Atul Vinodkumar Gorsawala vs State Of Gujarat

B.N. Karia, J

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. IÂ246 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.

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 respondentÂ​State and learned advocate Mr. Ashish Dagli for the original victim.

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 Controlroom 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.

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 “GRUDAâ€). 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 place at the relevant building during the year 2010Â11. That, while making out site inspection on 16.05.2013 alongwith Mr. Anil Joshi, at that

tine, applicant and coÂaccused persons had verified and scrutinized the applications and submitted a report for the purposing of issuing notice for the

impact fee under GRUDA. That, there is no further participation of the applicant in the incident. It is not the case of the prosecution that fire had

taken place at the third floor of “Takshshila Arcade†and applicant is failed to perform his duty as Junior Engineer whle verifying the application

under the GRUDA. That, as per the specific case of the prosecution the fire was erupted on the second floor due to shortÂcircuit in outer unit of one

of the Air Conditioners. It is the case of the prosecution that the fire spread further and it travelled up to the third floor. That, as the staircase which

was constructed from the third floor to fourth floor was made of wood, and therefore, it caught fire and resultantly, the people were struck on the

fourth floor. That, entire case is based on the illegal construction of the fourth floor with which the applicant is not concerned and that was also never

a part of the application made by the owner under the GRUDA, because 4th Floor was not in existence in the year 2013.

Learned Senior Advocate for the applicant has referred the statement of one of the witness Mr. Devesh Gohil and report submitted by the present

applicant and argued that fourth floor was illegally constructed in or around October November 2016 i.e., much after the COR was granted, and

therefore, applicant was not connected with illegal construction of the fourth floor, which is the real concern in the present case. It is further argued by

learned Senior Advocate for the applicant that as per the prosecution case, the applicant is failed to inspect the site and prior to issuance of notice for

determining the impact fee. That, the allegations are completely ill founded.

Learned Senior Advocate for the applicant has again referred the statement of one Mr. Devesh Gohil and submitted that the entire procedure of

regularization is explained by him. As per his statement, the applicant was required to carry out site inspection which the applicant had carried out

along with Mr. Anil Joshi. That, the said work done by the applicant is also evident from the work diary. That, prosecution case is merely based on the

“Google Earth†images and there is no material evidence to support the said contention of the prosecution that the “Dome†was wrongly

regularized by the authorities. That, the files, which were produced by the applicants of the building for regularization along with relevant documents,

were scrutinized as per the procedure and applicant had carried out the site inspection and also found out the discrepancy in certain measurements

and reported accordingly. That, considering the report, notice of impact fee was issued by the Executive Engineer to each of the applicants. Learned

advocate for the applicant has referred the statement of the Assistant Municipal Commissioner i.e., Ajitsinh Motisinh Raj and submitted that the

“Dome†was allegedly constructed between the cutÂoff date and the date of application. That, there is no nexus between the said construction

and cause of fire. That, the case of the applicant can hardly be termed as “negligentâ€. That, the applicant had never “knowledge†or

“intentionâ€, which are the primary ingredients of Section 304 of IPC and the same cannot be attributed to the applicant. That, the applicant has

throughout performed his duty under the GRUDA 2011 and after due verification and scrutiny, he has given appropriate report in that regard. That,

necessary ingredients of the said offence are clearly missing in the allegations levelled against the present applicant. That, from bare reading of the

FIR, it can never be inferred that the applicant had done the act which amounts to culpable homicide or knowledge that by such act, it was likely to

cause death. That, site inspection was undertaken in the year 2013 and incident in question had taken place in the year 2019 due to short circuit in the

outdoor unit of the Air Conditioner on the second floor.

