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2019 DIGILAW 421 (GUJ)

Ashwinkumar Kishorilal Mittal v. State of Gujarat

2019-04-15

VIPUL M.PANCHOLI

body2019
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R.No.I– 196 of 2018 registered with Vastrapur Police Station, District Ahmedabad City, for the offence punishable under Sections 285, 308, 201 and 114 of the Indian Penal Code (‘IPC’ for short). 2. Heard Mr. S.V. Raju, learned Senior Advocate assisted by Mr. Dharamveersinh J. Solanki, learned advocate for the applicant, Mr. I.H. Syed, learned counsel, assisted by Mr. Prithu Parimal, learned advocate for the original first informant and Mr. J.K. Shah, learned Additional Public Prosecutor, for the respondent State. 3. It is mainly alleged in the FIR that there are total five towers in Shreeji Towers and Tower ‘A’ and Tower ‘B’ are attached with each other and below the said two towers, there are commercial shops and Towers ‘C’, ‘D’ and ‘E’ are 10 storeyed towers each and there are only residential flats in these three towers. It is alleged that on the ground floor of ‘A’ Tower, there are two shops viz. Hemant tyres of the ownership of the applicant herein and as per the register of the society, original accused Nos.4, 5 and 6 are the owners of the said shops. It is alleged that in the said shops, the applicant herein is doing business of tyres, tubes etc. It is further alleged that the basement of the said tower, which was being used by the society as club house cum store, the owners of the said shops have illegally got the said basement and have illegally obstructed the main entrance of Shreeji Towers by constructing a wall and have stored a large quantity of tyres in the basement of the said Tower. It is also alleged that the gates for ingress and egress to the society has been obstructed by storing huge quantity of tyres, tubes etc. It is thus alleged that the applicant herein and other accused persons in order to torture the residents of the society are keeping/storing such a large quantity of tyres, tubes etc., which was always objected to by the residents of the society and there is a long-lasting dispute for which several notices were also issued to the accused persons. It is thus alleged that the applicant herein and other accused persons in order to torture the residents of the society are keeping/storing such a large quantity of tyres, tubes etc., which was always objected to by the residents of the society and there is a long-lasting dispute for which several notices were also issued to the accused persons. 3.1 It is further alleged that on 17.09.2018, when the complainant was present at his home, at around 1.30 p.m., a massive fire took place at the basement of the ‘A’ Tower of Shreeji Towers. It is alleged that the occupiers of the said shops without informing the fire safety workers fled away from the place of fire. It is further alleged that almost around 200 residents got stuck in the said fire and all those residents were having serious breathing problem. It is further alleged that thereafter the residents of Shreeji Towers informed the Fire Safety Department and residents were taken out from their respective flats with great efforts and difficulties. It is also alleged that belongings of the residents of the said tower also got damaged and thus, a huge loss was caused to the residents of the Towers ‘A’ and ’B’. It is further alleged that the fire safety workers extinguished the fire with great difficulties as the occupiers of the said shops have not kept any way for going in the basement from where the fire got started. It is further alleged that the occupiers of the said shops have removed the gas cylinders and other explosives substances from the basement and have destroyed the evidence. It is further alleged that resident of Flat no.702 got burn injuries under his feet, for which, he had to take treatment in hospital for seven days. It is further alleged that Officers of the Insurance Company visited the place of fire which creates suspicion that the applicant herein and other accused persons have created the said fire intentionally with a view to get claim from the Insurance Company. It is under these circumstances that the FIR in question has been registered against the applicant and others. 4. It is submitted by the learned Senior Advocate for the applicant that the applicant is carrying on his business at the place in question since 1994. It is under these circumstances that the FIR in question has been registered against the applicant and others. 4. It is submitted by the learned Senior Advocate for the applicant that the applicant is carrying on his business at the place in question since 1994. The applicant has all the requisite permissions obtained from the Ahmedabad Municipal Corporation as well as from the Fire Safety Department. Learned advocate has referred the document produced at Page36 of the compilation. The Chief Fire Officer, Ahmedabad Municipal Corporation, has issued No Objection Certificate on 28.12.2017 in favour of the applicant. 4.1 It is, thereafter, contended that along with the shops in question, the applicant has purchased certain open space surrounding the shops from the original builder and, thereafter, certain disputes arose between the parties i.e. members of Shreeji Tower and the applicant. Therefore, proceedings are filed before the Board of Nominees i.e. Lavad Suit No.620 of 2008, in which, the Board of Nominees has passed an interim order in favour of the applicant. Learned Senior Advocate has referred the said order, which is produced at Pages6 and 7 of the compilation. 4.2 In the aforesaid background of the case, it is contended that the present applicant has filed Special Criminal Application No.8399 of 2018 before this Court, in which, a direction is sought against the concerned Police authorities for registration of FIR against the members of Shreeji Towers. Learned Senior Advocate has referred necessary details produced on record. It is thereafter contended that in the incident in question, nobody has received injury except one boy, who is residing at Seventh floor of the said Tower. The applicant has taken all precautions while carrying on his business in the basement and in the shops purchased by him and the co-accused. It is further submitted that when the samples were collected from the place of incident, the Assistant Chemical Examiner, Forensic Science Laboratory, has opined that presence of petroleum hydrocarbon is not seen or found. It is further submitted that from the CCTV footage collected from the shop, it reveals that firstly spark is seen in the basement and, thereafter, because of the shortcircuit, the incident has occurred. It is, therefore, urged that the applicants are falsely implicated in the incident in question. 