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2020 DIGILAW 460 (GUJ)

State of Gujarat v. Vijaybhai Dashrathlal Shah

2020-03-16

A.S.SUPEHIA

body2020
JUDGMENT : A.S. SUPEHIA, J. 1. The present revision application emanates from the judgment and order dated 25.04.2006 passed by the Court of Additional Sessions Judge, City Sessions Court No. 9, Ahmedabad in Sessions Case No. 108 of 2006. 2. The offence came to be registered vide C.R. No. I-71/2001 for the offences punishable under Sections 304 and 120(B)(1) of the Indian Penal Code, 1860 (the IPC) and under Sections 3(2)(c)(d), 7(1)(i) (5)(2) read with Section 42 of the Gujarat Ownership of Flat Act, 1973 against the original accused-respondent. The original accused-respondent had preferred an application for discharge under Section 227 of the Code of Criminal Procedure, 1973 (the Code) below exhibit 1 in Sessions Case No. 108 of 2006 before the Additional Sessions Judge, City Sessions Court No. 9, Ahmedabad, who has granted the same vide order dated 25.04.2006 in favour of the original accused-respondent. 3. Learned Additional Public Prosecutor Ms. Shruti Pathak has submitted that the original accused-respondent is a Structural Engineer, having educational qualification of B.E. (Civil) and since the building of which he has prepared the drawing, had collapsed during the earthquake, the State had filed a criminal complaint for the afore-noted offences. She has submitted that due to the earthquake, which had occurred on 26.01.2001, the said building had collapsed and it was found that the same was prepared as per the specifications made by the original accused-respondent, who was Structural Engineer. She has also invited the attention of this Court to the statement recorded by the concerned Investigating Officer on 11.03.2001 of one Manan Pravinbhai Panchal. She has also pointed out the necessary report detailing the test report. She has submitted that as per the test report dated 20.08.2001, which was prepared by the Joint Director of National Council for Cement and Building Materials (the NCCBM), it is revealed that the building had collapsed due to the structural fault and hence, the discharged application could not have been entertained by the trial Court. She has submitted that as per the test report dated 20.08.2001, which was prepared by the Joint Director of National Council for Cement and Building Materials (the NCCBM), it is revealed that the building had collapsed due to the structural fault and hence, the discharged application could not have been entertained by the trial Court. She has invited the attention of this Court to the statement of one Harenbhai Rameshbhai Parekh, which was recorded by the Investigating Officer on 30.03.2001 and has submitted that the statement would reveal that the original accused-respondent was supervising the work and present when the construction was going on and hence, because of the structural work, the concerned building had collapsed, which resulted into the death of eight (08) persons and injury to five (05) persons. 4. Per contra learned advocate Mr. Nigam Shukla appearing for the original accused-respondent has submitted that the order does not require any interference. He has submitted that the trial court has precisely held that looking to the duties of the present original accused-respondent, who was Structural Engineer, he could not have been held responsible for the collapse of the building. He has further submitted that in fact various buildings had collapsed during the earthquake, which occurred on 26.01.2001. It is further submitted that in fact structural drawing specifications were submitted to the Municipal authorities by some other Engineer. 5. Learned advocate Mr. Nigam Shukla appearing for the original accused-respondent has submitted that in fact the service of the original accused-respondent was availed by the concerned builder before the actual construction was undertaken in order to match the specifications of the material, which was to be used in the building. He has submitted that in fact at the time of passing the plan, the Structural Engineer, Shri Mahendrabhai Kosthi, was engaged by the builder and accordingly, the plan was submitted by him. In response to the aforesaid submissions, learned Additional Public Prosecutor Ms. Pathak has submitted that in fact, the statement recorded by the Investigating Officer reveals that the applicant was present at the time of the construction and also supervising the same and hence it cannot be said that the original accused-respondent was not responsible for the poor construction. 6. Learned advocate Mr. Pathak has submitted that in fact, the statement recorded by the Investigating Officer reveals that the applicant was present at the time of the construction and also supervising the same and hence it cannot be said that the original accused-respondent was not responsible for the poor construction. 6. Learned advocate Mr. Nigam Shukla appearing for the original accused-respondent has submitted that in fact the other persons were also made accused in the collapsed of the building, however, either their complaints or charge-sheet were quashed by this Court and in some cases, the discharged orders were upheld by this Court. 7. I have heard the learned advocates for the respective parties. The concerned record and proceedings are also perused by this Court. 8. The evidence suggests that the applicant was the Structural Designer and was engaged by the concerned builder for construction work of Samyak Apartments in Ellis-bridge area, Paldi. On 26.01.2001, the devastating earthquake took place in various parts in Gujarat including the city of Ahmedabad, as a result, the entire building was collapsed and eight (08) persons died and other sustained injuries. It was alleged that due to structural fault, the aforesaid building had collapsed and accordingly, the same culminated into the complaint against the present applicant and Sessions Case No. 108 of 2006 was accordingly registered. The original accused-respondent had filed discharged application under Section 127 of the Code before the Additional Sessions Judge, City Sessions Court No. 9, Ahmedabad, who has granted the same vide order dated 25.04.2006 in favour of the original accused-respondent. 