along with original
accused Nos.2 and 3. As per the case of the prosecution, original
accused No.4 shown in the charge-sheet was working partner and
original accused No.6 is the Structural Designer. It is the case
of the prosecution that before commencement of construction,
necessary plans as per the rules and regulations were not placed
before the Ahmedabad Municipal Corporation and without getting the
plans sanctioned as per the rules and regulations, all the accused
persons commenced with the work of construction of the said building.
It is also alleged that before commencement with the construction
no soil test was carried out to ascertain the capacity of the land to
hold the weight of the building. It is also alleged that the
materials like cement, steel, etc. which were used were of a very
inferior quality. It is the case of the prosecution that on account
of all these reasons the entire building, which was under
construction, collapsed on 28th January 2011 at about 7.45
AM in the morning. As a result of the collapse, five persons
residing in the vicinity got crushed under the debris of the building
and many others were rendered homeless due to extensive damage caused
to the adjoining houses. As per the case of the prosecution, damage
estimated to the tune of Rs.67,20,000 was caused due to collapse of
the building.
5 The
accused applicant was arrested on 13th February 2011 in
connection with this offence and subsequently was remanded to the
judicial custody. The accused-applicant preferred bail application
before the trial court, which came to be rejected vide order dated
13th April 2011. After rejection of the regular bail
application by the trial court, the accused-applicant preferred the
present application before this Court praying for bail.
6 I
have heard learned Senior Counsel, Mr N.D. Navavati appearing with
learned advocate, Mr Umesh Trivedi for the accused-applicant and
learned APP, Mr Dabhi appearing for the State.
7 Learned
counsel for the accused-applicant would submit that there is no
evidence to connect the accused-applicant herein with the alleged
crime. He would submit that there is no evidence to even prima facie
suggest that the accused-applicant herein was one of the partners in
the project and that he was visiting the construction site. It is
submitted that the investigation is over and the charge-sheet has
been filed for the offences punishable under Sections Sections 304,
338, 337, 427, 114 and 34 of the Indian Penal Code read with under
Section 267(1)(2) of the Bombay Provincial Municipal Corporations
Act.
8 The
main bone of contention put forward by the learned counsel is that
identically situated other co-accused have already been released on
bail. He invited my attention to two orders passed by the trial
Court releasing the co-accused on bail. Counsel also drew my
attention to the order passed by the learned Single Judge of this
Court releasing the original accused No.2, shown in the charge-sheet
who is alleged to be the main accused. Learned counsel made
available for my perusal order dated 17th June 2011 passed
by the learned Single Judge of this Court ordering release of
original accused No.2 on regular bail subject to certain terms and
conditions. Counsel, therefore, submitted that even on the ground of
parity the present applicant is entitled to regular bail pending
trial.
9 Per
contra, this application has been vehemently opposed by the learned
APP, Mr Dabhi. He submitted that the accused-applicant is one of
the partners of the partnership firm, which floated the project of
construction of residential apartment consisting of ground floor plus
five floors and knowing fully well that the plans have not been
sanctioned by the Corporation, soil test has not been carried out,
materials like cement and steel of good quality have not been used,
proceeded ahead with the construction of the building which collapsed
on the fateful day in the morning hours taking lives of five innocent
persons residing in the neighbourhood. He further submitted that as
on today there are so many persons who have been rendered homeless as
their respective houses have been damaged extensively due to collapse
of the building and all those persons are taking shelter in a nearby
municipal school even as on today. He, therefore, submitted that the
present application deserves to be rejected.
10 I
have given my anxious thoughts and considerations to the rival
contentions of both the sides and I have also taken into
consideration the entire case of the prosecution as reflected from
the papers of the charge-sheet.
11 Prima
facie, I am of the view that the learned APP is justified to a
certain extent in offering the resistance while opposing the present
bail application, taking into consideration the manner in which the
whole incident occurred and also taking into consideration the fact
that five innocent persons lost their lives and many more are
rendered homeless. However, on account of the fact that a
coordinate bench of this Court has thought fit to release original
accused No.2 on bail, then, in that case the present
accused-applicant would also be entitled for bail pending trial. I
am conscious of the fact that liberty is to be secured through
process of law, which is administered keeping in mind the interests
of the accused, the near and dear of the victims who lost their lives
and who feel helpless that there is no justice in the world as also
collective interest of the community so that parties do not lose
faith in the institution and indulge in private retribution. I have
perused the papers of the charge sheet. Prima facie, the allegations
against all the accused are at par. I also concede to the fact that
prima facie, there is nothing substantial on record to show that the
accused-applicant is a partner and is vicariously liable for the
offence alleged to have been committed.
