State of Gujarat vs Parshant Janardhan Pandey

S.G. Shah, J.—Heard learned APP Ms. Jirga Jhaveri for the applicant - State and learned advocate Mr. J.M. Panchal for learned advocate Mr. Rajesh K. Kanani for the respondents. All these four applications are arising from the same FIR being Ichhapor (Surat) Police Station, I - C.R. No. 02 of 2013. All the applications are against different accused for cancellation of bail granted by the Sessions Court, Surat in respective bail applications filed by them. Considering the fact that incident and thereby facts and details of crime are common, all these four applications are heard together and decided by this common judgment and order.

The factual details of all four application are as under:

(1) Criminal Misc. Application No. 5848 of 2013 is filed by Jagpalsingh Garjrajsingh Senger, who is Assistant Security Officer deputed at the place of incident by private security agency namely Silver Oak Security Agency.

(2) Criminal Misc. Application No. 5849 of 2013 is preferred by Khomesh Manohar Dongare, who was Assistant Manager, Engineering Project at Indian Oil Corporation Limited. Hajira village, Surat.

(3) Criminal Misc. Application No. 5892 of 2013 is preferred by Prashant Janardhan Pandey, who was serving as Senior Terminal Manager at Indian Oil Corporation Limited, Hajira village, Surat.

(4) Criminal Misc. Application No. 5894 of 2013 is filed by Birendrasing Ramnivassing Yadav, who was also deputed at the place of incident as Security Guard by private security agency namely Silver Oak Security Agency.

Thereby all these four persons were concerned with the place of incident and its security.

On perusal of FIR, it transpires that in supply terminal of Indian Oil Corporation Ltd. at Hajira, which is broadly known as Hajira terminal of Indian Oil Corporation Ltd., a huge fire was broken out at about 12:30 p.m. on 05.01.2013. On receipt of such information, complainant - police inspector of Ichhapur police station - Mr. S.M. Patel had rushed at the place with the available force and facility so as to handle such disaster and there he found that the Indian Oil Corporation Ltd. does not have sufficient means and equipments to control such fire. Therefore, help of other government offices like office of the District Collector, office of the Disaster Management as well as fire fighters from other private companies like Reliance, GRIMCO, ONGC were called upon and even thereafter when it was found that fire is not under control, fire fighters from Vadodara and Ahmedabad were called upon. It is further stated in the complaint that Indian Oil Corporation Ltd. does not have a proper system to spray water and ante-inflaming form so as to control the fire and there are in all 8 tanks of fuel like petrol and diesel at Hajira, out which fire was broken in tank No. 4, and it may be caught by tank Nos. 3 and 5, if it has not been taken care of in time and if all 8 tanks caught fire it may results into a serious issue of life and property in nearby area. It is further stated that it was difficult for anyone to go near the tank so as to verify the correct position and to take care of such situation.

3.1 Complaint further disclosed that during the operation to control the fire, dead bodies were found near the tank No. 4 but the same cannot be identified. Therefore inquiry was made by the security supervisor and on verification of entry register of the main gate, it was found that workers of Shri Amba Associates, to whom some maintenance work was assigned namely, Rahul, Jitendra, Jalandhar and Ravi had entered into premises. Therefore, relatives of those persons were called upon. Family members of some of such persons could identify the dead bodies of Rahul Shardaprasad Nisha, aged about 20 years, Jalandhar Shriramasan Chaudhari, aged about 30 years and Devendra Rajaram Giri, aged about 34 years. Unfortunately, it reveals from the complaint that while inquiring about the total number of persons in the area, when investigating agency has verified the entry register being maintained by the security agency, it has been found that several corrections are made and several entries were tempered with, whereas two pages were missing from the register for the relevant date and therefore it was not possible to ascertain total entry. However, at least on 05.01.2013, as many as 125 entries of different persons were found as if they have entered into the site. Verifying the relevant entries of 4 persons referred herein above, namely Rahul Jalandhar, Jitendra, Ravi; when Rahul Devendra and Jalandhar were found dead, there was no confirmation about Jitendra and Ravi that whether they have came out of the area or not. Therefore missing persons entry No. 2 of 2013 and 3 of 2013 respectively were registered by the investigating agency. The FIR also discloses that considering the gravity of fire, officers of the Forensic Science Laboratory (FSL) were called upon, who had examined the site of fire after it was taken into control and as per their opinion several parts of tank as well as several equipments used for the maintenance like nut bolt, buffing disk, still cutter blade, plates and ancillary accessories were found in surrounding area in uneven position and condition. Safety bolts were also found with mark of burning and that separate cable was found on the place. However there was no mark of either short circuit or explosives. So far as leakage was concerned, officer of the Forensic Science Laboratory (FSL) has opined that the maintenance of partition tank can be taken by the cold welding or electric welding but there is no mark of electric welding and thereby only cold welding was utilized. However, it has been categorically opined by the officer of the Forensic Science Laboratory (FSL) that even during the process of cold welding, there is possibility of sparking when buffing and bonding or feeling was done through grinder and such spark may caught by explosive gas and fuel which gets lick in the air. Explaining all such technical issues, the officer of the FSL has opined that upper or top plate of floating roof was broken down with explosion and fall on the ground, may be because of sparking during the cold welding and it ultimately results into huge fire wherein persons who are working on floating roof were got burnt and died. It is also stated that material of cold welding and equipments for the same were lying on the place.

