Kirtikumar Jitubhai Mod vs State Of Gujarat

V.M. Pancholi, J

1 . This application is filed under Section 439 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short) for enlarging the applicant on regular bail in connection with the FIR being C.R. No. I-246 of 2019 registered with Sarthana Police Station, Surat for the offence punishable under Sections 304, 308 and 114 of the Indian Penal Code.

Heard learned advocate Mr. Rutvij Oza for the applicant, learned Public Prosecutor Mr. Mitesh Amin for the respondent State and learned advocate Mr. Ashish M. Dagli appearing for the victims.

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. 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 advocate Mr. Oza appearing for the applicant submitted that applicant was arrested on 30.05.2019 in connection with the aforesaid FIR and he is in jail since last more than 6 months. After investigation, investigating officer has filed the charge-sheet and therefore the applicant filed Criminal Misc. Application No. 4622 of 2019 before the Sessions Court, Surat. However, the said application came to be dismissed by the Sessions Court by common order dated 19.09.2019 and therefore the applicant has filed the present application. It is submitted that now the investigation is over and charge-sheet is filed and therefore this Court may consider the case of the applicant.

5.Learned advocate Mr. Oza would contend that as per the papers of the charge-sheet, the applicant reached at the place of incident in time. However, no sufficient equipments were available with him and applicant has not called for the help in time. It is also alleged that applicant as a fire officer has to visit various premises and if the fire safety equipments are not installed, notice is required to be served to the concerned person of the premises. It is alleged that the applicant has not inspected the place of incident i.e. Takshasila Arcade. It is submitted that the said allegation is, prima facie, not correct. In fact the applicant is serving in the fire department of Surat Municipal Corporation since April 2013 and he was promoted to the post of fire officer on 02.03.2016. At the time of incident, applicant was posted at Kapodara Fire Station. It is submitted that Takshasila Arcade where the incident in question has occurred falls under the area of Mota Varaccha Fire Station and not under the Kapodara Fire Station. Learned advocate Mr. Oza has referred the information received by the advocate of the applicant from Surat Municipal Corporation in support of the said submission. It is also contended that in the papers of charge-sheet it is alleged that pursuant to the Comprehensive Development Control Regulations, 2017, when the building having height more than 15 meters, it is the duty of the applicant to inspect and survey the place of incident. However, it is submitted that as per the observations made by the concerned Sessions Court while rejecting the application of the applicant, the Takshasila Arcade is having height less than prescribed and therefore the provisions of Fire Safety Protection will not be applicable.

Learned advocate Mr. Oza would further contend that the applicant had reached to the place of incident within 7 minutes when he received information about the incident which has taken place at Takshasila Arcade. He has diligently performed his duty and saved lives of various persons and thereafter tried to control the fire. Immediately the applicant informed to the nearest fire stations and on the basis of the information given by the applicant the concerned fire officers came at the place with available equipments. Learned advocate for the applicant at this stage has referred the statements given by Harpalsinh Kanaksinh Rana and Jaypalsinh Mahipatsinh Dabhi. From the aforesaid statements, it is contended that when the applicant reached near Nana Varaccha Bridge and found dark and thick cloud of smoke, he declared Brigade Call (major call) and also passed massages to all the fire stations. Thus, it is contended that the applicant has not remained negligent while performing his duty.

7 . Learned advocate for the applicant submits that looking to the papers of the charge-sheet at the most allegation of negligence is alleged against the applicant which is punishable under Section 304A of the IPC. No allegation of intention on the part of the applicant or knowledge that the unfortunate incident will occur is made against the applicant. It is, therefore, urged that applicant be enlarged on regular bail.

8 . It is further submitted that applicant will not tamper with any evidence as the charge-sheet is filed and the material is already collected by the investigating officer. Applicant would be available at the time of trial and looking to the fact that there are number of witnesses which the prosecution will examine at the time of trial, trial of the FIR in question would not be over in near future and therefore this Court may enlarge the applicant on bail.

9 . On the other hand, learned Public Prosecutor Mr. Mitesh Amin opposed this application and contended that applicant has not followed the directions issued in the meeting held on 31.01.2019. Applicant has not checked the premises i.e. Takshasila Arcade where the incident of fire has taken place. It is submitted that due to the lethargic approach of the applicant, the incident in question has occurred. Therefore, when sufficient evidence is collected against applicant by the investigating officer and when the charge-sheet is filed against him, this Court may not exercise the discretion in his favour. It is, therefore, urged that this application be dismissed.

10 . Learned advocate Mr. Dagli appearing for the victims also opposed this application and contended that applicant was responsible for periodical checking of the commercial complexes, shopping centers, malls, high-rise buildings, etc. with respect to the fire safety measures in the area within the limit of fire station. Though the instruction was given in the meeting dated 31.01.2019 to carry out necessary checking, the applicant has not followed such instruction. It is submitted that when 22 young boys and girls lost their lives in the incident in question and 18 persons received injuries, looking to the seriousness of the incident in question, this court may not exercise discretion in favour of the applicant.

Having heard the learned advocates appearing for the parties and having gone through the material placed on record including the papers of the charge-sheet, it is revealed that the unfortunate incident has taken place at Takshasila Arcade on 24. 05.2019. In the said incident, 22 young boys and girls died and more than 18 persons received injuries. Thus, this Court is conscious about the seriousness of the incident which has taken place at Takshasila Arcade. However, if the allegation levelled against the applicant is carefully examined, from the charge-sheet papers, it is revealed that applicant was serving as fire officer in Kapodara Fire Station of Surat Municipal Corporation. When the applicant received the information about the fire which took place at Takshasila Arcade, he reached to the said place within 7 minutes and in the meantime he also declared Brigade Call (major call) and passed massages to all the fire stations. This Court has also perused the statements given by the witnesses viz. Harpalsinh Kanaksinh Rana and Jaypalsinh Mahipatsinh Dabhi. It is the specific case of the applicant on the basis of the information supplied under the Right to Information Act that the place of incident i.e. Takshasila Arcade falls under the area of Mota Varaccha Fire Station and not under the Kapodara Fire Station. The said aspect is not denied by the prosecution or the learned advocate Mr. Dagli appearing for the victims.

12 . At this stage, it is pertinent to note that if the paper of the charge-sheet is carefully examined, it is the specific case of the investigating officer that applicant has remained negligent while performing his duty by not properly checking/visiting the building in which the unfortunate incident has occurred. Thus, case of the prosecution itself is that applicant has remained negligent. Hence, even as per the case of the prosecution, applicant has committed offence punishable under Section 304A of the IPC. However, it is pertinent to note at this stage that this Court has not given any finding while examining the case of the applicant for enlarging him on bail that he has only committed the offence punishable under Section 304A of the IPC and therefore the observation made in this order shall not come in the way of the prosecution while establishing the charge against the applicant at the time of trial. The observations made in this order are tentative observations while enlarging the applicant on bail.

Thus, looking to the overall facts and circumstances of the present case when the applicant is in jail since last more than 6 months and when the charge-sheet is filed and material is collected by the investigating officer, there is no apprehension that applicant will tamper with any evidence. Applicant would be available at the time of trial and as there is no antecedent against the applicant, this Court is inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No. I-246 of 2019 registered with Sarthana Police Station, Surat on executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he 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 India without prior permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of twelve months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

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 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.'

17 . At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent. Direct service is permitted. © Manupatra Information Solutions Pvt. Ltd.