SATYANARAYAN D BATTU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these revisions by the applicant-original accused under Sec.397 read with Sec.401 of Code of Criminal Procedure, 1973 ('the Code' for short) challenge common order dated 10-2-2011 passed below Ex.2 in Sessions Case Nos.136 of 2010 and 198 of 2010 respectively by the learned Addl. City Sessions Judge, Court No.12, Ahmedabad, whereby applications for discharge filed by the applicants from Criminal Case Nos.1488 of 2006 and 1534 of 2006 before the learned Metropolitan Magistrate Court, Ahmedabad, arising out of I.C.R.No.65 of 2001 and 67 of 2001 respectively registered with Ellisbridge Police Station were dismissed.

(2.) THE facts in short are that pursuant to devastating earthquake that occurred in the morning of 26-1-2001 in the entire State of Gujarat, Block No.A of Tagore Park Flats, Near Vishwakunj Society, Narayannagar Road, Paldi, Ahmedabad and certain portion of Shashwat Flats situated at 24, Pritamnagar Society, Behind Sadhana School, Ellisbridge, Ahmedabad, were collapsed causing death and injuries to several persons. It was alleged that due to poor quality of material used in the construction of those buildings, the buildings were collapsed and several persons were either died or sustained injuries and hence, complaints were lodged with Ellisbridge Police Station registered as C.R.I.Nos.65 of 2001 and 67 of 2001 respectively under various Sections of IPC, Gujarat Ownership of Flat Act as well as under the provisions of B.P.M.C. bye-laws and ISI Code inter alia alleging that the builders in collusion with other accused persons acted against the bye-laws and rule of Ahmedabad Municipal Corporation and police started investigation. At the end of investigation, as there appeared prima-facie case against the accused, charge sheets were submitted against the accused in the Court on 5-5-2008. THEreafter, case was transferred to the court of learned Metropolitan Magistrate where cases were numbered as Criminal Case Nos.1488 of 2006 and 1534 of 2006 and cases were committed to the Court of Sessions where they were numbered as Sessions Case Nos.136 of 2010 and 198 of 2010 respectively. THE applicant filed applications under Sec.227 of the Code before the learned City Sessions Court, Ahmedabad, for discharge. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, those applications were dismissed by the learned Addl. City Sessions Judge, Court No.12, Ahmedabad, vide common order dated 10-2-2011. Being aggrieved with the said order, present revisions have been preferred by the applicant-original accused.

(3.) IT is mainly submitted by learned advocate, Mr.Ravindra Shah for the applicant-accused that though the applicant was serving as Civil Engineer, the court below has failed to appreciate the fact that the applicant is a certified Diploma Civil Engineer. He was awarded Diploma Certificate by the Government Polytechnic at Ahmedabad and was a licensed Engineer with the Ahmedabad Municipal Corporation. IT is further submitted that he was a salaried Engineer working under Architect Mr.Bankim Pandya. His main duty was to make plan and submit before the Municipal Corporation for approval. No other role is attributed to him. IT is further submitted that he is not connected with the builder/organizer/developer regarding construction activity being put up at the site, however, court below has failed to appreciate the fact that it was not the case against the applicant that he was the owner or the builder, structural engineer, architect, site engineer, supervisor or clerk of works. IT is further submitted that builder Mr.Yunus Nabibhai Bagadia, a Civil Engineer by himself, was undertaking the project in which he had employed various agencies for construction activity of the flats. He was not entrusted with any duty to supervise the ongoing construction at the site. According to him, Mr.Shreyank Shashikant Dani employed by the builder was the Site Supervisor as reflected from the charge sheet dated 31-10-2004 wherein accused Mahendrabhai Fulchandbhai Shah was charge sheeted. However, a grave error has been committed by the court below in not considering the aforesaid facts. In view of the above facts, it is requested that the applicant may be discharged. IT is further submitted that role played by the applicant was to apply his seal and sign the plans to be submitted to the Ahmedabad Municipal Corporation being certified Engineer and no other role was played by the applicant. Moreover, it is not the case of the prosecution that the buildings were collapsed due to building plans being improper or improper structural design or improper construction of the structure of the buildings. IT is further submitted that owners/builders did not file the reports in the form of progress certificates with the Corporation as required by the bye-laws and did not give the completion certificates to show that the buildings were completed as per the approved plan. IT is also submitted that Building Use Permissions were not obtained by the owners/buildings of the collapsed building. IT is further submitted that owners/builders of the collapsed buildings constructed, completed and used the structure on their own and it might be due to construction of additional rooms and change of use causing additional load on the structure that would have resulted in consequent collapse of buildings in the earthquake. IT is further submitted that various agencies and contractors appointed by the builders were involved in the construction of the buildings who would visit the site and supervise the work of the concerned builders. The duties and responsibilities of the applicant being an engineer are stipulated under Clause (i) of Building Bye-laws Manual-I of the Ahmedabad Municipal Corporation which reads as under: