Mr. Debasis Bhattacharya vs State and Public Prosecutor, Panaji, Goa

F.M. Reis, J.—All the above applications are taken up together as both the learned Counsel have pointed out that the facts in all of them are similar. The Applicants have filed the above applications for anticipatory bail u/s 438 of the Criminal Procedure Code on the ground that on the basis of a complaint lodged by Filomeno L. Costa, PSI, attached to the Vasco Police Station, a FIR is lodged under Crime no. 136/2011 and 137/2011 for offences u/s 336, 227, 338 and 285, read with Section 34 of I.P.C. Subsequent to the death of some persons, the police had added Section 304 of the I.P.C. It is further the case of the applicants that they are not involved in any crime reported by the police and that they are innocent. The offence is sought to be registered on account of the incident of the leakage of naphta that took place on 19.08.2011 at Vaso. It is further their case that the Zuari Oil Tanking Limited, operates a pipeline that is meant for transportation of Naphta which runs from Mormugoa Port to the tanks owned by the said Company which is located at Sancoale. It is further their case that the said Company has acquired right of way over the said area through which the said pipeline is located and that the Company had engaged securities for inspecting the said pipeline. It is further their contention that the National Highway Authority engaged a contractor for the purpose of widening of the road and that the contractor without obtaining any prior permission, carried out the excavation work in the area which damaged the pipeline. The security personnel noticed that on account of such excavation, a portion of the pipeline was exposed and the officials inspected the pipeline and found no damage to such pipeline with the exception that the anti-corrosive coating applied on the pipeline was peeled off. It is further their contention that the Company received Naphta in August, 2011, and that at about 20.15 hours, there was a fire at Ram Mandir, Gandhinagar, Vasco, on 19.08.2011. When they inspected the pipeline, they found that the same was punctured and the same was covered with earth, It is further their case that the Applicants appeared before the Respondents on 23.08.2011, 24.08.2011 and 28.08.2011 and have been interrogated. It is further their case that there was no negligence on the part of the Company or the Applicants. They further contended that they are innocent and that they are willing and ready to produce any documents and co-operate with the investigations. It is further their contention that the applications for anticipatory bail were filed before the learned Sessions Judge, Margao, which came to be dismissed by Order dated 05.09.2011. Accordingly, apprehending their arrest, the Applicants have preferred the above applications praying, inter alia, for a direction that in the event of the arrest of the Applicants in connection with the said crime, they should be released on bail upon such terms and conditions as this Court may deem appropriate.

The Respondents have filed their reply and pointed out that the offences have been registered u/s 336, 337, 338, 427, 485 read with Section 34 of I.P.C. on 22.08.2011. It is further their case that in the incident, so far four persons including a minor and a lady have lost their lives and four persons including three minor boys are fighting for their lives and as such Section 304 IPC was added. It is further the apprehension of the Respondents that during the process of undertaking the construction work on National Highway 17-B, from Varunapuri to Gandhinagar, the National Highway Authority as well as the KMC constructions have acted in a most negligent manner without taking proper care and caution and damaged the Naphta pipeline belonging to the ZIOL. It is further their contention that though the pipeline is stated to have been damaged on 06.08.2011, the officials of ZIOL had ample time to take corrective measures and to repair the damaged pipeline. It is further their case that as the Applicants are Chief Executive Officers of ZIOL and being aware of the damage, did not take safety measures to inspect the said pipeline and did not conduct any test to confirm the safety position of the pipeline. Accordingly, the Respondents submitted that the applications deserve to the rejected.