3.2 Based upon above incident considering the huge loss of wealthy fuel like petrol and diesel and considering that several persons must have loss their lives at the place of fire and more particularly considering fact that there was breach of conditions of security both by the officers of the Indian Oil Corporation Ltd. and officers of the private security agency and to hide their misdeed and negligence when they have tried to tamper with the entry register by torning two pages, making some overwriting and tempering with the entries, the investigating agency registered FIR for the offences punishable under Sections 304(II), 201, 166, 285 and 114 of the Indian Penal Code as well as Section 23 of the Petroleum Act and Rule 117, 121 and 121(III) of Petroleum Rules 2002 with Section 4 of Prevention of Public Property Damages Act, 1984 against all 4 respondents.

3.3 So far as role and responsibility of all the respondents are concerned, it is submitted that Birendrasing Yadav and Jagpalsinh Sengar had failed to see that no person reaches near the fuel tank area without work permit and with mobile phone and other flammable items when their duty was near gate No. 2 since they are responsible for overall security. So far as respondent Jagpalsinh Sanger is concerned, he is also responsible to maintain the register on main gate, which remained in his custody, where entry and exists of every person is to be noted. Tempering with such register, results into non-availability of actual number of casualty. Both of them being officers of the private security agency were responsible for keeping tight security of said highly inflammable area and when 3 mobile phones near the place of fire and near the dead bodies of these persons were found, they are responsible to allow such persons with mobile phone and without valid work permit, since for each and every entry in such area prior permission is must as per the terms and conditions confirmed for security purpose and it was known to all concerned. Learned APP has referred and read out all relevant information for such work permit from relevant Rules and work contract assigned to M/s. Amba Associates.

3.4 Whereas respondent Prashant Pandey and Khomesh Dongre being higher officers at the level of manager, they are responsible for not taking proper care of the highly inflammable storage tanks. Though Khomesh Dongre had noticed leakage on 31.12.2012 and though he has conveyed such fact by SMS to the contractor Mr. P. Shankarna, he allowed Prashant Pandey to visit the place on 31.12.2012 without any valid permission who in turn informed the officer of the Indian Oil Corporation Ltd. Namely Mr. Anil Kukreja via email at 9:36 a.m. on 04.01.2013 regarding seepage of oil product conveying that "party is still on job" whereas Khomesh Dongre was aware about the seepage which has been confirmed by his email messages dated 02.01.2013 when he has conveyed the contractor about the leakage of pantum of the tank No. 4 and he also allowed one of the deceased namely Devendra Giri to visit the place of incident without valid permit on 3rd & 4th January 2013 and from the record of the phone it has been confirmed that he was constantly in connection with Devendra Giri as at least 5 SMS were sent by him in 50 minutes. Moreover, he had long discussion on phone with Devendra Giri once for 32 minutes and second time for 27 minutes. Thereby officer of the Indian Oil Corporation Ltd. were constantly in touch with Devendra Giri, who was found dead at the place of incident and though no valid permission was issued by the office of the Indian Oil Corporation Ltd. for entry of Devendra Giri into the highly security zone with instruments like mobile phone, as many as 3 mobile phones were found near the place of incident with 3 dead bodies.

The applicant - State has categorically submitted and argued that there is an ample evidence against the respondents regarding their statutory and gross negligence in performing their duties which resulted into huge loss to the country when costly fuel was burnt and several people were died. Therefore, State being investigating and presenting agency has prayed to cancel the bail granted to the respondents by the Sessions Court. It is also specifically alleged and submitted that Khomesh Dongre had allowed all the persons to such highly flammable zone and he torn the register and such torn pages were recovered from his custody in presence of Panchas whereas Prashant Pandey failed to supervise the activity of Khomesh Dongre. He also allowed the entry of the deceased persons and other persons in the sensitive area without permission by the authority. Whereas Jagpalsingh Senger and Birendrasing Yadav had abated all such activity by allowing all such persons to enter in such area and by overwriting and tampering the entry register as well as by torning the pages of such register.

