LALITBHAI KESHUBHAI VADHER vs STATE OF GUJARAT

R/CR.MA/5966/2014 JUDGMENT DATED: 29/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5966 of 2014
With
CRIMINAL MISC.APPLICATION (FOR EXTENSION OF INTERIM RELIEF)
NO. 2 of 2022
In R/CRIMINAL MISC.APPLICATION NO. 5966 of 2014
With
R/CRIMINAL MISC.APPLICATION NO. 10138 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
YES
==========================================================
LALITBHAI KESHUBHAI VADHER
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance in Criminal Misc. Application No.5966/2014
LD SR ADV MR J M PANCHAL ASSISTED BY MR K J PANCHAL(2422) for
the Applicant(s) No. 1
MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED for the Respondent(s) No. 2
Appearance in Criminal Misc. Application No.5966/2014
LD SR ADV. MR B S PATEL ASSISTED BY MR K J PANCHAL for the
applicant.
MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================
CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 29/06/2026
COMMON JUDGMENT
1. These applications have been preferred under Section
482 of the Code of Criminal Procedure seeking
quashment of the FIR being I-C.R. No. 38 of 2013
registered with Junagadh B-Division Police Station, as
well as the charge-sheet dated 01.03.2014 filed in
connection therewith for the offences punishable under
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Sections 304, 308, 337, 465, 471, 201, 34 and 120B of
the Indian Penal Code, wherein the present applicant
has been arraigned as accused No. 12.
1.1. As per the allegations contained in the FIR as well as the
charge-sheet submitted by the Police Sub-Inspector,
Junagadh B-Division, and further investigation carried
out by the Police Inspector, Crime Branch, Junagadh, it
is alleged that the A-Wing of a building known as
“Monarch-2,” situated at Raiji Baug, Junagadh, bearing
Revenue Survey No. 253/1 paiki-1/paiki-3, Block No. 1,
collapsed, resulting in the death of two persons and
injuries to six others. According to the FIR, the collapse
of the building was attributed to poor construction
quality. It is further alleged that the premises were being
used by labourers for furniture-related work, and that
excavation had been carried out in the parking area due
to the absence of proper drainage facilities, which also
contributed to the collapse. Initially, eight persons,
stated to be partners of Mars Developers, were named
as accused in the FIR. Subsequently, upon completion of
investigation, a charge-sheet came to be filed against 14
accused persons, including the present applicant, which
is the subject matter of challenge in the present
proceedings before this Court.
2. Heard learned senior advocate Mr. J.M. Panchal, learned
senior advocate Mr. B. S. Patel with learned advocate
Mr. K.J. Panchal and learned APP Mr. Ronak Raval for
the State.
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Submissions of the learned advocate for the applicant in
Criminal Misc. Application No.5966 of 2014.
3. Learned Senior Advocate Mr. Panchal, appearing for the
applicant, submits that the charge-sheet filed against the
present applicant who has been arraigned as Accused
No. 12, also cites the applicant as Witness No. 82 in the
very same charge-sheet. It is further submitted that the
incident in question occurred on 10.02.2013, the FIR
came to be lodged on 11.02.2013, and after a lapse of
nearly one year, the charge-sheet was filed on
01.03.2014. Even the supplementary charge-sheet filed
against the other accused reflects a similar position.
Learned Senior Advocate Mr. Panchal further submits
that the present applicant has been serving with the
Junagadh Mahanagar Palika since 1984, initially as an
Overseer, thereafter promoted as City Engineer, and
subsequently as Executive Engineer. It is contended that
the applicant has maintained an unblemished service
record and has discharged his duties diligently, and no
departmental inquiry has ever been initiated against him
during his tenure.
