BHARATBHAI GHANSHYAMBHAI SHAH vs STATE OF GUJARAT

R/CR.RA/264/2013 JUDGMENT DATED: 06/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 264 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
✔
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BHARATBHAI GHANSHYAMBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/05/2026
JUDGMENT
1. By filing these revision application, the applicants have prayed
to quash and set aside order dated 03.12.2011 passed by the
Sessions Court in Sessions Case NO.371 of 2010 and further be
pleased to direct discharge of the petitioners in terms of Section
227 of the Code of Criminal Procedure, 1973.
2. Brief facts of the case are that the present revision
application arises from the order dated 03.12.2011 passed by
the learned Sessions Court in Sessions Case No. 371 of 2010,
whereby the application filed under Section 227 of the Cr.P.C.
for discharge came to be rejected. The case pertains to damage
caused to Sangemarmar Complex situated at Ambawadi,
Ahmedabad, during the devastating earthquake of 26.01.2001
measuring 7.9 on the Richter Scale, which caused widespread
destruction across the State of Gujarat. The complex comprised
two wings containing nine flats and was constructed between
1989 and 1991. One wing consisting of four flats suffered severe
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damage, whereas the other wing remained unaffected. The land
on which the complex was constructed originally belonged to Mr.
Shodhan, who had obtained the necessary permissions and
undertaken the development and construction activities. The
applicant had financed the superstructure construction and
subsequently occupied one flat, while two other flats stood in the
names of his wife and HUF. The record further indicates that
permissions, municipal payments, electricity connections and
ownership-related documents were in the name of Mr. Shodhan.
Certain construction agreements executed in the year 1992 were
entered into after completion of construction. The building had
remained occupied and in use by all residents, including Mr.
Shodhan, until the earthquake occurred in the year 2001.
3. Learned Advocate Mr. Thakkar, appearing for the
applicant, has submitted that the present applicant has no
connection whatsoever with the construction of the alleged
structure and was merely a financier. It is contended that there
is no material on record to indicate that the applicant was in any
manner engaged in the construction of the “Sangemarmar
Complex. It is further submitted that the building in question
suffered damage due to the high-intensity earthquake that
occurred on 26 January 2001, which was a natural calamity.
The structure comprised two wings connected by a common
staircase and lift, consisting of five apartments in one wing and
four in the other, and certain portions were damaged. The
construction had commenced in 1989 and was completed in
1991, nearly a decade prior to the earthquake. Therefore, the
damage cannot be attributed to any alleged act or omission on
the part of the applicant.
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3.1 Learned counsel has emphasized that there was no mens
rea or criminal intention on the part of the applicant. Moreover,
no material on record establishes any involvement of the
applicant in the construction activity. All permissions for
construction were obtained by one Mr. Jagdishchandra
Gordhandas Sodhan, the builder, who has consistently asserted
his ownership over the property. The record further reveals that
the said builder had applied for and obtained requisite
permissions from AUDA and had also filed affidavits before the
competent authorities affirming that he was the owner and had
undertaken construction on the concerned plot.
3.2 It is further submitted that Mr. Sodhan had executed an
indemnity bond declaring himself to be the holder of TP Scheme
No. 21, Final Plot No. 411, and had proposed construction on
the said plot in his capacity as owner. There is not even an iota
of evidence to suggest that the present applicant acted as a
builder at any point in time It is pointed out that as early as in
1991, prior to the earthquake, Mr. Sodhan had filed a caveat
before the City Civil Court at Ahmedabad against the present
applicant, categorically asserting that the applicant was merely
an unauthorized investor and that he himself was the sole owner
of the land. This further substantiates the applicant’s limited
role as a financier.
3.3 In view of the aforesaid, it is submitted that there exists no
nexus or involvement of the applicant in the alleged offence. The
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learned Sessions Judge has committed a serious error in
rejecting the discharge application by erroneously treating the
applicant as a builder and by impermissibly shifting the burden
upon the applicant to prove that he was not a builder, whereas
the burden squarely lies upon the prosecution to establish such
involvement. It is also submitted that the material on record,
including the FSL report, indicates that the actual builder had
carried out construction in deviation of the approved plan,
including additions such as a penthouse, terrace garden, and an
over-capacity water tank. In these circumstances, it is
respectfully prayed that the present application be allowed and
the applicant be discharged from the charges levelled against
him.
4. Learned APP has opposed the present application and
submitted that the applicant is specifically named in the FIR and
has played an active role not only in financing but also in the
construction of the building in question. It is contended that the
material collected during the course of investigation prima facie
indicates the involvement of the applicant in the alleged offence.
