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2020 Supreme(Guj) 490
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Atul Vinodkumar Gorsawala – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Misc.Application No.8148 of 2020
Decided on : 07-07-2020
Advocate Appeared:
Mr. S.V. Raju Senior Advocate With Mr.Nandish H Thackar, Adv., Mr Ashish M Dagli, Mr. Mitesh Amin, adv
Point of Law:
It is not in dispute that the applicant was working as Deputy Engineer with Surat Municipal Corporation and he has passed an order of regularization of the illegal construction made by the co-accused in the premises in question. It is the specific case of the prosecution that the present applicant has without following procedure prescribed under the provision of the GRUDA and the Rules framed thereunder, in connivance with co-accused, passed an order of regularization of the illegal construction made by the Co-accused.
Headnote:
Criminal Law – Criminal Trial – Code of Criminal Procedure, 1973 – Section 439 – Indian Penal Code, 1860 – Section 304, 308, 465, 467, 468, 471 and 114 – Illegal structure on fourth floor of terrace of building and since no fire safety equipments were installed – Seeking enlargement on regular bail – FIR is filed stated that when complainant was on duty, he got the information from his superior officer to reach at the Shopping Center near where fire took place – Complainant reached at place of incident with his police personnel and he noticed that one firefighter was also present at the place of incident – It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of boys and girls started jumping from the building – At that time, complainant and other police personnel tried to stop them by shouting – Further stated that crowd gathered at the place of incident tried to save the boys and girls who jumped from the building – On the basis of the information given by the Surat City Police Control-room various firefighter vehicles reached at place of incident – Held, No material from chargesheet papers to support the case of the prosecution that “Dome” was allegedly regularized by present applicant in connivance with other coaccused – Documents produced by the applicants of the building for regularization along with relevant documents were scrutinized as per the procedure and applicant had carried out site inspection. The applicant had also found certain discrepancies in certain measurements and had reported it accordingly. Considering the said report, notice of impact fee came to be issued by the Executive Engineer to each of the applicants. This fact was cleared from the statement of the Assistant Municipal Commissioner – It appears from facts that applicant can hardly be termed as “negligent” as he had no knowledge or intention which are the primary ingredients of Section 304 of the Indian Penal Code, and therefore, same cannot be attributed to the applicant – Cannot inferred that the applicant had done the act which amounts to culpable homicide or he had knowledge that by such act, it was likely to cause death. The allegations of forgery do not satisfy the primary ingredients as enumerated under Section 463 and 464 of Indian Penal Code. As per case of prosecution, documents submitted by all the original owners were forged and ingenuine and these documents were produced before Assessment and Recovery Department, but they are not made an accused and are in fact not cited as witnesses. It is nowhere stated by the prosecution that the applicant has forged any signature or any document or has identified himself to be to be another. No opinion of hand writing expert was obtained by the prosecution nor even disclosed which documents were forged. No allegation was made by the prosecution against the present applicant that he had forged any document or even helped in creating a false document – It is a fit case to exercise the discretion and enlarge the applicant on regular bail – Application is allowed. (Paras 15, 18, 19, 20 and 21)
Facts of the case:
FIR is filed stated that when complainant was on duty, he got the information from his superior officer to reach at the Shopping Center near where fire took place – Complainant reached at place of incident with his police personnel and he noticed that one firefighter was also present at the place of incident – It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of the boys and girls started jumping from the building – At that time, complainant and other police personnel tried to stop them by shouting – It is further stated that the crowd gathered at the place of incident tried to save the boys and girls who jumped from the building – On the basis of the information given by the Surat City Police Control-room various firefighter vehicles reached at the place of incident.