3.1. It is submitted that, as per the investigation and the
charge-sheet, the allegation against the applicant
pertains to an alleged conspiracy with the builders in
granting development permission in absence of requisite
documents such as soil test report, foundation design,
frame work design, steel design, slab design, progress
reports, slab design and Form Nos. 6(A), 6(B), 6(C), and
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6(D). It is contended that the development permission
was granted upon a recommendation, wherein the
applicant, along with the Town Planning Officer and the
Commissioner, had signed the checklist for building
permission. Learned Senior Advocate submits that the
collapse of the building occurred due to excavation
carried out in the basement using heavy machinery
(breakers) owing to the absence of proper sewage
disposal arrangements and using of poor quality
material, which weakened the foundation. It is
contended that, by no stretch of imagination, the
applicant can be held liable for poor construction, nor
was it his duty to supervise or verify the structural
quality of the construction. It is further submitted that
the responsibility for verifying the quality of
construction material and structural design lies with the
structural engineer, site supervisor, and the builder. The
role of the applicant, being a government servant
attached to the Municipal Corporation, was limited to
scrutinizing documents and making recommendations
for grant of construction permission to the higher
authorities, namely the Town Planning Officer and the
Commissioner. The applicant was not entrusted with any
duty to personally inspect the construction site or verify
structural integrity. It is also submitted that as per the
General Development Control Regulations (GDCR)
applicable to various Urban Development Authorities,
including Rajkot, Jamnagar, and Bhavnagar, the
authority is not liable for structural soundness,
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workmanship, or quality of materials used in
construction. In view of such provisions, the applicant
cannot be held responsible for alleged deficiencies in
construction.
3.2. It is submitted that considering the said GDCR the
present petitioner remotely cannot be said liable for the
poor construction. Further, it is submitted that by virtue
of office orders issued by the Commissioner of Junagadh
Mahanagar Palika during the period 2006–2008, the
responsibilities relating to construction were assigned to
the Town Planning Officer. Additionally, the development
permission was granted on 31.08.2010, valid for one
year up to 31.08.2011. During this period, with effect
from 05.07.2011, the jurisdiction and powers concerning
development permissions were transferred to the
Junagadh Urban Development Authority as per Section
27, 30 and 32 and 34 of the Gujarat Town Planning Act,
thereby divesting the Municipal Corporation and
consequently the applicant of any further authority or
responsibility in the matter. It is further contended that,
as per the GDCR, submission of a soil test report is not
mandatory, and even post-incident, no conclusive
material has been produced to establish that the land
was incapable of supporting the structural design. The
prescribed format for development permission does not
mandate submission of such a report. Learned Senior
Advocate submits that the duties of the Executive
Engineer are confined to ensuring compliance with
parameters such as permissible built-up area, floor
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space index, height restrictions, open and marginal
spaces, land use, provisions for stairs, lifts, corridors,
parking, sanitary facilities, lighting, and ventilation.
Therefore, the applicant cannot be said to be connected
with or responsible for the structural aspects of
construction. It is further submitted that there is no
mens rea attributable to the applicant. The collapse
occurred due to weakening of the foundation caused by
excavation for drainage purposes using heavy
machinery. Moreover, out of three blocks constructed on
the same plot, only Block ‘A’ collapsed, which further
diminishes the significance of the allegation regarding
non-obtaining of a soil test report. In the absence of any
material establishing involvement or nexus of the
applicant with the alleged offences, it is submitted that
continuation of the proceedings would amount to an
abuse of the process of law. Accordingly, it is prayed that
the impugned FIR and all consequential proceedings be
quashed and set aside.
Submissions of the learned advocate for the applicant in
Criminal Misc. Application No.10138 of 2014.
4. In addition to the common submissions advanced by the
learned Senior Advocate Mr. Patel, assisted by the
learned advocate Mr. Panchal, as recorded hereinabove,
it is further submitted that, as per the case of the
prosecution, the present applicant was serving as the
Commissioner of the Junagadh Mahanagarpalika during
the period from 02.08.2006 to 31.01.2011. It is
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submitted that the principal allegation against the
present applicant is that he granted
development/construction permission to the builders
despite the absence of soil testing reports, foundation
design, fram-work design, steel design, slab design,
Forms A, B, C and D, and progress reports, thereby
committing gross negligence. Learned senior advocate
Mr. Patel submitted that, as per the report of the GARY,
the building collapsed due to poor and substandard
construction. Therefore, the present applicant cannot be
held liable for the offences alleged in the chargesheet. It
is submitted that the applicant had neither the duty nor
the authority to check, inspect or verify whether the
material used by the builder in the construction was of
the requisite quality or whether the construction was
carried out in accordance with the approved structural
design. It is submitted that the responsibility for
ensuring the quality of construction, structural stability,
use of proper materials and supervision of the work
squarely rests upon the structural engineer, the site
supervisor and the builder. The present applicant, being
a Government servant serving as the Commissioner of
the Mahanagarpalika, was required only to consider the
proposal placed before him along with the opinions and
recommendations of the technical officers of the
Corporation while granting development permission. It
is submitted that the applicant was entitled to rely upon
the technical opinions furnished by the subordinate
engineering staff and that it was never his duty to
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personally inspect the construction site or verify the
quality of the structure or the materials used.
