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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Prakash D.Naik, J.
Yunus Razzak Shaikh – Appellant
Versus
State of Maharashtra – Respondent
Criminal Bail Application Nos. 979
Decided On : 03-01-2023
Bail - Construction of Building - Ss. 304, 304-A, 337, 338 read with 34 of the Indian Penal Code - [Ss. 304, 304-A, 337, 338, 420, 471, 201 of IPC] - The court discussed the offences punishable under Ss. 304, 304-A, 337, 338, 420, 471, 201 of IPC and the involvement of the accused in the collapse of the building due to the use of inferior quality material. The court analyzed the role of each accused in the construction, supervision, and maintenance of the building, and their knowledge of the poor construction quality. The court also considered the evidence from witnesses and the report of Technical Investigation of Collapse of Tarik Garden Building submitted by Structural Engineering Department, VJTI Mumbai dated 17th May 2021. The court concluded that some of the accused were directly involved in the construction and supervision of the building, and their further detention was warranted, while others were granted bail based on their limited role and lack of evidence against them.
Fact of the Case:
The Applicants were seeking bail in connection with a case registered for offences punishable under Ss. 304, 304-A, 337, 338 read with 34 of the Indian Penal Code. The building 'Tarik Garden' collapsed due to the use of inferior quality material, resulting in casualties. The accused were involved in the construction, supervision, and maintenance of the building. The court analyzed the evidence from witnesses and the report of Technical Investigation of Collapse of Tarik Garden Building submitted by Structural Engineering Department, VJTI Mumbai dated 17th May 2021.
Finding of the Court:
The court found that some of the accused were directly involved in the construction and supervision of the building, and their further detention was warranted, while others were granted bail based on their limited role and lack of evidence against them.
Issues: The issues revolved around the involvement of the accused in the construction, supervision, and maintenance of the building, their knowledge of the poor construction quality, and their role in the collapse of the building.
Ratio Decidendi: The court's decision was based on the direct involvement of some accused in the construction and supervision of the building, as evidenced by witness statements and the report of Technical Investigation of Collapse of Tarik Garden Building. The limited role and lack of evidence against other accused led to their grant of bail.
Final Decision: The court rejected the bail applications of some accused who were directly involved in the construction and supervision of the building, while others were granted bail based on their limited role and lack of evidence against them.
JUDGMENT
PRAKASH D.NAIK,J. - The Applicants are seeking bail in connection with C.R. No.79 of 2020 registered with Mahad City Police Station for offences punishable under Ss. 304, 304-A, 337, 338 read with 34 of the Indian Penal Code. During the course of investigation Ss. 420, 471 and 201 of IPC were added.
2. The First Information Report (for short 'FIR') was lodged by Suhas Sitaram Kamble, Engineer working with Mahad Nagar Palika on 25/8/2020.
3. The first informant has alleged that, information was received on 24/8/2020 at about 06:15 pm, building namely that 'Tarik Garden' situated at 382-B, 382-C and 383-B consisting of five floor had collapsed and it has resulted in casualties. The informant visited the place of incident. On inspection, he noticed that inferior quality material was used for constructing the building which was the cause of collapse of building and consequent death of persons and causing injuries to several persons. On verification of documents it was noticed that, the building was constructed in the property owned by Abdul Razak Kadir Shaikh. It was constructed by proprietor of M/s. Kohinoor Developers Mr. Farooque Mahamoodmiya Kazi. The work of RCC design relating to construction of building and RCC construction was carried out through RCC consultant Shri. Bahubali T. Dhamane through M/s. Shravani Consultant. The constructions was carried out under the guidelines of Architect and Consultant, Navi Mumbai. The permission for construction of building was granted on 11/5/2011 by Chief Officer Shri. Sanjay Shinde and Jr. Supervisor Shri. Morkhandikar. The Occupation Certificate was issued by Chief Officer Mr. Dipak Zinzad and Jr. Civil Supervisor Shri. Shashikant Dighe.
4. Mr. Farooque Mahamoodmiya Kazi, Gaurav Shah, Bahubali Dhamane, Dipak Zinzad and Shashikant Dighe were arraigned as accused in the FIR. During the course of investigation, Yunus Razak Shaikh, Vivek Keshav Dongare and Irfan Hussainmiya Qazi were also impleaded as accused.
5. Learned Senior Advocate Mr. M. S. Mohite appearing for Applicant in Bail Application No. 979 of 2021 submitted as follows:-
(i) The Applicant is in custody from 28 th August, 2020. Further detention of the applicant is not necessary.
(ii) The Applicant is not responsible for collapse of building.
(iii) The offence under Sec. 304 of IPC is not attracted against the Applicant.
(iv) It cannot be said that the Applicant had knowledge that the building would collapse and it would result in casualties. The ingredient to constitute the offence under Sec. 304 of IPC are lacking.
(v) The property belonged to father of the Applicant. The Applicant had not played any role of construction of building. The development rights were assigned to the co-accused.
(vi) There is no direct or circumstantial evidence connecting the Applicant with the crime. In the charge-sheet, role attributed to the Applicant is that he persuaded parties to purchase flats in Tarik Garden and that the Applicant had collected maintenance amount from the flat owners. There is no evidence on record to show that, the Applicant was appointed/authorized to carry out the construction work.
(vii) Some of the persons, who died in the collapse of building are related to the Applicant. He was present in the building before the incident of collapse.
(viii) The construction of the building of Tarik Garden was assigned to Farooque Kazi of M/s. Kohinoor Developers. The Applicant cannot be held responsible for any negligence or responsible for the unfortunate incident.
(ix) Father of Applicant is the owner of land on which the building was constructed. In 2011, he obtained permission from Mahad Municipal Corporation for construction of building and thereafter, entered into Development Agreement with accused No.1 Farooque Kazi (Kohinoor Developers). As per Development Agreement, 40 flats were to be constructed out of which the owner had right to sell 35% flats and balance flats were to be sold by developer. The accused No.1 Far
AI
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