It is further submitted by learned Senior Advocate for the applicant that as there is no nexus of the act of the applicant and the cause of fire neither

directly or indirectly. There is no overt act or negligence is attributed to the applicant which would have led to the unfortunate incident nor there is any

proximity between the applicant performing his duties and the occurrence of the incidence. That, the primary ingredients of Section 304 of the Indian

Penal Code are not satisfied against the applicant. That, Sections 465, 467, 468 and 471 of the Indian Penal Code were added later on. That,

allegations of forgery do not satisfy the primary ingredients as enumerated under Section 463 and 464 of the Indian Penal Code. That, the

Investigating Officer has failed to substantiate the allegations of forgery against the applicant. As per the prosecution case, documents submitted by

the original owner were forged and ingenuine, but the original owners, who produced the alleged documents before Assessment and Recovery

Department under the GRUDAÂ2011, are not made an accused and are not in fact cited as witnesses. It is not the case of the prosecution that the

applicant has forged any signature or any document. That, prosecution has not submitted any opinion of handwriting expert and not even disclosed

which documents are forged. That, the prosecution has failed to make out any allegations that the applicant had forged any document or even helped

in creating a false document. It is further submitted that co accused person namely Jignal @ Jignesh Pagdhar was released on bail before charge

sheet by the learned Sessions Court. That, other coÂaccused persons namely Sanjaykumar Laxminarayan Acharya, Dipakbhai Ishwarbhai Naik and

Kirtikumar Jitubhai Mod have been released on regular bail by this Hon'ble Court. That, from the entire chargeÂsheet papers, there is no iota of

evidence showing any nexus of the alleged inactions of the applicant with the incident in question.

Learned Senior Counsel for the applicant has relied upon the order passed by this Court in Criminal Appeal No. 340 of 2020 and allied matters.

It is further submitted by learned Senior Advocate for the applicant that chargeÂsheet is filed and investigation is over and custody of the applicant is

not required by the Investigating Officer, and therefore, it was requested by Senior Advocate for the applicant to release the present applicant on

regular bail by enforcing stringent conditions upon the applicant.

Learned Public Prosecutor Mr Mitesh Amin for the respondentÂState has strongly objected the arguments advanced by Mr. S.V. Raju, learned

Senior Counsel assisted by learned advocate Mr. Nandish Thackar for the applicant and argued that present applicant along with coÂaccused namely

(1) Parag Devendra Munshi (2) Jayeshbhai Ramanbhai Solanki (3) Vinubhai Karsanbhai Parmar were working in Surat Municipal Corporation and

were chargeÂsheeted along with the present applicant. That, these three accused persons barring the present applicant preferred one regular bail

application after filing of the charge sheet and out of all these three bail applications, application of accused person Parag Devendra Munshi was filed

before this Hon'ble Court being Criminal Misc. Application No. 18198 of 2019. That, this application was rejected by this Court vide order dated 6th

December 2019. That, the applicant of that application approached the Hon'ble Apex Court by filing Special Leave Petition which came to be

numbered as Special Leave to Appeal (Criminal) No. 11530 of 2019. That, vide order dated 17.01.2020, the said SLP was dismissed. Learned Public

Prosecution has relied upon the order of this Court passed in Criminal Misc. Application No. 18198 of 2019 and order of Hon'ble Apex Court passed

in Special Leave to Appeal (Criminal) No. 11530 of 2019.

It is further submitted by learned Public Prosecutor that the application of the coÂaccused Shri Munshi was considered by this Court in detail on the

basis of charge sheet material and this court has rejected the same giving detailed reasons. That, this Hon'ble Court has reserved liberty of the

accused to file fresh application before the concerned Sessions Court after a period of six months if trial is not commenced. That, this Court in a

matter of Shri Munshi has specified role of that applicant from the material of the investigation as this accused in connivance of others have played

major role in regularization of the illegal construction without following procedure prescribed under the provisions of the GRUDA and rules framed

thereunder. That, role of the present applicant is not only very much comparable with the accused Shri Munshi but is also on little bit higher footing as

present applicant was supposed to make site visit, which according to the case of the investigation, is regularized through the said site was having

illegal construction and that illegal construction was made subsequent to the cutÂoff date of 28.03.2011. That, other two Engineers of Surat Municipal