4.1. It is further submitted by the learned senior that the
development permission was granted on 31.08.2010 and
was valid for a period of one year, i.e. up to 31.08.2011.
However, the present applicant retired from service on
31.01.2011, barely five months after granting the
permission and much before the expiry of its validity
period. Thus, according to the learned counsel, by no
stretch of imagination can the present applicant be
connected with the offences alleged in the chargesheet.
It is also submitted that the prescribed format for an
application seeking development permission is provided
under the General Development Control Regulations
(GDCR) framed under the provisions of the Bombay
Provincial Municipal Corporations Act. Neither the
provisions of the BPMC Act nor the GDCR cast any
statutory duty upon the Commissioner to verify the
structural design, certify the quality of construction or
building materials, or independently examine the
structural safety of the proposed construction before
granting development permission.
4.2. It is further submitted that the allegations against the
present applicant are based merely on presumptions,
solely because he signed the sanctioned plan and the
checklist placed before him by the technical staff. It is
submitted that the note recommending grant of
development permission had been processed and placed
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before the applicant by the competent technical officers,
and there was no occasion or reason for the applicant to
doubt the correctness of the opinion or
recommendations so placed before him. Learned senior
advocate Mr. Patel further submitted that, as per one of
the conditions contained in Form No.D governing grant
of development permission, the builder is required to
submit the structural design in conformity with the
provisions and specifications prescribed by the Bureau
of Indian Standards (BIS) within a period of 60 days
from the grant of permission. In the present case, no
structural design was ever submitted by the builders
within the prescribed period. By that time, the present
applicant had already retired from service on
31.01.2011. In the aforesaid background, it is submitted
that continuation of the criminal proceedings against the
present applicant, who was serving as the Commissioner
of the Junagadh Mahanagarpalika at the relevant point
of time, would amount to an abuse of the process of law.
5. Per contra , learned APP Mr. Raval, appearing for the
State, has submitted that the present applicant
Executive Engineer had recommended the grant of
development permission and had appended his signature
to the application form submitted on 03.05.2010. It is
contended that, on the basis of such recommendation,
development permission came to be granted for
construction of a multi-storeyed building by
Commissioner. It is further submitted that the said
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permission was valid up to 30.08.2011; however, neither
was the permission renewed, nor was the construction
completed within the stipulated period. It is contended
that, as per the applicable rules, occupancy or use of the
premises is permissible only upon issuance of Building
Use (BU) permission. Despite the same, the flats were
allotted, and the occupants had engaged labourers for
carrying out furniture and POP work. Learned APP
submits that at the time of seeking development
permission, neither the structural design was produced
nor was any soil testing report submitted. It is further
contended that, as per the governing regulations, the
Government-approved engineers were required to
submit progress reports, and only upon verification of
such reports, further permissions were to be granted.
However, no such progress reports in prescribed Form
Nos. 6(A), 6(B), 6(C), and 6(D) were submitted. It is
further submitted that, upon inspection, it was found
that on the western side of Block ‘A’, particularly in the
parking area, fresh excavation work had been carried
out and sewage water accumulation was detected. It is
also contended that Block ‘C’ was found to be damaged.
As per the reports of the Forensic Science Laboratory
(FSL), Gujarat Analysis & Research Yard (GARY),
Executive Engineer, and Research Officer, the samples
collected from the site failed to meet the requisite
standards. It is, therefore, submitted that despite the
permission being valid from 31.08.2010 to 30.08.2011,
the concerned officers, including the present applicants,
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failed to call for or verify the mandatory progress
reports, which ultimately resulted in the collapse of the
structure, causing the death of two persons and grievous
injuries to six others. In view of the aforesaid, it is urged
that the present application deserves to be dismissed,
and the trial be permitted to proceed in accordance with
law.