4.1 Learned APP has also relied upon terms and conditions of the work permit and other relevant documents relating to conditions for safety of the storage area submitting that instructions were not followed by the accused and that email between officers makes it clear that accused have failed to take safety measures to safeguard the highly inflammable petrol which resulted into huge loss of fuel and damage to the tune of 45 Crores. It is also submitted that all such allegations and factual details were brought record during the investigation in the form of statement of concerned witnesses and in the form of documentary evidence which confirms that Rules were not followed for keeping the area safe in as much as no work permit as per the procedure was issued and that fire was continued for 48 hrs. Learned APP has explained several conditions from the work permit. However, at present discussion of such work permit is avoided for the simple reason that it may otherwise prejudice the trial and right of the accused.

As against that learned advocate Mr. J.M. Panchal for the respondents has submitted that prima-facie there is no case against the petitioner and if at all there is a case, it is u/s 304(I) and not u/s 304(II) of the Indian Penal Code. It is further submitted that Indian Oil Corporation Ltd. has given contract to the Silver Oak Security Agency for security and maintenance contract to Shri Amba Associates. However, none of the person from the maintenance contractor is taken as an accused though work permit is to be followed by them. It is further submitted that practically at the time of incident the visit was only for inspection and verification of leakage and actual report or steps are not to be taken at such stage and enforcement of work permit comes into picture thereafter. It is submitted that there was no scope or reason to believe that because of presence of deceased persons at the site of incident during inspection, incident has taken place. It is submitted that investigating agency has failed to confirm the cause of fire on record and that there is no evidence of negligence and thereby there is no evidence regarding deviation of duty or means rea by the accused persons so as to cancel the bail granted by the Sessions Court.

So far as impugned order of granting bail is concerned, the perusal of the same, it becomes clear that though the Sessions Court has recorded and narrated the incident in so many words and though it has been recorded that there is no confirmation about the total casualty in the area while considering the bail application, the Sessions Court has relied upon following aspects:

1) There is no sign of shot-circuit or presence of explosives.

2) There is no evidence that maintenance of top roof was done.

3) For the alleged offence u/s 304(II) of the IPC, prescribed maximum sentence is for 10 years only.

4) The minimum sentence may be only fine without imprisonment.

5) Even in cases of earthquake, the High Court has released several accused, though there were charges u/s 304(II).

6) There is no possibility of abscondment of accused.

7) They were not served with memo in their service.

8) There is no direct evidence against any of the accused.

9) There is no evidence that work was initiated or directed by the applicants.

10) There is no prima-facie evidence regarding involvement of the applicant.

6.1 However, the most surprising reason assigned by the Sessions Court in para 4 of internal page 5 of the judgment and order in Criminal Misc. Application No. 111 of 2013 while granting bail to the Prashant Pandey is to the effect that during the arguments of the bail application the discussion had taken place between the Court and the investigation officer (I/O.), which is reproduced in all orders of the bail is to the effect that the investigating officer of the incident is present before the Court to whom straight questions were put by the Court that; "Is there any prima-facie evidence regarding the manner in which incident has taken place?" and that "whether this incident has taken place during the maintenance work?" and "Is there any prima-facie evidence to that effect?". The learned Sessions Judge has recorded that on such questions, the Investigating Officer has categorically discloses to the Court that "there is no prima-facie evidence". Moreover it is also recorded by the Court that, in answer to the question, "Is there any prima-facie evidence regarding criminal negligence of the accused?" Investigating Officer has categorically discloses that "there is no prima-facie evidence to that effect" and it was conveyed that there is one email regarding repairing of tank No. 4 and therefore it is to be believed that repairing work was started. However, the Sessions Court relied upon investigation and held that it cannot be proved that repairing work was carried out. Thereby, learned Sessions Judge has observed that in view of such conversation and in view of record of the investigation, there is no evidence against the accused regarding their negligence or breach of Rules, and thereby learned Sessions Judge has made categorical observations that there is no prima-facie evidence against the accused, regarding commission of offence as alleged.

I have perused the relevant information and conditions of contract of maintenance and security which specifically confirmed that nobody may be allowed without work permit for which there is specific proforma and for every entry, specific permit for limited period is always issued by the competent authority of the Indian Oil Corporation Ltd. At least 3 different persons were found at the site of incident when there is no dispute that there was no work permit in favour of such deceased person to enter into the area and that to with ban material like mobile phone. At the same time officers in-charge of place are aware about the entry of such persons without permit and with mobile phones when they had live conversation with one of the deceased, it cannot be said that there was no role at all, of all such persons for the reason of breaking out of huge fire which resulted into death of 3 persons and missing of 2 persons from site as well as loss of costly fuel to the tune of 45 Crores.

