AJAY NAIK DESSAI Vs. POLICE INSPECTOR

JUDGEMENT

(1.) Application is moved by the applicant/accused for the anticipatory bail under Section 438 of the Criminal Procedure Code. The applicant/accused is charged with the offences punishable under Sections 336, 337, 338, 304 read with Section 120-B of the Indian Penal Code and also under Section 7 read with Section 13(1)(a) read with 13(2) of the Prevention of Corruption Act, 1988.

(2.) It is the case of the prosecution that a ground plus four storey building collapsed at Canacona on 4/01/2014 leading to 31 casualties. The applicant/accused was holding a post of Municipal Civil Engineer at the relevant time. The building which collapsed was not complete though Occupancy Certificate was granted to the said building on 26/12/2013. The building was constructed for the residential purpose. However, when collapsed, it was not occupied for the purpose of residence. The persons who died and injured in the calamity were all labourers employed by the contractor. The sub quality building material was used without taking proper precaution in respect of foundation, so building was week. The building was standing on earth fill which was not solid. Thus, after the disaster, police visited to the spot and one Prashant Shirodkar, a Deputy Collector and S.D.M., Canacona, Goa gave the F.I.R. with Canacona police which is registered at Cr. No. 1/2014 on the same day i.e. on 4/01/2014. F.I.R. was registered against nearly 8 persons with name and unknown persons to the informant. It included the builder. contractor, supervisor, architect, engineers and persons from Town Planning Department. Thus, at the time of lodging of the F.I.R., instead of giving the names of the persons, the post or the persons having particular responsibility are mentioned as suspects. The name of the applicant/accused was included in the F.I.R. subsequently. The applicant/accused therefore apprehending the arrest in the said Cr. moved anticipatory bail application No. 33/2014 before the learned Sessions Judge, South Goa at Margao which was dismissed by order dated 20/01/2014. Hence, this anticipatory bail is preferred in the High Court.

(3.) The learned Counsel for the applicant/accused has submitted that the applicant/accused was working as a Municipal Civil Engineer in the Municipal Corporation of Canacona when the building collapsed i.e. on 4/01/2014. His assigned job was completely unconnected in respect of the structural calamity or the construction of the building. The learned defence Counsel has brought on record the relevant dates disclosing that the applicant/accused was posted as a Municipal Civil Engineer in Canacona Corporation on 1/07/2012. The plans were approved by the Municipal Authority on 28/05/2010. Construction licence was granted by Canacona Municipal Corporation on the same day i.e. on 28/05/2010. Thereafter, the plans were renewed on 3/11/2011. Thus, all these activities have taken place prior to the applicant taking charge of his post i.e. on 1/07/2012. The learned Counsel further submitted that the entire structure of the building was ready on 1/07/2012, when he took the charge and thus he had no occasion to supervise the construction of the building and, therefore, he is not responsible in respect of the structural stability of the building. It is pointed out that after fall of the building, the Government formed Investigating Committee to find out the reason of the collapse of the building. The said Committee compromised of four technical persons, who are supposed to be the experts in their fields submitted report on 8/01/2014 and as per their report the reason given was that the building was constructed on earth fill and the fill being held back by a large retaining wall, the building collapsed. The said retaining wall has deteriorated and tilted and the vertical cracks were developing progressively. The learned Counsel pointed out that in the report the experts have further mentioned the reasons for collapse of the building and it was most likely due to the sinking of the column footing and the grade of concrete and the quality seemed to be not adequate. The learned Counsel further submitted that thus the building collapsed as the foundation of the building was not solid and firm and for that reason the applicant/accused cannot be held responsible. To give structural stability certificate was not a function of the Municipal Civil Engineer but the structural stability certificate is given as per bye laws of The Municipal Council Building Bye-Laws and Regulations of 1987 by the structural engineer, who generally works for the contractor. The applicant/accused was working as a Municipal Civil Engineer in the Corporation and as per the case of the prosecution also he is not a person who issued the structural stability certificate. Learned Counsel took me through the provisions of building bye laws, the definition of the Municipal Civil Engineer, who is appointed under Section 72 of the Municipalities Act and also through the duties, which are to be performed by him. Learned Counsel has further submitted that while granting Occupancy Certificate, as per the accusations, he has wrongly calculated the area by increasing the area is shown. However, the learned Counsel pointed out that the applicant/accused in fact has pointed out the mistake in respect of the calculation of the built up area and has shown that built up area was more and, therefore, he calculated the difference of the licence fees for the area, which was not being taken in calculating the licence fees earlier. It was contended that this shows, on the contrary, that the applicant/accused was working honestly for the Corporation. He further submitted that there is no evidence to show that the applicant/accused has committed any offence much less the offence under Section 304 and 120-B of the Indian Penal Code. Prima facie there are no sufficient grounds to get the applicant/accused for the custodial interrogation and, therefore, prays for anticipatory bail.