9. At this stage it would be apposite to incorporate the observations from the order of the Sessions Court, which are as under: “13. Looking to the FIR and charge-sheet, it is also main charge that the accused persons have used poor or substandard or low quality of material in the constitution, as a result in the massive earthquake, the building collapsed. But looking to the byelaws 16(4) (3) wherein, the duty of the supervisor and clerk of work is clearly laid down. If we peruse minutely the duties of the supervisor or the clerk of works, it is clear that the supervisor has to adhere to strictly to the structural drawing specification and written instruction of the structural designer and to follow the provision of the National Building Code or ISS. If we peruse minutely the duties of the supervisor or the clerk of works, it is clear that the supervisor has to adhere to strictly to the structural drawing specification and written instruction of the structural designer and to follow the provision of the National Building Code or ISS. It is the duty of the supervisor to see that adequate provision is made for ensuring the safety of the workers. It is also duty of the supervisor to bring to the notice of the structural designer any situation or circumstances which in his option is liable to endanger safety of workers or others. It is also provided that it shall be duty of the clerk of works to see that standard of specification and the workmanship as prescribed in the National Building Code are maintained during all the stages of the erection. In view of the aforesaid facts of the case when the main allegation is regarding using the poor quality in the construction, and there is no doubt that while carrying out the construction, the liability is fastened on the builder or supervisor or clerk of works, but not on the part of the structural designer or architect. Mr. Pathak has submitted that after submission of plan, the work or function of the architect or structural designer comes to an end. No doubt, in many cases, it happens that builder or supervisor may invite while some stages of erection to visit the structural designer. However, when the duties are clearly enumerated in the byelaw, as discussed aforesaid, it is the duty of the supervisor or the clerk of works to see that as per the code and byelaw and design, the work is being carried out. It also requires to be noted that under the byelaw in Form No. 5 after completion of the building, supervisor and clerk of works are jointly required to give a certificate under their signatures that work has been completed as per the design and the code under their supervision and work has been executed to their best satisfaction and as per approved plan and design or structural design and the work is also carried out as per specification and no clause of the Act or byelaws is breached during the execution. 14. 14. In view of the aforesaid discussion, if we see the aforesaid form No. 5 of the byelaws, then the duty statutorily lies upon the supervisor or the clerk of works. This Court fails to understand as to how the applicant is being structural designer can be said to have been negligent or rash who can be punished under Section 304(A) of the I.P.C. or allied sections since there is no material at all which may inspire this Court qua the accused persons to be tried. It is dangerous to involve the applicant having no sufficient material against him. Therefore, this Court is of the humble and considered opinion that if the applicant is tried, the applicant shall be unnecessarily dragged into the trauma of trial. Since there is no material, the applicant cannot be said to have been negligent in collapsing of the building in the earthquake and looking to the duties of the supervisor, clerk of works, builder etc. It is quite difficult to charge the applicants having no material as accused aforesaid.” 10. The original accused-respondent was charged with the offence under Section 304(A) of the IPC. A Coordinate Bench of this Court in the judgment and order dated 16.10.2015 passed in Criminal Misc. Application No. 9298 of 2014 in an identical allegations, wherein one of the architects was charged for collapse of eight storied buildings at Ghoddod Road, Surat, which was constructed in the year 1998 and was collapsed in the year 2014, has quashed the criminal complaint by observing thus: “12. In Syed Akbar vs. State of Karnataka, (1980) 1 SCC 30 , it was held that “where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews vs. Director of Public Prosecutions, (1937) 2 All ER 552, simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied ‘reckless’ most nearly covers the case.” 13. According to the dictionary meaning ‘reckless’ means ‘careless’ and ‘regardless’ or heedless of the possible harmful consequences of one's acts. Probably, of all the epithets that can be applied ‘reckless’ most nearly covers the case.” 13. According to the dictionary meaning ‘reckless’ means ‘careless’ and ‘regardless’ or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. vs. Briggs, (1977) 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act. 15. The decision of R. vs. Caldwell (supra) has been cited with approval in R. vs. Lawrence, (1981) 1 All ER 974 and it was observed that: “........Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it.” 41. Mere negligence or rashness is, therefore, not enough to bring a case within the ambit of Section 304A I.P.C. Negligence or rashness proved by evidence must be such as should necessarily carry with it a criminal liability. Whether such liability is present may depend on the degree of culpability having regard in each case to the particular time, place and circumstances. Whether such liability is present may depend on the degree of culpability having regard in each case to the particular time, place and circumstances. If it is merely a case of compensation or reparation for injury or damage caused to a person or property, it is clearly not punishable under either of the sections. The culpability to be criminal should be such as concerns not merely the person injured or property damaged but the safety of the public on the road. But the nature and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence under the sections. 45. It follows from the above that as far as the sphere of criminal liability is concerned, as mens rea is not abandoned, the subjective state of mind of the accused lingers a critical consideration. In the context of criminal law, the basic question is quite different. