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2020 DIGILAW 446 (GUJ)

Babubhai Chaganbhai Patel v. State of Gujarat

2020-03-12

B.N.KARIA

body2020
ORDER : 1. The present appeal under Section 14-A of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as well as under Section 439 r.w. Section 482 of the Criminal Procedure Code, 1973 is filed for regular bail in connection with the FIR being Part-A-11191065200094 registered with Narol Police Station, Ahmedabad (Rural) for the offence punishable under Sections 304 and 114 of the Indian Penal Code, 1860. 2. The facts in narrow compass as could be gathered from the memo of the appeal, are required to be setout as under for deciding the present appeal. 2.1 The appellant is serving as H.O.D. Shirting Department in the company named as Nandan Denim Company. The said company is engaged in the business of cloth manufacturing and having its factory located at Piplaj Pirana Road, Narol, Ahmedabad. 2.2 It is stated that on 8th February 2020 at about 17:30 hours, all of a sudden fire broke out in the terrace of the production department of the Shirting Department and the workers working on the first floor managed to escape from the premises. It is stated that as there is only one door at the first floor where the fire broke-out, some workers could not manage to get out from the place of fire. The General Manager of the company had called the fire brigade immediately. The fire fighters had started extinguishing the fire, but due to excessive smoke and dire seven workers were trapped inside the factory premises, where the fire took place. 2.3 It is stated that at the time when the fire fighters conducted a search inside the factory premises, they found five decomposed burnt bodies which could not be identified and the same were sent to the hospital for conducting postmortem and drawing DNA for the purpose of identification of the dead bodies. On the next day i.e. on 9th February 2020 another decomposed burnt body was discovered and the same was also sent to the hospital for postmortem as well as for drawing DNA for the identification purpose. 2.4 It is stated that as per the reports of the FSL team, who were called to find out the cause of fire, the fire broke out because of the negligence of the accused persons and other responsible persons of the factory. 2.4 It is stated that as per the reports of the FSL team, who were called to find out the cause of fire, the fire broke out because of the negligence of the accused persons and other responsible persons of the factory. It is alleged that the shade of the shirting department was built with the support of sheets and without fire safety. It is also alleged that there was only one staircase to go up from the basement to the first floor and that too had one exit door only. 2.5 It is further alleged that there was no emergency exit or windows or lift in the department. It is also alleged that there were no proper arrangement for safety by the accused and no arrangement for safety can be dangerous for the workers working in the factory. Due to such allegation in the report of the FSL team, FIR has been lodged against the present appellant. 2.6 The appellant by way of preferring Criminal Misc. Application No. 514 of 2020 had approached the learned 8th Additional Sessions Judge, Ahmedabad (Rural) for regular bail. However, the said application came to be rejected vide order dated 20th February 2020 by the learned 8th Additional Sessions Judge, Ahmedabad (Rural). 2.7 The appellant being aggrieved and dissatisfied with the said order dated 20th February 2020 passed by the learned 8th Additional Sessions Judge, Ahmedabad (Rural) has preferred the present appeal for regular bail. 3. Heard Mr. S.V. Raju, learned senior counsel appearing for the appellant and learned PP for the respondents. 4. It is submitted by the learned Senior Counsel appearing for the applicant that the present appellant is falsely involved in the offence by the prosecution, however, there is no specific role of the present appellant in the untoward incident occurred on 8th February 2020. 5. It is contended by the learned senior counsel for the appellant that separate fire safety was arranged by the company and safety team was also equipped with all the required fire extinguishing equipment, which were regularly maintained and checked by the concerned authorities. It is further contended that out of three fire tenders, one fire tender was stationed right outside the place where the fire broke out. It is further contended that out of three fire tenders, one fire tender was stationed right outside the place where the fire broke out. It is also submitted that within no time, fire tender of the company reached where the fire broke-out and they immediately acted upon to get control over the fire. 6. It is contended by the learned senior counsel for the appellant that the company is certified with all mandatory certificates issued by the concerned authorities in respect of the fire safety. It is also contended that there is no ingredients to attract Section 304 of the Indian Penal Code as the petitioner had no knowledge of the situation, which would lead to death or such serious injury, which would cause death of any person. It is further submitted that the company is used to conduct mock fire drills regularly. It is also submitted that prompt steps were taken by the factory persons present at the place to get control over the fire. 7. It is submitted by the learned senior counsel for the appellant that FIR itself shows that no offence much less to the gravity of Section 304 of the IPC is attracted against the present appellant. It is submitted that there was no negligence on the part of the present appellant, which caused the death of the workers. It is further submitted that there was no intention of the appellant shown in the complaint and he is falsely implicated in the offence of unfortunate incident. 