6. Having considered the submissions advanced by the
learned advocates for the respective parties, and upon
perusal of the allegations made in the FIR as well as the
material placed on record along with the charge-sheet, it
emerges that on the fateful day, i.e., 10.02.2013, the A-
Wing of the building “Monarch-2,” situated at Raiji
Baug, Junagadh, collapsed, resulting in the death of two
persons and injuries to six others. It further appears that
on 11.02.2013, the Commissioner directed the present
applicant who is Executive Engineer namely Mr.
L.K.Vadher to lodge a complaint against the persons
responsible for the said incident. However, when
Mr.Vadher approached the concerned police station, the
FIR came to be registered by the Police Sub-Inspector,
Timbawadi Police Station. Upon perusal of the recitals of
the FIR, it transpires that the information furnished by
the present applicant, namely Mr. L.K. Vadher, Executive
Engineer, formed the basis of the details regarding the
construction. It is an undisputed position that
development permission had been granted for
construction of a basement, ground floor, and nine upper
floors. The said permission was granted on 31.08.2010
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and was valid for a period of one year, expiring on
30.08.2011. However, thereafter, neither any completion
certificate was obtained nor was any application for
renewal submitted. It further emerges that prior to
obtaining Building Use (BU) permission, the units in the
building were allotted, and interior works such as
furniture activities had commenced. Initially, the FIR
came to be registered against the builders and partners
of Mars Developers. Subsequently, upon completion of
investigation, a charge-sheet came to be filed against 14
accused persons for the offences punishable under
Sections 304, 308, 337, 465, 471, 201, 34 and 120B of
the Indian Penal Code, including the present applicant,
who has been arraigned as Accused No. 12 and 13.
6.1. As per the panchnama drawn at the site, it was found
that excavation work for laying a sewage line was being
carried out by using heavy machinery, namely breakers,
and such work had been ongoing for approximately one
month prior to the incident. Subsequent to the collapse
of the structure, several tests were conducted by Gujarat
Analysis & Research Yard (GARY), including testing of
concrete, steel samples, building materials, and cement
concrete. However, the charge-sheet does not disclose
that any soil testing was conducted to assess whether
the land was capable of bearing the structural load. The
allegation against the present applicant-Executive
Engineer and Commissioner is that, while
recommending the grant of development permission,
such a soil test report was not called for. However, upon
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perusal of the recommendation form signed by the
Executive Engineer along with the Town Planning
Officer and the Commissioner which is in the prescribed
format, does not reflect any requirement of such a test.
On the contrary, it appears that Mr. Vadher, at Serial No.
7 of the recommendation, had specifically stipulated that
the structural design was required to be prepared in
accordance with the applicable ISO provisions and was
to be submitted within 60 days from the date of issuance
of permission by the authority. On the basis of such
recommendation, the Commissioner granted permission
for construction of the high-rise building. This Court has
also referred to the statement of the witness, namely
Govind, who was entrusted with the excavation work
using breakers. As per his statement, such excavation
work had been ongoing for a considerable period prior
to the incident, which prima facie indicates that the
foundation of the building may have been weakened due
to such activities.
7. This Court has also referred to the General Development
Control Regulations (GDCR), notified by the Government
of Gujarat vide notification dated 18.05.2002 for the
Ahmedabad Urban Development Area, wherein the
requirements to be fulfilled for grant of development
permission are stipulated as under:–
“5.3.1 GRANT OF DEVELOPMENT PERMISSION
shall mean acceptance by the Authority of the following
requirements:
i) Permissible built-up area.
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ii) Permissible floor space index.
iii) Height of a building and its various stories.
iv) Permissible open spaces enforced under regulations, C.P.,
Marginal spaces, other open spaces, set backs etc.
v) Permissible use of land and built spaces.
vi) Arrangements of stairs, lifts, corridors and parking.
vii) Minimum requirements of high-rise buildings including N.O.C.
from Fire Officer/Fire Safety Consultant as appointed by the
Appropriate Authority.
viii) Minimum requirement of sanitary facility and other common
facility.
ix) Required light and ventilation.