Findings of the court:
No material from the chargesheet papers to support the case of the prosecution that “Dome” was allegedly regularized by present applicant in connivance with other co-accused. The documents produced by the applicants of the building for regularization along with relevant documents were scrutinized as per the procedure and applicant had carried out site inspection. The applicant had also found certain discrepancies in certain measurements and had reported it accordingly. Considering the said report, notice of impact fee came to be issued by the Executive Engineer to each of the applicants. This fact was cleared from the statement of the Assistant Municipal Commissioner. It appears from the facts that applicant can hardly be termed as “negligent” as he had no knowledge or intention which are the primary ingredients of Section 304 of the Indian Penal Code, and therefore, same cannot be attributed to the applicant – cannot inferred that the applicant had done the act which amounts to culpable homicide or he had knowledge that by such act, it was likely to cause death. The allegations of forgery do not satisfy the primary ingredients as enumerated under Section 463 and 464 of the Indian Penal Code. As per case of the prosecution, documents submitted by all original owners were forged and ingenuine and these documents were produced before the Assessment and Recovery Department, but they are not made an accused and are in fact not cited as witnesses. It is nowhere stated by the prosecution that the applicant has forged any signature or any document or has identified himself to be to be another. No opinion of hand writing expert was obtained by the prosecution nor even disclosed which documents were forged. No allegation was made by the prosecution against the present applicant that he had forged any document or even helped in creating a false document – It is a fit case to exercise the discretion and enlarge the applicant on regular bail.
Result: Application is allowed
JUDGMENT :
1. This application is filed by the applicant under Section 439 of Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for short) for enlarging him on regular bail in connection with the FIR being C.R. No. I246 of 2019 registered with Sarthana Police Station, Dist: Surat for the offence punishable under Section 304, 308, 465, 467, 468, 471 and 114 of the Indian Penal Code.
2. Heard learned Sr. Advocate Mr. S.V. Raju assisted by learned advocate Mr. Nandish Thackar appearing for the applicant, learned Public Prosecutor Mr. Mitesh Amin for the respondent-State and learned advocate Mr. Ashish Dagli for the original victim.
3. The aforesaid FIR is filed by one Mr. Ayubbhai Adambhai Vadgama, Police Sub Inspector, Sarthana Police Station, Surat. It is stated that when the complainant was on duty, he got the information from his superior officer to reach at the Shopping Center Takshasila Arcade, near Sarthana Jakatnaka where the fire took place. The complainant, therefore, reached at the place of incident with his police personnel and he noticed that one firefighter was also present at the place of incident. It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of the boys and girls started jumping from the building. At that time, complainant and other police personnel tried to stop them by shouting. It is further stated that the crowd gathered at the place of incident tried to save the boys and girls who jumped from the building. On the basis of the information given by the Surat City Police Control-room various firefighter vehicles reached at the place of incident. Thereafter, they tried to control the situation. It is further stated that after the control of fire by the firefighters, the complainant inquired at the place of incident. During the inquiry, it was revealed that illegal structure has been carried out by accused Harsulbhai Vakariya and Jignesh Savjibhai Pagdal. The said premises was given to one Mr. Bhargav Butani on rent. It is alleged that Bhargav Butani was running the classes. Because of the illegal structure on fourth floor of terrace of the building and since no fire safety equipments were installed and in absence of fire exit, the incident has taken place.
4. Learned Senior Advocate for the applicant has submitted that the present applicant was arrested in connection with the impugned FIR on 2nd October 2019 and since last 9 months, he is in judicial custody, as initially offence was registered under Sections 304, 308 and 114 of the Indian Penal Code. The applicant was working with Surat Municipality since last 34 years and is not connected with the crime in question. That, for the first time, he was allocated the portfolio of ascertaining the “Impact Fee” in the Town Planning Scheme No. 22, Varachha Zone on 04.04.2013, but prior thereto, applications along with the relevant documents were collected and scrutinized for regularization of unauthorized construction made thereon. That, the applicant was transferred to another department on 1st April 2015 ie., much prior to the grant of certificate of regularization, and therefore, he had nothing to do with regard to process of grant of COR, much less anything to do with the present incident. That, name of the present applicant was not shown in the FIR as an accused. That, he was Junior Engineer and his role was very limited to verification and measurement of illegal structure, which were to be legalized under the Gujarat Regulation of Unauthorized Development Act, 2011 (herein after referred to as “GRUDA”). That, as a part of his duty, applicant had visited the site on 16th May 2013 and had verified the application made for relevant building being “Takshshila Arcade” under GRUDA 2011 while taking into account photographs as well as tax bills, he had given a report stating that construction work had taken pl
