The judgment emphasizes that the material must prima facie indicate the accused's guilt of culpable homicide, and the knowledge of the accused persons about the sub-standard construction being likely to cause death during an earthquake could not be established.

ORDER

1. Leave granted.

2. This appeal is filed by the appellant against the order dated 10.02.2017, as modified vide order dated 22.02.2017, whereby application of the appellant under Article 227 of the Constitution of India challenging the legality and validity of order dated 15.02.2016 passed by the Chief Judicial Metropolitan Magistrate, Ahemdabad (Rural), Mirzapur has been dismissed. 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 15.02.2016.

3. 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 persons.

4. 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 time.

5. 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 provisions.

6. 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 circu