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? This is a very different question from the civil context and must be answered in terms of mens rea. Only if a person has acted in a morally culpable fashion can this question be answered positively, at least as far as non strict liability offenses are concerned.” 11. The Court has held that the ingredients of Section 304(A) of the IPC would not get attracted in such cases since the necessary ingredients of negligence and rashness, which are the essential elements under Section 304(A) of the IPC would not get satisied in such cases. Similarly, in case of State of Gujarat vs. Nileshkumar Rupaji Baranda (passed in Criminal Revision Application No. 78 of 2008 judgment dated 15.03.2017) while examining the similar set of facts of collapse of building, in case of the architect, who was charged for the similar offence, in the building, which had collapsed during the earthquake, resulting the death of seven (07) persons, this Court has held thus: “15. It appears from the byelaws reproduced above that the respondents-accused as employees of the Corporation are not directly responsible for day-to-day construction activities of the buildings. They are also not concerned with sanctioning of the plan, design or to see whether inferior quality of material is used in the construction of the building or not. It appears from the byelaws reproduced above that the respondents-accused as employees of the Corporation are not directly responsible for day-to-day construction activities of the buildings. They are also not concerned with sanctioning of the plan, design or to see whether inferior quality of material is used in the construction of the building or not. It also appears that as and when an application for occupation permission is made accompanied by a declaration of the owner that the work on the building is completed as per the approved plan and as per byelaw of the Corporation under the supervision of the Supervisor, the Supervisor shall issue a certificate to the effect that the construction was carried out under his supervision as per the designed plan and is complete in all respects. He shall also certify that the materials used in construction are according to the specified standards and the buildings are safe for occupation. Thus, it is clear that it is the Supervisor or Clerk of Works who would be mainly responsible for any negligence in he construction activities of the buildings and the respondents-accused being Ward Inspectors and Structural Engineer cannot be held liable for any negligence in regard to the same. Thus, they cannot be fastened with the liability of collapse of the building being employees of the Corporation and hence, case of the present respondents are entirely different from that of the Supervisors or Clerk of works. 16. This Court has also perused the decisions of this Court in Criminal Revision Application No. 422 of 2006, Criminal Revision Application No. 397 of 2006 and allied matters, Criminal Revision Application No. 396 of 2006 and allied matters, Criminal Revision Application Nos. 705 of 2006 and allied matters, Criminal Revision Application Nos. 395 of 2006 and allied matters and Criminal Revision Application Nos. 418 of 2006 and allied matters, wherein this Court has adopted view to allow discharge to the accused involved in such type of offence. 17. From the entire papers of charge sheet and the documents annexed thereto, there is nothing to implicate that the respondents are liable or responsible for any of the offences levelled against them. No grave suspicion is made out against the respondents for framing of charge either. 17. From the entire papers of charge sheet and the documents annexed thereto, there is nothing to implicate that the respondents are liable or responsible for any of the offences levelled against them. No grave suspicion is made out against the respondents for framing of charge either. In view of the above, taking into consideration nature of their duties, this Court is of the prima facie opinion that there is no sufficient grounds to proceed with the trial against the respondents and hence, they were rightly discharged by the learned Additional City Sessions Judge. Since no irregularity or illegality as having committed in arriving at the said findings has been noticed by this Court, these revisions are required to be dismissed.” 12. The Coordinate Bench of this court upheld the order of discharge of the accused, who was serving as Structural Engineer and Ward Inspectors of the Corporation. The criminal revision filed by the State, was dismissed by the Coordinate Bench of this Court. 13. This Court has also perused the test reports of the Joint Director of the NCCBM. The report also reveals that the foundation appeared to be sallow and accenticity of water tank and massive must have triggered the failure of the buildings. The main allegation is regarding use of poor material in the construction and the liability fastened on the builder or supervisor or clerk of work, but not on the part of the structural designer or architect. 14. As discussed by the trial court, under the bylaws in Form No. 5, after completion of the building, supervisor and clerk of work are jointly required to give a certificate under their signatures that the work has been completed as per the design and the code under their supervision and work has been executed to their best satisfaction and as per approved plan and design or structural design and the work is also carried out as per specification to the National Building Code and the material used for the building construction is of quality, satisfaction and specification. Thus, the trial court has held that main duty lies on the supervisor or the clerk of works supervisor cannot be to be negligent or rash, which would ingredients of Section 304(A) of the IPC since test report also does not in any manner directly implicate the original accused-respondent in default of structural design and hence, while exercising the revisional powers under Sections 397 and 401 of the Code, this Court does not find any perversity or illegality in the findings of the trial court and hence, the present revision application fails and the same is hereby dismissed.