Corporation namely Jayeshbhai Ramabhai Solanki has preferred Criminal Misc. Application No. 18853 of 2019 after filing of the charge sheet, which

was withdrawn by him, as Hon'ble Supreme Court had already decided application of other accused Shri Munshi on 17.01.2020. That, while granting

permission for withdrawal this Court had referred order of the Hon'ble Apex Court regarding expediting the process for completing the process of

framing of charge within specified period. That, another co accused namely Vinubhai Karsanbhai Parmar had also preferred regular bail application

being Criminal Misc. Application No. 18854 of 2019 after filing of the charge sheet. That, the said application was also withdrawn vide order dated

27.01.2020. That, as per the order of the Hon'ble Apex Court. Process of completing stage of framing of charge to be expedited by learned trial Judge

and in the event that this process is delayed beyond three months for the reasons other than the conduct of the applicant. That, on 01.02.2020, list of

documents was submitted by the prosecution as well as prosecution led proposed charge against the accused before the learned Sessions Court. That,

subsequent thereto, charge sheeted accused no.2, 3, 6 and 11 submitted discharge application on 03.03.2020 and present applicant also submitted

application for discharge on 02.03.2020. That, oral submissions were made before the court by the parties and matter is presently pending for order.

That, applicant had delayed the process of framing charge, and therefore, he is responsible for his conduct of delaying the process of framing of

charge and considering the order passed by the Hon'ble Apex Court on 17.01.2020 as well as order of this Court dated 27t.01.2020, process of

framing of charge is delayed by the conduct of the present applicant. Therefore, right to prefer fresh application for bail is not helpful to him. Relying

upon the order of the Hon'ble Apex Court passed in Special Leave to Appeal (Criminal) No. 11530 of 2019 and order of this Court passed in Criminal

Misc. Application No. 18853 of 2019, learned Public Prosecutor has requested to dismiss the present application preferred by the applicant.

Learned advocate Mr. Ashish Dagli for the original victim has argued that fire was taken place near Sarthana Jakat Naka in the shopping centre

called as “ Takshashila Arcade†and the entire building is affected on account of the fire. That, on 4th Floor, boys and girls were trapped and as a

situation arose thereto to survive, they jumped from the 4th Floor and accordingly, about 22 students have lost their lives. That, the classes were

running on the 4th Floor in which students were trapped and staircase connected to 3rd and 4th Floor was also burnt. That, on conclusion of the

investigation, charge sheet was filed against the applicant and it was found during the course of investigation that the builder in connivance with the

applicant initiated proceedings for regularization of the illegal construction and for which, documents to show that construction was made before cut

off date ie., 20.03.2011, a bogus document, bills of one Navyug Enterprise was submitted which was later on found to be forged one. That, additional

chargeÂsheet was filed under Section 465, 467, 468 and 471 of the Indian Penal Code. It is further submitted that during the course of investigation, it

was found that though the construction of dome was made after cut off date but because of connivance with the applicant to take the benefit of the

Gujarat Regulation of Unauthorized Development Act (benefit of impact fee), the applicant who had made an inspection in the file of a certificate of

Navyug Enterprise that the work was over for 3rd Floor on 28.07.2010 and such certificate was given on 30.07.2010 by Navyug Enterprise, and in

support thereof, bogus bills were attached. A report was submitted by the applicant in favour of the builder and acted in connivance with the builder.

Learned advocate Mr. Dagli has also supported the arguments advanced by learned Public Prosecutor for the respondentÂState and has relied upon

the order of this Court passed in case of Mr. Munshi as well as order passed by Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 11530

of 2019 on 17.01.2020. It is further submitted that the complexity in the commission of offence is clearly established and also revealed that the request

made by him found to be not tallying with the situation at the site. That, looking to the seriousness of the incident, gravity of offence overall impact

upon the society where 22 innocent children/students have lost their lives and also 19 suffered injuries, it was argued that no discretion can be

exercised in favour of the present applicant by enlarging him on bail.