8. Learned senior counsel for the appellant submitted that in the complaint, no provision of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were attracted by the complainant. Thereafter, separate report was submitted by the Police Inspector to add Section 3(2)(5) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the offence on next day of lodging the complaint. In the report, it was stated that out of seven persons, who were burnt in the incident, one person was Bhalabhai Danabhai Makwana, who was serving with the company of the appellant and succumbed to the injuries. During the identification of the deceased, statement of Mr. Pravinbhai Danabhai Makwana was recorded and who informed that deceased was his brother. In his statement, it was found that deceased Bhalabhai Makwana was from a scheduled caste. During the identification of the deceased, statement of Mr. Pravinbhai Danabhai Makwana was recorded and who informed that deceased was his brother. In his statement, it was found that deceased Bhalabhai Makwana was from a scheduled caste. A xerox copy of the Caste Certificate was produced by his brother and therefore, complainant requested to add Section 3(2)(5) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In face, in the complaint, there is no allegation made against the appellant that with a knowledge and/or mens rea on the part of the appellant, any offence was committed under the provisions of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Further, it is argued that appellant has approached this Court by preferring Criminal Misc. Application no. 3435 of 2020 inter alia praying for quashment of section addition report dated 9th February 2020 and this Court vide order dated 17th February 2020 was pleased to observe that “....There is no evidence or material pointing out during the course of the hearing that an incident in question is done with knowledge and/or mens rea on the part of the applicants and further no any such allegation is made in the F.I.R. Therefore, the applicability of the provisions of SC/ST Act is doubtful.” Notice was issued by this Court against the respondent with a clarification that the charge-sheet shall not be filed without prior permission of the Court. Hon'ble Apex Court in the case of (2008) 12 SCC 531 has held that in order to make-out an offence under Section-3 of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the complainant is required to allege that the accused was not a member of scheduled caste or scheduled tribe and he intentionally committed the offence under IPC in question. If we consider the compliant lodged by the respondent no. 2 against the appellant, it is no where stated any ingredients of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 9. It is further contended by the learned senior counsel for the appellant that there is no ingredient for attracting any provisions under Section 3(4)(5) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is further submitted that the lump-sum compensation amount of Rs. 15,00,000/- was paid by the company to the relative of each of the victim concerned. It is further submitted that the lump-sum compensation amount of Rs. 15,00,000/- was paid by the company to the relative of each of the victim concerned. The allegations made in the complaint are false and baseless. It is further submitted that no prima facie case was made-out by the prosecution to involve the present appellant in the offence. Learned senior counsel for the appellant has referred to the photographs of fire tender of the company, certificates issued by the different authorities in respect of the fire safety of the company, observation report of the mock drill etc. 10. In support of the argument, learned senior counsel has relied upon the following judgments/orders: (1) Sunil Bharti Mittal vs. Central Bureau of Investigation, (2015) 4 SCC 609 (2) S.K. Alagh vs. State of Uttar Pradesh and Others, (2008) 5 SCC 662 (3) Maksud Saiyed vs. State of Gujarat and Others, (2008) 5 SCC 668 (4) Hasmukh Kalidas Choksi vs. State of Gujarat, Criminal Misc. Application No. 12217 of 2004 (5) Arshibhai Meramanbhai Gorsera vs. State of Gujarat, Criminal Misc. Application No. 10391 of 2018 (6) Rameshkumar Shankarlal Shah vs. State of Gujarat, Special Criminal Application (Quashing) No. 304 of 2015 (7) Ambalal D. Bhatt vs. State of Gujarat, (1972) 3 SCC 525 (8) Madhavjibhai Dhanjibhai Patel vs. State of Gujarat, Criminal Misc. Application (for Quashing) No. 9490 of 2014 (9) Girishbhai Maganlal Pandya vs. State of Gujarat, Criminal Misc. Application (for Quashing) No. 2942 of 2014 (10) Dipakbhai Ishwarbhai Naik vs. State of Gujarat, Criminal Misc. Application No. 18105 of 2019 (11) Sanjaykumar Laxminarayan Acharya vs. State of Gujarat, Criminal Misc. Application No. 18327 of 2019 (12) Kirtikumar Jitubhai Mod vs. State of Gujarat, Criminal Misc. Application No. 20100 of 2019 11. Learned senior counsel referred to no objection certificate issued by the Ahmedabad Municipal Corporation dated 29th February 2020, letter of Ahmedabad Municipal Corporation dated 11th March 2020 and requested to release the present appellant on bail in connection with the FIR being Part-A-11191065200094 registered with Narol Police Station, Ahmedabad (Rural) for the offence punishable under Sections 304 and 114 of the Indian Penal Code, 1860. 12. Mr. Mitesh Amin, learned PP for the respondent no. 1-State and 2 strongly opposed the argument advanced by the learned senior counsel for the appellant and submitted that in the unfortunate incident, 7 persons lost their lives. 