CHANDUBHAI ALIAS SAMAJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The brief facts of the present petition are as under :- Suryakiran Co-operative Housing Society is a registered body and members of the said society had undertaken the construction of the said premises. Suryakiran Co-operative Housing Society, Unit No.1 was completed and the construction of Unit No.2 was going on. The petitioner No.1 being the Chairman of the said Suryakiran Co-operative Housing Society was looking after the affairs of the society and originally accused No.3 Mambtaben was appointed as Architect and accused No. 2 was Structural Engineer and Designer. The society having completed the construction work of Unit No.1 had allotted the premises to the members after obtaining necessary permission and members were actually residing in Unit No.1. However, since the construction of Unit No.2 being in progress, the same was not occupied by any members but according to the case of the prosecution, some labourers were residing there. According to the case of the prosecution that on 26th January, 2001 witnesses the unprecedented havoc at the hands of nature keeping entire machinery of the Government inaticipating the outcome of such unimaginable earthquake in last 50 years where number of houses in different parts of the State of Gujarat grumbled to the ground resulting into unimaginable death and destruction of buildings. According to the prosecution case, that these accused had used materials of inferior quality and the normal requirements of observing the rules and procedure for constructing the high-rise buildings were totally neglected and resultantly, four labourers and one son of the member were died as result of the collapse of this building on account of earthquake witnessed on 26th January, 2001. However, so far Unit No.2 is concerned, no allotment letter has been issued by the petitioner in favour of any such member but in all 13 [ thirteen ] members were registered and part payments were made by all thirteen members to the petitioner and the petitioner had received said part payment from these thirteen members for Unit No.2. According to the petitioner, because the Unit No.2 which was in fact under construction, was collapsed and in all five persons have died and therefore a complaint is came to be registered on 19th February, 2001 by the concerned Senior PSI Shri K. S. Patel against (1) Chandubhai Haribhai Ardeshna, (2) Mamta Sanjay Shah and (3) Uttpal Sampatbhai Desai under Section 304-A, 337, 406, 420 read with Section 114 of the IPC, however, subsequently, Section 304 of IPC has been added on 23rd March, 2001 against the present petitioners. The present petitioner has filed Misc. Criminal Application No. 110 / 2001 before the concerned Sessions Judge, Valsad at Navsari under Section 439 of CrPC, 1973. The said application has been rejected by the concerned Sessions Judge, Valsad at Navsari on 3rd March, 2001, which has given rise to filing of this petition by the present petitioners. This Court has issued notice to the respondent - State, one Anilkumar Chhotubhai Desai, Circle Police Inspector, Bilimora has filed affidavit in reply on 28th march, 2001 against that rejoinder has been filed by the petitioner on 6th April, 2001.

(2.) I have considered the averments made in the present application and averments made in the reply as well as rejoinder and also considering the submission made by both the learned advocates, without deciding the merits of the matter and considering the request of both the learned advocates for the parties who requested not to pass reasoned order and therefore considering the matter and before passing the final order, according to my opinion, some observations made by the Apex Court as well as Division Bench of this Court while dealing with such application which are pertinent to quote in relevance of the facts and circumstances of this case which are reproduced as under :- Recently, the Apex Court in case of GAYA PRASAD V. PRADEEP SRIVASTAVA reported in (2001) 2 SCC page 604, para-19 observed as under :-

(3.) After considering the above observations as well as the averments made in the application as well as reply and rejoinder in such type of cases, it is the duty of the court to see and protect the interest of the persons who have become victim in such incident and simultaneously also to consider the fate of the persons who are behind the bar because of this incident.