Back
2014 Supreme(Bom) 419
In the High Court of Bombay at Goa
MRIDULA R. BHATKAR, J.
Ajay Naik Dessai, Diploma Holder in Civil Engineering
Versus
Police Inspector, Canacona Police Station & Another
Criminal Application (Bail) No. 18 of 2014
Decided On : 19-02-2014
For the Applicant:Anaclet Viegas, Arun Bras De Sa, Nitin Raut Dessai, Amey A. Phadte, Advocates.
For the Respondents: S.R. Rivankar, Public Prosecutor.
Headnote:Criminal Procedure Code, 1973 - Section 438 - Indian Penal Code, Sections 304, 336 and 32 - Grant of anticipatory bail. - Where there was an illegal omission on part of applicant which led to loss of death of 31 workers therefore applicant not entitled to grant of anticipatory bail. - The ’acts’ which are generally attributed to such officers working in the public undertaking are in the nature of ’illegal omissions’. In the present case, the applicant/ accused was expected to supervise and inspect the building there is no record to show that required procedural steps at the time of revision or renewal of the plan were taken by this applicant/accused. The statements of the witnesses who are holding responsible positions in the Municipal Council and the administration, are considered and read. The said witnesses have stated that there is a lapse on the part of the applicant/accused, at the time of issuance of the Occupancy Certificate.
The fact of negligence and the omission is prima facie evident as Occupancy Certificate was issued by him on 28.12.2013 though the work was incomplete and subsequently many labourers were engaged to complete the work and building collapsed on 4.1.2014 within 7 to 8 days from the grant of the Occupancy Certificate. It prima facie reveals that there was an illegal omission on the part of the applicant/ accused, which indeed led to the disaster of the fall of the building and loss of death of 31 workers. While considering the application under Section 438 one of the criteria is the nature and the gravity of the accusation. While constructing the building the procedure laid down is a check which filters the irregularities and defects and reduces chances of calamity. In such offence, as stated earlier, the role of such officers is like an invisible hand. When there is lapse of observing the procedure laid down under the law, it is to be considered very serious and grave. Ultimately, it is a matter of public accountability and therefore accusations are to be considered much of grave and serious nature, especially on the background of the casualties taken place. Hence application for bail is rejected.
1. Application is moved by the applicant/accused for the anticipatory bail under Section 438 of the Criminal Procedure Code.
2. The applicant/accused is charged with the offences punishable under Sections 336,337,338,304 read with Section 120-B of the Indian Penal Code and also under Section 7 read with Section 13(1)(a) read with 13(2) of the Prevention of Corruption Act, 1988.
3. It is the case of the prosecution that a ground plus four storey building collapsed at Canacona on 4/01/2014 leading to 31 casualties. The applicant/accused was holding a post of Municipal Civil Engineer at the relevant time. The building which collapsed was not complete though Occupancy Certificate was granted to the said building on 26/12/2013. The building was constructed for the residential purpose. However, when collapsed, it was not occupied for the purpose of residence. The persons who died and injured in the calamity were all labourers employed by the contractor. The sub quality building material was used without taking proper precaution in respect of foundation, so building was week. The building was standing on earth fill which was not solid. Thus, after the disaster, police visited to the spot and one Prashant Shirodkar, a Deputy Collector and SDM, Canacona, Goa gave the FIR with Canacona police which is registered at Cr. No.1/2014 on the same day i.e. on 4/01/2014. FIR was registered against nearly 8 persons with name and unknown persons to the informant. It included the builder, contractor, supervisor, architect, engineers and persons from Town Planning Department. Thus, at the time of lodging of the FIR, instead of giving the names of the persons, the post or the persons having particular responsibility are mentioned as suspects. The name of the applicant/accused was included in the FIR subsequently. The applicant/accused therefore apprehending the arrest in the said Cr. moved anticipatory bail application no.33/2014 before the learned Sessions Judge, South Goa at Margao which was dismissed by order dated 20/01/2014. Hence, this anticipatory bail is preferred in the High Court.
4. The learned Counsel for the applicant/accused has submitted that the applicant/accused was working as a Municipal Civil Engineer in the Municipal Corporation of Canacona when the building collapsed i.e. on 4/01/2014. His assigned job was completely unconnected in respect of the structural calamity or the construction of the building. The learned defence Counsel has brought on record the relevant dates disclosing that the applicant/accused was posted as a Municipal Civil Engineer in Canacona Corporation on 1/07/2012. The plans were approved by the Municipal Authority on 28/05/2010. Construction licence was granted by Canacona Municipal Corporation on the same day i.e. on 28/05/2010. Thereafter, the plans were renewed on 3/11/2011. Thus, all these activities have taken place prior to the applicant taking charge of his post i.e. on 1/07/2012. The learned Counsel further submitted that the entire structure of the building was ready on 1/07/2012, when he took the charge and thus he had no occasion to supervise the construction of the building and, therefore, he is not responsible in respect of the structural stability of the building. It is pointed out that after fall of the building, the Government formed Investigating Committee to find out the reason of the collapse of the building. The said Committee compromised of four technical persons, who are supposed to be the experts in their fields submitted report on 8/01/2014 and as per their report the reason given was that the building was constructed on earth fill and the fill being held back by a large retaining wall, the building collapsed. The said retaining wall has deteriorated and tilted and the vertical cracks were developing progressively. The learned Counsel pointed out that in the report the experts have further mentioned the reasons for collapse of the building and it was most likely due to th