4.3 Learned Senior Advocate has, thereafter, referred the provisions contained in Sections 285 and 308 of IPC. It is, therefore, urged that the applicants are falsely implicated in the incident in question. 4.3 Learned Senior Advocate has, thereafter, referred the provisions contained in Sections 285 and 308 of IPC. After referring to the aforesaid provisions, it is contended that provisions of Section 308 of IPC are not attracted in the facts of the present case. 4.4 Learned Senior Advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice. At this stage, it is pointed out that the applicant has cooperated with the Investigating Agency. 4.5 Learned Senior Advocate has, therefore, urged that looking to the facts and circumstances of the present case, this Court may exercise discretion in favour of the applicant. 5. On the other hand, learned Additional Public Prosecutor opposed this application and referred the averments made in the affidavitinreply filed by Shri M.M. Jadeja, Police Inspector, Vastrapur Police Station. After referring to the averments made in the said affidavit, it is submitted that the applicant and other co-accused have illegally occupied the basement of the Shreeji Tower and because of the acts and omissions of the applicant and other co-accused, the incident in question has occurred. It is, therefore, urged that looking to the seriousness of the matter, this Court may not exercise discretion in favour of the applicant. 6. Mr. I.H. Syed, learned advocate for the original first informant, has also supported the submissions canvassed by the learned Additional Public Prosecutor. He further submitted that the tyre can be burnt at the temperature of 400 degree Celsius and not at the natural temperature at the relevant time. It is submitted that the incident in question has occurred due to the mischief played by the applicant and other co-accused. The applicant and other co-accused have stored huge quantity of highly inflammable material like tyres (approximately 400 or more). Learned advocate has referred the photographs annexed with the affidavit-in-reply and submitted that because of the incident in question, the electric wiring of the Tower has been completely burnt and the outdoor units of split Acs were also burnt upto the third floor. Learned advocate has referred the photographs annexed with the affidavit-in-reply and submitted that because of the incident in question, the electric wiring of the Tower has been completely burnt and the outdoor units of split Acs were also burnt upto the third floor. 6.1 It is, therefore, urged that when the applicant and other co-accused have committed the alleged offence, this Court may not exercise discretion in their favour. He, therefore, requests that this application be dismissed. 7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is required to be noted that the FIR is registered under Sections 285 and 308 of the IPC. Section 285 of IPC reads as under: “285. Negligent conduct with respect to fire or combustible matter.—Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 8. Whereas Section 308 of IPC reads as under: “308. Attempt to commit culpable homicide.— Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” 9. If the provisions contained in Section 285 of IPC are carefully examined, it can be said that the punishment prescribed for the said offence is imprisonment for a term, which may extend to six years or with fine or with both. Section 285 refers negligence or negligent conduct with respect to fire whereas Section 308 provides for attempt to commit culpable homicide. Section 285 refers negligence or negligent conduct with respect to fire whereas Section 308 provides for attempt to commit culpable homicide. It is required to be noted that till today, the Investigating Agency has not applied Section 436 of the IPC. 10. From the material produced on record, it is revealed that during the course of investigation, the present applicant has cooperated with the Investigating Agency pursuant to the interim order dated 18.12.2018 passed by this Court. Statement of the applicant is also recorded on 27.12.2018 and the applicant has cooperated with the Investigating Agency. While granting interim protection to the applicant, this Court has specifically observed that prima-facie, it appears that the fire broke out due to short-circuit and there was no presence of petroleum hydrocarbon in the muddamal seized by the Investigating Agency. The concerned learned Additional Public Prosecutor was directed to file a detailed affidavit. Pursuant to the said direction, the concerned Investigating Officer has filed an affidavit before this Court, in which, it is specifically observed that on 30.11.2018, Shri N.K. Patel, Assistant Chemical Examiner, Forensic Science Laboratory, has opined that from the samples collected, presence of petroleum hydrocarbon is not seen or found. Copy of the said Report is also placed on record along with the affidavit. It is also required to be noted at this stage that the concerned Investigating Officer has also stated in the affidavit that from the CCTV footage collected from the shop, it is revealed that firstly spark is seen in the basement and, thereafter, incident in question has occurred. 11. This Court has also perused the No Objection Certificate issued by the Fire Officer of Ahmedabad Municipal Corporation, a copy of which is produced at Page36 of the compilation. Thus, from the material produced on record, this Court is of the view that when the applicant has cooperated with the Investigating Agency during the pendency of this application and prima-facie the incident in question has occurred because of the accident, custodial interrogation of the applicant is not required. Even otherwise, if the negligence is alleged against the applicant, maximum punishment prescribed for the said offence is six months. 12. Taking into consideration the facts of the case, nature of allegations, gravity of offence, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant. Even otherwise, if the negligence is alleged against the applicant, maximum punishment prescribed for the said offence is six months. 12. Taking into consideration the facts of the case, nature of allegations, gravity of offence, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at (2011) 1 SCC 694 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, as reported at (1980) 2 SCC 565 . 13. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R.No.I–196 of 2018 registered with Vastrapur Police Station, District Ahmedabad City, on his executing a personal bond of Rs.10,000/-( Rupees Ten Thousand Only) with one surety of like amount on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 26.04.2019 between 11.00 a.m. and 2.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; 14. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 15. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 16. Rule is made absolute to the aforesaid extent. Direct service is permitted.