Shri S. D. Lotlikar, the learned Senior Counsel, appearing for the Applicants, has pointed out that even assuming all the facts which are sought to be canvassed by the Respondents are accepted, at the most, the alleged offence should come within the provisions of Section 304A of the I.P.C. The learned Senior Counsel further pointed out that all the acts complained against the Applicants can be terms as rash and negligent and by no stretch of imagination, can they said to have committed any offence punishable u/s 304 I.P.C. Learned Senior Counsel has further taken me through the reply filed by the Respondents and pointed out that Section 304 of I.P.C. was introduced only after the death of some persons and without any reasonable ground or material with the Respondents. The learned Counsel further pointed out that the Applicants have been co-operating with the investigations and have produced all the documentary evidence sought from the Applicants and are prepared to render all assistance in the investigations. The learned Senior Counsel submitted that the Applicants have not committed any offence and are innocent. The learned Counsel as such submitted that the Applicants are entitled to be granted bail in the event of any arrest by the Respondents. In support of his submissions, he has relied upon the Judgments of the Apex Court reported in Savitri Agarwal and Others Vs. State of Maharashtra and Another, , (2008) 1 S.C.C. 791 in the case of Naresh Giri vs. State of M.P. and (2007)(14) S.C.C. 269 in the case of Prabhakaran vs. State of Kerala.

On the other hand, the learned Public Prosecutor appearing for the Respondents has pointed out that there is no case made out by the Applicants for grant of any anticipatory bail. The learned Public Prosecutor has pointed out that the Applicants have committed grave offence which have resulted in death of some persons and such Applicants are not entitled to anticipatory bail. The learned Public Prosecutor pointed out that there is enough material on record to substantiate that the Applicants have committed offences including offences u/s 304 of I.P.C. The learned Public Prosecutor further submitted that this Court should not go into the aspects as to whether there is any material on record to substantiate the contentions of the Respondents that the Applicants have also committed offences u/s 304 of the I.P.C. as any observations of this Court may hamper the investigations by the Respondents. The learned Public Prosecutor further pointed out that there is no case for any anticipatory bail in favour of the Applicants.

I have considered the submission of the learned Counsel. I have perused the records as well as the Judgments relied upon by the learned Counsel. Taking note of the submissions of the learned Public Prosecutor that it would not be appropriate to ascertain from the material on record whether, prima facie, such allegations of the Respondents against the Applicants are well founded. I will not consider this aspect at this stage. But, however, no grievance is made out by the Respondents that the Applicants have not been co-operating with the investigations or have not appeared before the Investigating Officers from time to time. Apart from that, the learned Public Prosecutor has also pointed out that the relevant documents sought for by the Investigating Officer have been provided by the Applicants as directed. Besides that, there is no apprehension of the Respondents that the Applicants may abscond or may not be available for interrogating and/or investigation in respect of the FIR registered by the Respondents.

The Apex Court in the Judgment reported in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, , has held at Paras 112, 113 and 116 thus :

The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused''s likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

114....

115....

Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Considering the said Judgment of the Apex Court, I find that taking note of the material on record, there is no reason not to grant bail to the Applicants in the event of arrest of the Applicants in connection with the said offence. There is no specific material, prima facie, about the knowledge about the alleged damage to the pipeline attributed to the Applicants before the work was started and the exact role of each of the Applicants which led to the incident and, as such, I find that there is no reason for any custodial interrogation of the Applicants at this stage. In view of the above, I find it appropriate that the Applicants are entitled for bail in the event of their arrest subject to the terms and conditions as stipulated herein below.

In view of the above, I pass the following :

ORDER

(i) In the event of the arrest of the Applicants, the Applicants shall be released on bail on furnishing a personal bond of Rs.25,000/- each with one local surety in the like amount to the satisfaction of the Investigating Officer.

(ii) The Applicants shall report to the Vasco Police Station initially for a period of seven days from Monday i.e. 10.10.2011 between 10.00 a.m. to 1.00 p.m. and 3.00 p.m. to 6.00 p.m. and thereafter to report as per the requests of the Investigating Officer.

(iii)The Applicants shall not leave the State of Goa without permission of this Court until chargesheet is filed.

(iv)The Applicants shall not tamper with the evidence or in any way influence the prosecution witnesses.

(v) The Applicants shall co-operate with the Investigating Officer and produce all documents, books and records as directed by the Investigating Officer from time to time.

(vi) All the above applications stand disposed of accordingly.