Provided that it shall not mean acceptance of correctness,
confirmation, approval or endorsement of and shall not bind or
render the Authority liable in any way in regard to:
i) Title of the land or building.
ii) Easement rights.
iii) Variation in area from recorded areas of a plot or a building.
iv) Structural reports and structural drawings.
v) Workmanship and soundness of material used in construction of
the building.
vi) Location and boundary of the plot.”
7.1. As per Clause 5.4 relating to liability, it is provided that,
notwithstanding any development permission granted
under the Act and these regulations, any person
undertaking any development work shall continue to be
wholly and solely liable for any injury or damage or loss
whatsoever that may be caused to any one in or around
the area during such construction and no liability
whatsoever in this regard shall be cast on the Authority.
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8. At the time of making an application for grant of
development permission, the following aspects are
required to be duly examined and taken into
consideration:-
“(i) Every person, who gives notice under relevant section of the
Act, shall submit satisfactory documentary proof of his right to
build, provided that the authority may dispense with this
requirement in- case where it is satisfied regarding the ownership
of land bases of any documentary evidence. on the
(ii) The notice under relevant saction for the erection or re-
erection of a building shall be in the prescribed Form-C alongwith
the following plans and sections and information in accordance
with the form prescribed by authority.
(a) A Key plan showing the position of the site.
(b) A block plan of the Building.
(c) (i) A plan of every floor and section of every storey, floor and
roof of the building, with projections, if any, showing the use of
every room or position of the building.
(ii) front elevation or other elevations, if required.
(d) A plan indicating parking spaces, if required under these bye-
laws. The key-plan, the block-plan, the floor-plan, section and ele-
vation shall be drawn as prescribed under these bye-laws.
(e) A report of the structural designer in regard to the proposed
building shall be submitted in Form-Y prescribed under these bye-
laws.
(iii) Plan and sections shall be to a scale of not less than 1:100 or
if the building is so extensive as to render a smaller scale
necessary, not less than 1:200 and the block plan shall be to a
scale not less than 1:500 or if the site is as extensive as to render
a smaller scale necessary not less than 1:1000.
iv) There shall be shown upon the plans and sections--
(a) The level of the site of the building, the level of the lowest
storey of the building, and the level of any street adjoining the
curtilage of the building in relation to one another.
(b) The position, form and dimensions of the foundations, walls,
floors, roofs, chimneys and the various parts of the building,
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means of ventilation and accesses to the various parts of the
building and its appurtenances.
(c) The form and dimensions of every water-closet, privy, urinal,
bath-rooms, cess-pool, well and water-tank or cistern to be con-
structed in connection with the building.
(d) Area classified for exemption of built-up area calculation.
(v) There shall be shown upon the block-plan:
(a) The site and position of the building and of the appurtenances
of the properties immediately adjoining the building.
(b) The position and width of every street adjoining the curtilage
of the building
(c) The size and position of every yard and open space belonging
to the building.
(d) The position of every water-closet, privy, urinal, bath-rooms,
cess-pool, well or cistern in connection with the building other
than those shown in the detail plan.
(e) The lines of drainage of the building, the size, depth and incli
nation of every drain, and the means to be provided for the
ventilalion of the drains.
(f) The position and level of the out-fall of the drains.
(g) The position of sewer, where, the drainage is intended to be
connected to a sewery.
(h) Consolidated open spaces and other open spaces required under
these bye-laws.
(vi) Every plan or amended plan mentioned above shall be
coloured with fixed colours as follows :-
(a) Block Plan: Proposed work in red, existing work in black, grey
or natural tint, open spaces uncoloured, work to be removed in
yellow and consolidated open spaces in green to be clearly shown
on the plan.
(b) Plans and Sections: Proposed work in white lines if on blue
ferro prints and in red lines if on white coloured prints.
(c) Deviations :- In red if on blue prints and in black if on white
prints. Brick work, wood-work, R.C.C. work or steel work shall
each be differently specified work previously approved in yellow.
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(d) All the drainage work and drainage lines shall be shown in
brown colours together with the location of the sewer trap
chamber and the depth of the street connections.
(c) Deviations during Construction:- If during carrying out of
development, any deviation of a substantial nature from the
approved plan is intended to be made, the revised plan showing
the deviations shall be submitted and the procedure laid down for
the original proposal shall apply mutatis mutandis.”