7.1 Therefore, prima-facie the impugned order is without application of mind and based upon not only irrelevant grounds and material but totally on irrelevant and unwarranted reasons and that to recorded in the name of the Investigating officer, more particularly, when Investigating Officer has filed detailed affidavit before the Sessions Court regarding the manner of incident and role of the accused. It is difficult to believe that investigating officer has stated that there is no prima-facie evidence against the accused. To that extent irrespective of final result regarding bail or no bail to the accused, the order of Sessions Court is bad in law and need to be quashed and set aside. The above decision get support from the following legal position:

(1) In Pravinbhai Kashirambhai Patel Vs. State of Gujarat and Others, the Apex Court has though confirmed the order of anticipatory bail by rejecting the request for cancellation of such bail, makes it very clear that each case has to be considered on its own merits and no straight-jacket formula can be laid down for universal application. While holding so, the Apex Court has relied upon the judgment in Puran Vs. Rambilas and Another etc. etc., wherein, the grounds for cancellation of bail u/s. 439(2) of Cr.P.C. were considered and it was held that an order granting bail by ignoring material evidence on record and without giving reasons, would be perverse and contrary to the principles of law and such an order would itself provide a ground for moving an application for cancellation of bail. It was further observed that such ground for cancellation of bail would be different from the ground that the accused has misconducted himself or that some new facts called for cancellation of bail. Thereby, the Apex Court has reconfirmed the principles laid down by it in the case of State Vs. Amarmani Tripathi, which broadly covers the matters to be considered in an application for grant of bail. However, it was made clear that even then the same may not fully cover the fact-situation of each case.

(2) In Lokesh Singh Vs. State of U.P. and Another, the Apex Court has though carved out following factors for consideration while dealing with the application for bail, order of bail was set aside when bail was granted without assigning reasons in the case where accused was charged of criminal conspiracy to murder. The relevant Paragraphs need to be reproduced hereunder:-

8... While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

Prima facie satisfaction of the Court in support of the charge,

Any order dehors such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay Vs. Sudarshan Singh and Others, Puran Vs. Rambilas and Another etc. etc., and in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another,

Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated.

In Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, In para 11 it was noted as follows:

The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh and Others, and Puran Vs. Rambilas and Another etc. etc.,

It was also noted in the said case that the conditions laid down u/s 437(1)(i) are sine qua non for granting bail even u/s 439 of the Code.

In Puran Vs. Rambilas and Another etc. etc., it was noted as follows:

Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the ball on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under: (SCC p. 124, para 16)

If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court u/s 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

Above being the position, we are of the view that the High Court was not justified in granting bail to respondent No. 2. The order granting bail is set aside. The respondent No. 2 who was released on bail shall surrender to custody forthwith. We make it clear that we have not expressed any opinion on merits of the case...

(3) In Sami Ullaha Vs. Superintendent, Narcotic Central Bureau, the Apex Court has, while considering the validity of bail order, though bail was confirmed, re-confirmed the legal position that there exists a distinction between an appeal from an order granting bail and an order directing the cancellation of bail. It is stated by the Apex Court that while entertaining an application for cancellation of bail, for want of misuse of order of bail, it must be found that the accused has misused the liberty granted to him and resulting into

[a] an attempt to tamper with the evidence

[b] attempt to influence the witnesses and

[c] possibility of abscondment.

7.2 In view of settled legal position, the impugned judgment and order dated 21.01.2013 in Criminal Misc. Application No. 111 of 2013 releasing Prashant Janardhan Pandey on bail, whereas in Criminal Misc. Application No. 110 of 2013 releasing Khomesh Manohar Dongre on bail, Criminal Misc. Application No. 163 of 2013 releasing Jagpalsing Gajrajsinh Sengar on bail and Criminal Misc. Application No. 108 of 2013 releasing Birendrasing Ramnivas Yadav on bail by the Sessions Court, Surat are hereby quashed and set aside and thereby all the observations narrated in the name of investigating officer in such impugned orders are hereby quashed and set aside.

7.3 This would practically resulted into directing the respondents to immediately surrender to the custody. However, considering the other aspect of such matters when order of bail are passed in January 2013 and that now charge-sheet is already filed and when there is no allegations or evidence regarding misuse of order of bail by any of the respondents and since evidence either in the form of documents and/or in the form of circumstantial evidence, there is least chance of tampering with such evidence, I do not think it fit to direct the respondents to surrender to the custody. Therefore, these applications are partly allowed. Thereby, though impugned orders are quashed and set aside, respondents are ordered to be released on bail on furnishing personal bond of Rs. 100,000/- (Rupees One Lakh Only) each, with solvent surety of the same amount and with following conditions that they shall:

a) not take undue advantage or misuse liberty;

b) not try to tamper or pressurize the prosecution witnesses or complainant in any manner;

c) not act in a manner injurious to the interest of the prosecution;

d) surrender their passports, if any, to the lower court within a week;

e) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

f) mark presence at the concerned Police Station on the first Sunday of every month between 10.00 a.m. and 3.00 p.m. for three months only;

g) furnish the present addresses of their residences to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residences without prior permission of this Court;

Applications are partly allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.