12 Taking
into consideration the fact that the investigation is over and the
charge-sheet has been filed and further practically all other
co-accused have been ordered to be released on bail, the present
accused-applicant can also be ordered to be released on bail subject
to certain terms and conditions. In this view of the matter, the
accused-applicant is ordered to be enlarged on bail in connection
with C.R.No.I 9 of 2011 registered with Kalupur Police Station for
the offences punishable under Sections 304,
338, 337, 427 and 34 of the IPC as well as section 267(1)(2) of the
Bombay Provincial Municipal Corporation Act, on furnishing bond of
Rs.25,000/- (Rupees twenty five thousand only) with one surety of the
like amount to the satisfaction of the lower Court and on conditions
that the applicant shall :
[a] not take
undue advantage of liberty or abuse liberty;
[b] not act in
a manner injurious to the interest of the prosecution;
[c] maintain
law and order;
[d] mark
presence before the concerned Police Station on every 1st
and 15th day of English Calender month between 11.00 a.m.
and 2 p.m till commencement of the trial.
[e] not leave
the State of Gujarat without prior permission of the Sessions Judge
concerned;
[f] furnish the
address of residence at the time of execution of the bail bond and
shall not change the residence without prior permission of this
Court;
[g] surrender
passport, if any, to the Lower Court immediately;
[h] shall not
enter into Ahmedabad city for a period of 3 months except for the
purpose of attending the trial in the court of City Sessions Judge,
Bhadra, Ahmedabad and for marking his presence before the concerned
police station;
13 If
breach of any of the above conditions is committed, the Sessions
Judge concerned will be free to take appropriate action in the
matter.
14 Bail
before the Lower Court having jurisdiction to try the case.
15 Before
concluding, I am of the view that the matter does not rest hear with
the order of bail in favour of the accused-applicant. Now, since all
accused-applicants are practically on bail, the trial will not be
given priority as priority will be given to the matters where accused
have not been released on bail. This is suggestive of the fact that
in the present case we do not know when the trial would commence and
when it would conclude. Ordinarily, if the accused persons are on
bail, commencement of the trial is always at a later stage as
priority is given to under-trial prisoners who are not on bail.
However, in the peculiar facts and circumstances of the case, nature
of the offence and also taking into consideration the fact that five
persons lost their life and many more are rendered homeless and are
taking shelter as on today in a municipal school premises, I deem fit
and proper to direct the concerned trial court to commence with the
trial of the present case as early as possible so that in the event
if the prosecution is able to prove the case against the accused
persons, necessary orders as regards compensation can also be passed
under the provisions of Section 357(3) of the Code of Criminal
Procedure. In this view of the matter, the following directions are
issued:-
(a) The concerned trial
Court is directed to see that charge is framed against each of the
accused persons within a period of 15 days from the date of receipt
of this order.
(b) the trial court would
take care to avoid granting any undue adjournments unless it becomes
absolutely imperative.
(c) After the appropriate
charge is framed against the accused-applicant and other co-accused,
trial Court is directed to take trial on day-today basis as early as
possible and conclude the trial as expeditiously as possible, in any
event, on or before 31st October 2011.
(d) Parties are directed to
examine the material and most essential witnesses and they will
cooperate with the trial Court.
16 It
goes without saying that observations touching the merits of the case
are purely for the purpose of deciding the question of grant of bail
pending trial and shall not be construed as an expression of the
final opinion in the main matter.
With
these directions, application is allowed. Rule is made absolute.
Direct Service is permitted.
Registry
is directed to forward a copy of this order to the Principal Judge,
City Civil and Sessions Court, Bhadra, Ahmedabad so that necessary
orders on administrative side can be passed in this regard to give
effect to the directions issued by this Court.
(J.B.Pardiwala,
J.)
*mohd
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