9. Upon perusal of the aforesaid documents, it does not
indicate any requirement on the part of the applicant i.e.
Executive Engineer and Commissioner to undertake site
inspection, verify the quality of construction, or examine
the structural design of the building. Upon perusal of
the aforesaid provisions, it does not appear that any
statutory duty is cast upon the applicants, namely the
Executive Engineer and the Commissioner, to undertake
site inspection, verify the quality of construction, or
independently examine the structural design of the
building before granting development permission.
10. This Court has also referred to the provisions of the
Gujarat Provincial Municipal Corporations Act, more
particularly Sections 253, 254, 257 and 259, which are
reproduced hereinbelow:-
“Section 253 of the Gujarat Provincial Municipal Corporations Act,
1949 – Notice of intention to erect building:
Every person who intends to erect a building shall give notice of
such intention in writing to the Commissioner in such form as
may be prescribed by the rules or bye-laws.
Section 254 of the Gujarat Provincial Municipal Corporations Act,
1949 – Prohibition of building without permission:
No person shall erect or commence to erect any building or
execute any of the works specified in Section 253 except with the
previous permission of the Commissioner, nor otherwise than in
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accordance with the provisions of this Act and the rules and bye-
laws made thereunder.
Section 257 of the Gujarat Provincial Municipal Corporations Act,
1949 – Power of Commissioner to inspect buildings or work:
The Commissioner may, at any time during the erection of any
building or the execution of any work described in Section 254,
without giving previous notice of his intention so to do, enter into
or upon any building or land for the purpose of inspecting such
building or work.
Section 259 of the Gujarat Provincial Municipal Corporations Act,
1949 – Completion certificate and permission to occupy:
No person shall occupy or permit to be occupied any building or
part thereof, or use or permit to be used the same, until a
completion certificate has been obtained in respect of such
building from the Commissioner in the manner prescribed, and the
Commissioner has granted permission for the occupation or use of
the building.”
10.1. Upon perusal of the aforesaid statutory provisions, it is
evident that the Commissioner is empowered to carry
out inspection of any building under construction or any
work contemplated under Section 254 at any stage,
without prior notice. It is further pertinent to note that,
at the time of filing of the charge-sheet, Mr.L.K.Vadher
was initially shown as Accused No. 2 and, at the same
time, was also cited as Prosecution Witness No. 82. This
circumstance prima facie indicates that the Investigating
Officer had initially treated the applicant as a witness,
but subsequently chose to array him as an accused.
10.2. It also emerges from the record that the
Mr.R.M.Sharma, who was serving as the Commissioner,
retired from service within a period of five months from
the date of granting the development permission. The
said permission remained valid for a period of one year
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from the date of its issuance. After the expiry of the said
period, neither any application for renewal nor any
application for extension of the development permission
was submitted. In the aforesaid circumstances, the
present applicant cannot be held liable for any
construction carried out thereafter.
10.3. In the aforesaid factual backdrop, the principal question
that arises for consideration before this Court is whether
the material collected during the course of investigation
discloses that the present applicant had committed any
act amounting to gross negligence or recklessness so as
to attract the offence punishable under Section 337, 304
and 308 of the Indian Penal Code, and whether, prima
facie, the requisite mens rea or culpable intent, essential
to bring such negligent act within the ambit of criminal
liability, under sections 304 and 308 of the Indian Penal
Code is made out ?
10.4. To examine the aforesaid issue, it is necessary to refer to
the relevant provisions of the Indian Penal Code, namely
Sections 304, 308, 337, 465, 471, 201, 34 and 120B,
which are reproduced hereinbelow:–
“Section 304 of the Indian Penal Code – 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
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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.
Section 308 of the Indian Penal Code – Attempt to commit
culpable homicide:
Whoever does any act with such intention or knowledge and
under such circumstances that, if he by that act caused death, he
would be guilty of culpable homicide not amounting to murder,
shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both;
and, if hurt is caused to any person by such act, shall be
punished with imprisonment of either description for a term which
may extend to seven years, or with fine, or with both.