Having heard learned advocates for the respective parties as well as learned Public Prosecutor for the respondentÂState, perusing the papers

produced on record, it appears that entire case of the prosecution has been divided into three different zones in terms of attributing the causes to the

incident. First of all, the cause of the fire was a short circuit on the second floor, and therefore, the officers of the GEB were implicated. Due to the

fire, many students from the fourth floor could not escape because of the illegal construction, and therefore, the officers concerned at the relevant

point of time ie., during the period of regularization, are roped in. Secondly the fire officers, who did not ensure the fire safety in the said building even

when directed by the higher officers. If we may consider the second zone, the applications made under the GRUDAÂ2011 were only for the ground

floor, first floor, second floor and third floor. As per the case of the prosecution. “Dome†was not in existence before the cutÂoff date prescribed

in the Act, and therefore, the applicant and other coÂaccused persons had committed the present offence. In fact, it appears that “Dome†was

not in issue in the present case wherein the real issue is the illegal construction of the fourth floor, which was admittedly after the year 2015. In all 18

applications were received for regularization of the building in question ie. “Takshashila Arcadeâ€​ from the owners alongwith necessary documents

and photographs having stamp of concerned Architect. All the applicants had also attached the tax bills of the year 2012Â13 showing the age of the

property as 2 years. On 04.04.2013, the applicant was allotted the work of ascertaining the impact fee in Varachha Zone TP No. 22, which includes

subject building. The applicant was serving as Junior Engineer, and therefore, appointed alongwith four other Assistant Engineers and by office order,

the applicant was directed to undertake the work along with one Mr. Anil Joshi, which transpires from the document marked as AnnexureÂF and it

also appears from the other documents marked as AnnexureÂG (Colly.). On 16.05.2013, the applicant along with Mr. Anil Joshi had carried out

physical site inspection of the subject building and had identified the discrepancies which were recorded with the handwriting of the applicant on the

map submitted by the owner. As a part of the procedure, the applicant was required to maintain the work diary of the task,which was undertaken by

him, and accordingly, had recorded in his work diary along with Mr. Anil Joshi and by that way, site inspection of the building in question was carried

out by both of them on 16th May 2013. From the documents produced vide AnnexureÂH (Colly.), it appears that on 12th July 2013, a detailed report

was submitted by the applicant about the site inspection carried out by him as well as Mr. Anil Joshi and had pointed out some discrepancies of the

measurements in the building in question and this report was submitted by the applicant to the Executive Engineer. After considering the report

submitted by the present applicant, the coÂaccused namely Parag Munshi, who was serving as an Executive Engineer, had issued notice for impact

fee on finding the variations in the measurements to the concerned owners and necessary documents on this aspect are produced at AnnexureÂH

(Colly.) Thereafter, it appears from the document being AnnexureÂI that on 1st April 2015, by way of an office order, the portfolio of T.P. Scheme

No. 22 (in which building in question was situated) was given to one Mr. V. K. Parmar, and thereafter, entire procedure of submitting a report for the

purpose of issuing certificate of regularization was carried out by him and not by the applicant, as the applicant was transferred before the procedure

in granting COR was carried out. It appears from the AnnexureÂJ (Colly.) that on 14.07.2015, the certificate of regularization came to be issued by

the coÂaccused ie. Jayesh Solanki with regard to the construction of third floor along with the Dome. The applicant was not connected with the

process of the grant of the certificate of regularization. It appears from the document marked as AnnexureÂK that the Officers of the Varachha zone

had visited the premises in question at the instruction of Commissioner of Surat Municipal Corporation and had found that the building was being used

as per the certificate of regularization issued by the Corporation in the year 2015. It also appears that around October 2016, fourth floor was illegally

constructed just before Demonetization and was put to use in the year 2017 and on the fourth floor, NATA classes were being run by the coÂ​accused

namely Bhargav Butani and all the students were stranded on the fourth floor at the time of incident and this fact was cleared from the statement of

