1. - This order governs the disposal of bail application filed under Section 438 of Cr.PC. by Mr. J.D. Sharma, Advocate on behalf of the applicant Chhoturam Prajapat in FIR No. 16/2009 of police station Murlipura, District Jaipur, in the offences under Sections 336, 288 and 304 of IPC.

2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor for the State and perused the material on record.

3. The petitioner is alleged to have been involved in the offences under Sections 336, 288 and 304 of IPC. Learned counsel for the petitioner has canvassed that the petitioner was discharging his functions only as a mason. Neither he was the contractor nor the owner of the building under construction. The co-accused Ramjilal who has already been enlarged on bail by the Coordinate Bench, admitted before the Sessions Judge while moving the bail petition that he was the owner of the building and he was supplying the material of good quality for construction. The petitioner Chhoturam was simply working as a mason. Hence, in view of these facts and circumstances if the building collapsed the petitioner was not liable for it.

4. The second thrust of argument advanced by the learned counsel for the petitioner is that from no stretch of imagination the offence under Section 304 of IPC is made out from the facts and circumstances of the case. So far as the offence under Sections 288 and 336 of IPC are concerned, they are bailable. Thus, legally too, the petitioner deserves to be released on anticipatory bail.

5. Learned Public Prosecutor appearing for the State has opposed the bail petition on the ground that the petitioner has been shown as a contractor and it was he who along with Ramjilal was raising the construction on contract. It is an application filed under Section 438 of Cr.PC. and the case does not seem to be false, as such the petition may be dismissed.

6. In S.B. Cr. Misc. Revision Petition Nos. 101/2009 and 121/2009 (Chandrapal Singh v. State and Ors.) this Court while delivering the judgment on 3rd of March, 2009 observed in Para 39 that the gravamen of the offence u/s. 304 of IPC is intention or knowledge, whereas the nucleus of the offence under Sections 279, 337 and 338 of IPC are rash and negligent act. The petitioner is alleged to have committed the offences under Sections 288, 336 and 304 of IPC in the course of same transaction and the gravamen of the offence under Section 336 of IPC is also rash and negligent act. This Court in para 36 of the aforesaid order also observed that:

"It is certain that the investigation for the offences under Section 279, 337, 338 and 304 of IPC cannot be conducted together especially when they have been committed in series of one transaction and that too when the nucleus of the offences under Sections 279, 337 and 338 of IPC is rash and negligent act and the gravamen of the offences of Section 304 IPC is the intention and knowledge. Now can the intention and knowledge as also the rash and negligence run simultaneously? Can a man move in two opposite directions at a given time? It looks ridiculous to accept a proposition that when the accused respondent caused simple and grievous hurt to the victims namely Kr. Gauri, Kr. Maninder Kaur, Kr. Shaifali and Mukesh, his act was rash and negligent because the investigation is being conducted for the offences under Sections 279, 337 and 338 of IPC and when he caused the death of Kumari Babita Choudhary then he was having the knowledge that his act in all probability will cause her death, whereas all these four offences have been committed by the respondent in the course of one and the same transaction."

7. The facts of the instant case are also almost similar to that of the above case. The investigation is being done by the Police in the offences under Sections 288 and 336 as also 304 of IPC which are altogether opposite in direction and poles apart. For these offences, the investigation cannot run simultaneously, at a given