12. Mr. Mitesh Amin, learned PP for the respondent no. 1-State and 2 strongly opposed the argument advanced by the learned senior counsel for the appellant and submitted that in the unfortunate incident, 7 persons lost their lives. It is submitted that the investigation is under progress and charge-sheet is not filed. It is further submitted that from the police papers available with the prosecution, prima-facie involvement of the appellant is clearly made-out by the prosecution. Referring to the papers, it is submitted that no separate actions were taken by the appellant. 13. Learned PP for the respondent no. 1-State and respondent no. 2 further submitted that there was only one gate available in the premises where the fire took place. It is contended that the workers working were not able to escape from the gate. Referring to the compilation, learned PP submitted that there was only one lift, which was used for transportation of the goods and not for the workers. It is also submitted that no sufficient facility of extinguishing were available in the company and therefore, 7 persons lost their lives. Referring to No Objection Certificate dated 29th February 2020 issued by the Ahmedabad Municipal Corporation, learned PP further submitted that necessary equipments of Sprinkler, Exit, Emergency Exit, Emergency window, Monkey Ladder as well as Emergency light were not available at the relevant point of time when the fire took place in the company. 14. Referring to the earlier No Objection Certificate in favour of the company, learned PP submitted that all these equipments were not available when the fire took place i.e. on 8th February 2020. It is submitted that on account of failure to preserve necessary equipment of extinguishing the fire, this incident was happened wherein 7 persons lost their lives. It is submitted that the appellant is involved in serious offence punishable under Section 304 of IPC and therefore, no lenient view should be taken by the Court. Hence, it was requested by the learned PP to dismiss the present appeal. 15. Learned PP further submitted that in the similar facts of the case, this Court has dismissed the prayer of one of the co-accused in Criminal Misc. Application No. 18198 of 2019 by an order dated 6th December 2019. It is also submitted that the said order of this Court was challenged by the respective petitioner in SLP no. 15. Learned PP further submitted that in the similar facts of the case, this Court has dismissed the prayer of one of the co-accused in Criminal Misc. Application No. 18198 of 2019 by an order dated 6th December 2019. It is also submitted that the said order of this Court was challenged by the respective petitioner in SLP no. 11530 of 2019 wherein Hon'ble Apex Court also declined to accept the prayer made by the respective petitioner. It is further contended that prima facie involvement of the appellant is established in the offence and therefore, it was requested by the learned PP to dismiss the appeal. 16. It is submitted by the learned PP that in the said company four such incidents were taken place in past and all the incidents were registered as accidental death before the Vatva/Narol Police Station. It is submitted that the appellant is aware of such kind of offence and under an impression that after committing the offence, he would be released on bail. It is contended that though such four incidents were taken place in past, no necessary precautions were made available by the appellant in the company. 17. Mr. Vijay Shah, learned advocate appearing on behalf of the victim has submitted that compensation was received by the family members of the deceased and victim of the deceased has no objection if the appellant would be released on bail by this Court. 18. Having considered the facts of the case, submissions made by the learned senior counsel as well as learned PP, it appears that on account of the alleged incident dated 8th February 2020 at about 17:30 hours, the complaint was lodged on 9th February 2020 against six persons including the present appellant. From the contents of the complaint, it appears that on 8th February 2020 before 17:30 hours a fire broke-out in the terrace of the production department of Shirting department, where some of the workers were working on the first floor. There was only one door at first floor where fire broke-out. Some of the workers working at first floor could not manage to get-out. It appears that somebody informed about the fire and fire fighters started extinguishing the fire. As per the allegations made in the complaint due to excessive smoke and fire, seven workers got dead inside the factory premises. Some of the workers working at first floor could not manage to get-out. It appears that somebody informed about the fire and fire fighters started extinguishing the fire. As per the allegations made in the complaint due to excessive smoke and fire, seven workers got dead inside the factory premises. Five decompose and burnt bodies were found and they could not be identified. Thereafter, another decompose dead body was discovered on 9th February 2020. As per the allegations, shed of the shirting department was built with the support of sheets without fire safety. There was only one staircase to go to basement to first floor and had only one exit door. 19. As per the allegation, the present appellant and co-accused did not take care of proper safety arrangement and in the event of fire accident, such improper arrangements can be dangerous for the workers working in the factory. It appears from the documents produced on record by the appellant that fire extinguishing equipments were maintained and checked by the concerned authority. There were three fire tenders available with the appellant company and one fire tender immediately started to control over the fire. The fire brigade was also informed by the concerned person of the company to take control over the fire. It also appears from the record produced before the Court that Ahmedabad Municipal Corporation has issued NOC in favour of the company on 18th February 2019 confirming that company has installed necessary fire protection, equipments. The observation report of mock drill taken place on 13th October 2019 was also produced on record. 