It is further submitted that the incident resulted in the
collapse/damage of the building, leading to the death of 11
persons. In view of the gravity and seriousness of the offence, the
role attributed to the applicant cannot be lightly brushed aside
at this stage. Learned APP has argued that the evidence on
record discloses sufficient grounds to proceed against the
applicant for offences punishable under Sections 304 and
120B(1) of the Indian Penal Code, as well as under the
provisions of the Gujarat Ownership Flats Act. It is submitted
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that whether the applicant had active participation in the
construction and whether there existed a criminal conspiracy are
matters which require appreciation of evidence and can only be
determined during the course of trial. Accordingly, it is urged
that no case for discharge is made out, and the present
application deserves to be rejected.
5. Having heard the learned advocates for the respective
parties and upon perusal of the record, it prima facie emerges
that the present applicant was merely a financier. The material
on record further indicates that one Mr. Jagdishchandra
Gordhandas Sodhan had obtained the requisite permissions,
asserted ownership over the property, undertaken the
construction of the flats, and executed the indemnity bond in his
own capacity. Notably, the charge-sheet does not disclose any
evidence to suggest that the present applicant was either the
owner, developer, or contractor of the said construction.
6. In order to invoke the provisions of Section 304 of the
Indian Penal Code, the prosecution is required to establish the
existence of mens rea , namely, knowledge or intention that the
act was likely to cause death. In the present case, the building is
stated to have collapsed due to a catastrophic earthquake after a
considerable lapse of time since its construction. It cannot be
ruled out that the structural integrity of the building may have
been affected over time due to age, environmental factors, and
the impact of the natural calamity.
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7. Even if the case of the prosecution is accepted at its face
value, there is no material to indicate that the applicant had any
knowledge or intention that such an unfortunate incident was
likely to occur. The essential ingredient of mens rea is thus
conspicuously absent.
8. It is a settled principle of law that where two views are
possible on the basis of the material available on record, the view
favouring the accused must be adopted at the stage of discharge.
In this regard, reliance may be placed on the decision in Ygesh
alias Sachin Jagdish Joshi vs. State of Maharashtra, (2008) 2
GLH 596 .
9. Before proceeding further, it would be apt to refer to
relevant provisions of law, which are quoted hereunder:-
“304. Punishment for culpable homicide not amounting to
murder.—
Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to
cause death,or with imprisonment of either description for a
term which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death.”
10. Before Section 30 4 can be invoked, the following
ingredients must be satisfied;
“(i) the death of the person must have been caused;
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(ii) such death must have been caused by the act of the accused
by causing bodily injury;
(iii) there must be an intention on the part of the accused
(a) to cause death: or
(b) to cause such bodily injury which is likely to cause
death (Part I);
(iv) there must be knowledge on the part of the accused that the
bodily injury is such that it is likely to cause death (Part II).”
11. In this regard, reference may also be made to the judgment
of the Hon’ble Supreme Court in State of Mahadev Prasad
Kaushik v. State of Uttar Pradesh , reported in (2008) 14 SCC
479 wherein the Supreme Court held that allegations of medical
negligence resulting in death should ordinarily be dealt with
under Section 304A IPC (rash or negligent act) rather than the
graver offence under Section 304 IPC (culpable homicide), unless
there is specific evidence of intention or knowledge.
12. In the backdrop of the above discussion, in the absence of
any material showing the involvement of the applicants in the
offence, the discharge application filed by the present applicants-
accused deserves to be allowed. The object of the discharge
mechanism occupy a crucial position within the judicial process.
It serves as a preliminary judicial filter that operates before the
formal commencement of the trial. Its primary purpose is to
ensure that the only cases supported by legal foundation
proceed to trial, whereby upholding fairness for the accused,
while preserving the judicial efficiency. It protects the individual
from being forced into the rigors of full criminal trial, when the
prosecution material does not disclose even prima facie case.
This mechanism is essential to uphold the constitutional values
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of personal liberty and constitutional safeguards, which prevents
the wastage of the judicial time and maintains balance between
the prosecution and the defence to eliminate frivolous
prosecution at the early stage. Discharge mechanism enhances
the public confidence in the judicial system.
13. Accordingly, the present revision application is allowed.
order dated 03.12.2011 passed by the Sessions Court,
Ahmedabad in Sessions Case No.371 of 2010, is hereby quashed
and set aside. Consequently, the discharge application filed by
the present applicant stands allowed and the applicant is
discharged from all the offences alleged against them. Rule is
made absolute. Interif relief, if any, stands vacated.
(HASMUKH D. SUTHAR,J)
ALI
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