Section 337 of the Indian Penal Code – Causing hurt by act
endangering life or personal safety of others:
Whoever causes hurt to any person by doing any act so rashly or
negligently as to endanger human life, or the personal safety of
others, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which
may extend to five hundred rupees, or with both.
Section 465 of the Indian Penal Code – Punishment for forgery:
Whoever commits forgery shall be punished with imprisonment of
either description for a term which may extend to two years, or
with fine, or with both.
Section 471 of the Indian Penal Code – Using as genuine a forged
document:
Whoever fraudulently or dishonestly uses as genuine any document
which he knows or has reason to believe to be a forged document
shall be punished in the same manner as if he had forged such
document.
Section 201 of the Indian Penal Code – Causing disappearance of
evidence of offence, or giving false information to screen offender:
Whoever, knowing or having reason to believe that an offence has
been committed, causes any evidence of the commission of that
offence to disappear, or gives any information respecting the
offence which he knows or believes to be false, with the intention
of screening the offender from legal punishment, shall be punished
in accordance with the gravity of the offence.
Section 34 of the Indian Penal Code – Acts done by several
persons in furtherance of common intention:
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When a criminal act is done by several persons in furtherance of
the common intention of all, each of such persons is liable for
that act in the same manner as if it were done by him alone.
Section 120B of the Indian Penal Code – Punishment of criminal
conspiracy:
Whoever is a party to a criminal conspiracy shall be punished
with imprisonment of either description for a term as provided for
the offence, or with fine, or with both, as the case may be.”
10.5. For the purpose of attracting the provisions of Section
304 of the Indian Penal Code, it would be apposite to
refer to the definition of “culpable homicide” as provided
under Section 299 of the IPC. Culpable homicide
constitutes the first category of unlawful homicide and is
defined as the causing of death by doing: (i) an act with
the intention of causing death; (ii) an act with the
intention of causing such bodily injury as is likely to
cause death; or (iii) an act with the knowledge that such
act is likely to cause death. Culpable homicide is dealt
with under Sections 299 and 304 of the IPC, whereas
non-culpable homicide is governed by Section 304 of the
IPC. Culpable homicide is further classified into two
categories: (i) culpable homicide amounting to murder,
covered under Section 300 read with Section 302 of the
IPC; and (ii) culpable homicide not amounting to murder,
punishable under Section 304 of the IPC. The
ingredients of “intention” and “knowledge,” as
envisaged under Section 299, postulate the existence of
a positive mental state or mens rea, which is essential
for constituting the offence. The third limb of Section
299 contemplates knowledge of the likelihood of death
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resulting from the act. In the scheme of the IPC,
culpable homicide is the genus, while murder is its
species, thus all murders are culpable homicide, but not
all culpable homicides amount to murder. A plain
reading of the provision makes it evident that the first
and second clauses of Section 299 pertain to intention
(in addition to knowledge), whereas the third clause
pertains solely to knowledge and not intention. Both
“intention” and “knowledge” denote distinct degrees of
mental culpability. The mental element in culpable
homicide, therefore, comprises three species of mens
rea: (i) intention to cause death; (ii) intention to cause
such bodily injury as is likely to cause death; and (iii)
knowledge that death is likely to ensue. An act on the
part of the accused, if found to be rash or negligent and
constituting a direct, proximate, and efficient cause of
death, may be held to be the cause of death attributable
to such rash and negligent act.
10.6. Section 308 of the Indian Penal Code provides for
punishment in cases of attempt to commit culpable
homicide. Upon consideration of the material collected
by the Investigating Officer, as discussed hereinabove, it
does not even prima facie disclose any act attributable
to the accused which was committed with the knowledge
that such act was likely to cause the death of a human
being. It is true that at the stage where only the charge-
sheet has been filed, the scope for quashing the entire
FIR, particularly in a case involving loss of human life, is
limited. However, there must exist at least some material
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on record which, prima facie, indicates that the accused
had committed an act with the requisite knowledge that
such act was likely to result in death. In the present
case, the entirety of the material relied upon by the
prosecution, as elaborately discussed in the preceding
paragraphs, fails to substantiate or support the
invocation of serious offences under Sections 304, 308,
337, 465, 471, 201, 34 and 120B of the Indian Penal
Code.