20. After the incident, on 29th February 2020, the Ahmedabad Municipal Corporation has issued another NOC in favour of the company and observed that company has to install all fire protection equipments. On 11th March 2020, the Ahmedabad Municipal Corporation has restored the license issued in favour of the company-present appellant. The present appellant is working as H.O.D. Shirting Division. 21. In case of Ambalal D. Bhatt vs. State of Gujarat, (1972) 3 SCC 525 Hon'ble Apex Court has observed in Para-10 as under: “10. On 11th March 2020, the Ahmedabad Municipal Corporation has restored the license issued in favour of the company-present appellant. The present appellant is working as H.O.D. Shirting Division. 21. In case of Ambalal D. Bhatt vs. State of Gujarat, (1972) 3 SCC 525 Hon'ble Apex Court has observed in Para-10 as under: “10. It appears to us that in a prosecution for an offence under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death.” 22. In case of S.K. Alagh vs. State of Uttar Pradesh and Others, (2008) 5 SCC 662 the Hon'ble Apex Court has held that Vicarious liability cannot be fastened on MD, Director or other officers of a Company, wherein accused is involved in commission of offence under Section 406 of IPC. It was further held that Code does not cast vicarious liability on a party not directly charged for commission of an offence, unless specifically provided therefor. 23. In case of Maksud Saiyed vs. State of Gujarat, (2008) 5 SCC 668 Hon'ble Apex Court in Para-13 has held as under: “13.......The penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. As to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence.” 24. The Hon'ble Apex Court in case of Sunil Bharti Mittal vs. Central Bureau of Investigation, (2015) 4 SCC 609 has observed in para nos. 42 and 43 as under: “42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens-rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens-rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.” 25. This Court in Criminal Misc. Application No. 18198 of 2019 in similar facts of the case, wherein 22 students were expired on account of no fire safety equipments were installed on the terrace of the building, denied the grant of bail by an order dated 6th December 2019 to petitioner. The Hon'ble Apex Court in SLP No. 11530 of 2019 has also accepted the order passed by this Court with a liberty to the petitioner to move an application for bail after the stage of framing of charge is completed. 26. In the similar offence, this Court has granted prayer for bail in three different Criminal Revision Application being Criminal Misc. Application No. 18105 of 2019, Criminal Misc. Application no. 18327 of 2019 as well as Criminal Misc. Application No. 20100 of 2019 by order dated 3rd December 2019, wherein 22 students were died in such incident. 27. From the papers available on record, there is no sufficient evidence of active role of the present appellant coupled with criminal intent is proved. This Court in Special Criminal Application (Quashing) No. 304 of 2015 in a similar offence u/s. 304 of IPC has allowed the petition and quashed the FIR for the offences punishable u/s. 304, 120(b) r.w. 114 of IPC. 28. Considering the facts of the present case, papers produced on record and the arguments canvassed by the learned counsel for the respective parties, as well as, learned PP on behalf of the respondent no. 28. Considering the facts of the present case, papers produced on record and the arguments canvassed by the learned counsel for the respective parties, as well as, learned PP on behalf of the respondent no. 1-State, this Court is of the view that there is no active role of the present appellant and no vicarious liability of the present appellant is established in the unfortunate incident. 29. In the result, the present appeal is allowed. The impugned order dated 20th February 2020 passed in Criminal Misc. Application No. 514 of 2020 by the learned 8th Additional Sessions Judge, Ahmedabad (Rural) is hereby quashed and set aside and prayer made in Para-7(b) is granted. The appellant is ordered to be released on regular bail in connection with FIR being Part-A-11191065200094 registered with Narol Police Station, Ahmedabad (Rural) for the offence punishable under Sections 304 and 114 of the Indian Penal Code, 1860 on his executing personal bond of Rs. 10,000/- (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 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 the State of Gujarat without prior permission of the Sessions Judge concerned. (e) furnish the present address of their 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. 30. The authorities will release the appellant 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. 31. 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. 32. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the appellant on bail. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 32. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the appellant on bail. If any breach of conditions is made by the appellant, the bail granted by this Court would be cancelled. 33. The appeal is allowed in the aforesaid terms. Direct service permitted.