one witness Shailesh Dobariya and second witness Bharatbhai Paghdhar. The statements of both these witnesses suggest that 4th Floor was

constructed after the certificate of regularization was granted. Thus, prima facie it appears that the applicant was not connected with the said illegal

construction or granting certificate of regularization as well as 22 students who were stranded as there was only single entry and exit staircase made

of wood. This unfortunate incident of fire was taken place on 24th May 2019 and FIR came to be registered with Sarthana Police Station for the

offence punishable under Sections 304, 308 and 114 of the Indian Penal Code on 24th May 2019. The applicant was summoned for the first time on

2nd July 2019, however, his name was not shown in the FIR. ChargeÂsheet came to be filed against the coÂaccused persons on 20th July 2019,

wherein the name of the applicant was shown in the column no. 2 even when his anticipatory bail application was pending for consideration. It also

appears from the record that this Court (Hon'ble Mr. Justice Vipul M. Pancholi, J.) was pleased to release the coÂaccused persons namely

Sanjaykumar Laxminarayan Acharya, Dipakbhai Ishwarbhai Naik and Kirtikumar Jitubhai Mod on regular bail and copy of that order dated 3rd

December 2019 is annexed by the applicant as AnnexureÂ​N (Colly.).

At the initial point, coÂaccused namely Jignal @ Jignesh Pagdhar was also released on bail by the learned Sessions Court on 08.07.2019. Mr. Devesh

Gohil, in his statement, has clearly explained the entire procedure of regularization and as per his statement, the applicant was required to carry out site

inspection, which the applicant did carry out along with Mr. Anil Joshi. It is also clarified from the work diary that inspection was carried out by them.

There is no material from the chargeÂsheet papers to support the case of the prosecution that “Dome†was allegedly regularized by present

applicant in connivance with other coÂaccused. 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 namely Ajitsinh Motisinh Raj. 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.

From the bare reading of the FIR, it 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 the case of the prosecution, documents submitted by all the 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. If we consider

the order of this court passed in Criminal Misc. Application No. 18198 of 2019 preferred by Mr. Parag Devendra Munshi for the alleged offence, in

para 15 of this order, this Court has observed that:

“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 coÂaccused 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 coÂ‐

accused, passed an order of regularization of the illegal construction made by the coÂ​accused.â€​

Role of the coÂaccused namely Mr. Parag Devendra Munshi, whose bail application was rejected by this Court as well as Hon'ble Apex Court in

Special Leave to Appeal (Criminal) No. 11530 of 2019 was quite different from the role of the present applicant, and therefore, ratio laid down in the

order passed in the application preferred by coÂ​accused Mr. Munshi would not apply in the present case.

Considering the facts and circumstances, on the contrary, other accused are granted regular bail by this Court (Coram Hon'ble Mr. Justice Vipul M.

Pancholi, J.) and the copies of such orders are annexed in the petition vide AnnexureÂ​N.

The discharge application filed by the present applicant before the learned Sessions Court on 2nd March 2020 would not term that he is delaying the

procedure of framing of charge. It can be said that he is accruing his statutory right and the said application was also heard and it kept for order, and

therefore, the matter was not proceeded.

In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, I am of the opinion that this

is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is ALLOwed and the applicant is ordered to be released on regular bail in connection with an FIR being CR No. IÂ246

of 2019 registered with Sarthana Police Station, Dist: Surat, on executing a personal bond of Rs.10,000/Â (Rupees Ten Thousand Only) with one

surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall

not change his residence without prior permission of Sessions Court concerned;

The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the

above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be

executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any

of the above conditions, in accordance with law. At the trial, learned Sessions Court will not be influenced by the observations of preliminary nature,

qua the evidence at this stage, made by this Court while enlarging the applicant on bail.

Rule is made absolute to the aforesaid extent. This order be communicated to the applicant through Jail Authorities by the registry as well as learned

Sessions Court concerned.