10.7. Section 337 of the Indian Penal Code provides for
punishment for causing hurt by an act endangering life
or the personal safety of others. For attracting the
ingredients of the said provision, the degree of
negligence must be of a high order, i.e., gross
negligence. Negligence which is neither gross nor of
such a high degree may give rise to civil liability
however, the same would not constitute a sufficient basis
for criminal prosecution.
10.8. Upon referring to the decision of the Apex Court in
Jacob Mathew vs. State of Punjab , reported in (2005)
6 SCC 1 , it has been observed and clarified that
negligence in civil law does not necessarily amount to
negligence in criminal law. The Court has held that, for
negligence to constitute an offence, the element of mens
rea , i.e., a culpable state of mind, must be established. It
has been further held that, for negligence to attract
criminal liability, the degree of negligence must be gross
or of a very high order. Mere negligence, which is
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neither gross nor of such a degree, cannot form the
basis for prosecuting a person under criminal law.
11. Now, reverting to the facts of the present case, as
discussed hereinabove, the report indicates that the
collapse of the building occurred primarily on account of
the weakening of the foundation caused by excavation
undertaken for drainage purposes by using heavy
machinery. It also emerges that the use of substandard
construction material was one of the contributing factors
leading to the collapse of the building. It is true that the
unfortunate incident resulted in the loss of two human
lives. However, at the highest, the role attributed to the
present applicants, who were Government servants
serving with the Municipal Corporation, may amount to
negligence in scrutinising the documents and making
recommendations. Such negligence, however, cannot be
said to be so gross or of such a degree as to warrant
their prosecution and trial for the offences alleged. It is
also pertinent to note that no departmental inquiry
culminating in any finding of misconduct was concluded
against the present applicants. In the aforesaid
background, the allegations levelled against the present
applicants, read with the material collected during the
course of investigation, do not prima facie disclose the
commission of any act done with the knowledge that it
was likely to cause death, albeit without any intention to
cause death, so as to attract the provisions of Section
304 of the Indian Penal Code. Similarly, the material on
record does not disclose the degree of gross negligence
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or recklessness necessary to attract the ingredients of
Section 337 of the Indian Penal Code.
11.1. Considering the overall facts and circumstances of the
case, and upon evaluating the allegations levelled
against the present applicants, particularly with regard
to their role in signing the checklist and processing the
proposal for grant of development permission, this Court
is of the opinion that the material on record does not
disclose the commission of the offences alleged against
them. Consequently, continuation of the criminal
proceedings against the present applicants would
amount to an abuse of the process of law and, therefore,
the prosecution deserves to be quashed.
12. Admittedly, there are no specific allegations against the
present applicant insofar as the offences punishable
under Sections 465, 471 and 201 of the Indian Penal
Code are concerned. In respect of the remaining
provisions, namely Sections 34 and 120B of the IPC, the
material on record does not disclose any meeting of
minds or any concerted action so as to prima facie
establish the offence of criminal conspiracy.
13. At this stage, it would be apposite to refer to the
decision of the Apex Court in State of Haryana v.
Bhajan Lal , reported in 1992 Supp (1) SCC 335 ,
wherein the Hon’ble Court has illustratively laid down
certain categories of cases in which the extraordinary
jurisdiction under Article 226 of the Constitution of India
or the inherent powers under Section 482 of the Code of
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Criminal Procedure may be exercised for quashing of an
FIR, either to prevent abuse of the process of any Court
or otherwise to secure the ends of justice. Reference is
made to paragraph 102 of the said judgment:-
“102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to
the exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we have given the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it may not
be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(i) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused.
(ii) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(iv) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
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provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.”
13.1. The present case is squarely covered with the
parameters laid down by the Apex Court in the case of
Bhajan Lal (supra) , particularly Categories (iii) and (v).
14. In view of the aforesaid, the present applications
deserve to be allowed and are accordingly allowed. The
impugned FIR being I-C.R. No. 38 of 2013 registered
with Junagadh B-Division Police Station, as well as the
charge-sheet dated 01.03.2014 is hereby quashed and
set aside. Consequently, all further and consequential
proceedings arising therefrom shall also stand quashed
and set aside.
15. Rule is made absolute accordingly.
(M. K. THAKKER,J)
M.M.MIRZA / NIVYA NAIR
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