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2001 Supreme(Guj) 307
Gujarat High Court
Judgename :H.K.RATHOD
PATEL GIRISHBHAI RAVJIBHAI - Appellant
Versus
STATE - Respondent
CRI.M.A. 3106 of 2001
Decided On : 05/10/2001
Headnote:Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sec. 439 — Bail — Petitioners are Builders of `Surabhi Apartment — On 26.1.2001 during devastating earth quake `Surabhi Apartment collapsed due to substandard material used in construction resulting in death of 24 persons — Criminal case under Sec. 304 IPC initiated on private complaint — Bail to petitioners denied by Sessions Judge — Hence, present application for bail preferred with detail undertaking — Held, it is the duty of the Court to see and protect the interest of victims and those persons behind the bar due to unprecedented earth quake — Humanitarion stand and approach with such undertaking to reconstruct the flats on their entire expense and to compensate legal heirs of deceased with Rs. 75,000/- each considered — Release of such petitioners will not have adverse impact on mind of society — Bail granted without passing reasoned order on merits.
It is a duty of the Court to see and protect the interest of the person who have become victim in such grave incident and simultaneously also to consider the fate of the persons who are behind the bar because of this incident.
[Para 6]
It is with a view to achieve consistency in judicial pronouncement, the Courts have evolved the rule of precedents. Principle of stare decisis, etc. These rules and principles are based on public policy and if these are not followed by Court then there will be CHAOS in the administrations of justice.
Considering to have consistence approach in similar matters, though there is an objection of learned public prosecutor Mr. A.D. Oza on merits.
Earlier in all similar matters, Court has not passed reasoned order and therefore, in present case also Court is not passing the reasoned order in view of the above special facts and circumstances.
If the accused released by the Court and his presence in the society adversely affect or having adverse impact in the mind of society, then normally bails cannot be granted, but in a converse situation if accused released by the Court and his presence will helpful to the victim of the society, then Court may consider is a relevant factor for granting the bail in favour of accused.
In the present case, if the Builder remains in jail, it will not helpful in any manner to the members of housing society, whose flat/s are collapsed and their family members are died in such incident. But when Builder come forward with a bona fide undertaking and agreed to reconstruct the total flats collapsed in the incident at his own cost without taking a single penny from the concerned member/s and prepared to pay Rs. 75,000/- to each person who died in incident and other benefited terms, then in such circumstances according to Courts opinion, the presence of the petitioner will not adversely affect or having any adverse impact on the society.
[Para 7]
( 1 ). HEARD Mr. J. M. Panchal, learned advocate for the petitioner and Mr. A. D. Oza, learned Public Prosecutor with Mr. N. D. Gohil, learned APP on behalf of the respondent State. "the relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising the powers, the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. "[extract : Vaish Degree College Vs. Laxminarayan reported in AIR 1976 SC page 888 ]"law cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, rule of law must run akin to rule of life. And life of law is not logic but experience. . While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. "[extract : Municipal Board, Pratapgadh Vs. M. S. Chawla reported in AIR 1982 SC page 1493 ]"article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal inquiry. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects;`courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest. "[ Extract : Shivshankar Dal Mill Vs. State of Hyryana reported in AIR 1980 SC page 1037 ]rule. Mr. A. D. Oza, learned Public Prosecutor waives service of Rule on behalf of the respondent State.
( 2 ). THE brief facts of the present petition are as under :- as per the complaint dated 31st January, 2001, the complainant is serving as Engineer Assistant at Doordarshan Kendra. It is alleged in the complaint that Flats in the name and style of `sarva Darshan Apartments were constructed on the plot of the land bearing Survey No. 93/2 situated in the limits of village Thaltej by these builders, each flat was having super built-up area of 105 sq. yards and it was estimating at Rs. 4 lacs. It is further alleged that when the complainant went to the builder to purchase the flat, the builder told him to make payment of Rs. 3,05,000. 00 by cheque and Rs. 95,000/each cash. It is also alleged in the complaint that the builder also separately demanded Rs. 15,000/towards maintenace charges. It is also alleged in the complaint that the complainant purchased Flat No. 12 of Nilkanth Association. It is also alleged in the complaint that Rs. 3,05,000. 00 and Rs. 95,000. 00 were paid. The amount of Rs. 15,000. 00 towards maintenace charges was also paid. It is alleged in the complaint that one Mr. C. K. Daftari was the Engineer for the purpose of planning of the said Apartments. It is also alleged in the complaint that permission for constructing Aprtment was also obtained from the AUDA. It is further alleged in the complaint that after purchasing the flat, he was not given detailed plan and specifications regarding building / apartments, nor he was shown the same. It is also alleged in the complaint that Building Use Permission was also not obtained. It is also alleged in the complaint that builders have not built the said Apartments as per the plans, which were sanctioned by the AUDA. It is also alleged in the complaint that the members of the b
