H.K.RATHOD - (1.) . Heard Mr.P.M.Thakkar, learned senior advocate for the petitioner and Mr.A.D.Oza, learned Public Prosecutor on behalf of the respondent State. "The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising the powers, the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum." [Extract : Vaish Degree College Vs. Laxminarayan reported in AIR 1976 SC page 888 ] "Law cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, rule of law must run akin to rule of life. And life of law is not logic but experience ..' While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction." [Extract : Municipal Board, Pratapgadh Vs. M.S.Chawla reported in AIR 1982 SC page 1493 ] "Article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal inquiry. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects; `Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest." [ Extract : Shivshankar Dal Mill Vs. State of Hyryana reported in AIR 1980 SC page 1037 ] Rule. Mr.A.D.Oza, learned Public Prosecutor waives service of Rule on behalf of the respondent State.
(2.) . The brief facts of the present petition are as under :- On 9-2-2001 at about 4.30 p.m informant Kiritbhai Vitthalbhai Lalluvaida lodged the FIR being C.R.No. I62 / 2001 with Navrangpura Police Station for the offence which took palce on 26-1-2001 at about 8.50 a.m. against the petitioner and other accused persons for the offences under Section 304, 120 B, 418, 420 of IPC and under Section 3(2)(c)(d), 7(1)(i)(ii) (2) of the Gujarat Owners Flat Act, 1973, wherein, the petitioner is accused as the Chairman of the Shan Co-Op Housing Society. It is stated in the FIR that on the land bearing City Final Plot No. 247, T.P.Scheme No.29 and City Survey No.274, two buildings are being constructed as Block A & B of `Rutvij Apartment' having in all 32 flats and has been registered on 28th April, 1995 in the name of Shaan Co-operative Housing Society Ltd. The coplainant had purchased one float in Block - B of the Rutvij Apartment in the year 1998 and for the same he has also taken loan of Rs.1.50 lacs from Satellite Road Branch of State Bank of Saurashtra. It is also alleged by the complainant in the complaint that B.U.Permission, share certificate, plans etc from the builder but according the petitioner, the same were very well supplied to the members. It is further alleged in the FIR that on 26th January, 2001 at about 8.50 a.m. the portion of the staircase of Blcok No.B was broken and pillars were sank in the earth upto first floor due to massive earthquake. Howerver, no damage is caused to Blcok - A which is adjacent to Blcok-B. It is the case of the prosecution that one Satiben, wife of Vijaykumar Nair and Mahendra Patel, Jay M. Makwana and wife of Bhogilal received injury on their persons in the the said incident. Satiben was thereafter taken to hospital and there she succumb ed to injuiris sustained by her. However, on behalf of the petitioner it is submitted that the petitioner is doing the business of selling milk and the petitioner is neither Structural Designer nor Architect nor Engineer nor builder. The petitioenr has nothing to do with the building activities. It is further submitted that the petitioner is not holding any degrees of civil engineering nor the petitioner has to do with construction activities and the petitioner has not participated in any manner in construction of the building. It is submitted that the petitioner is the Chairman of the society and the petitioner was simply rendering his honarary services only nor the petitioner has gained any benefit. It is further submitted that the petitioner is holding the Flat on the 4th Floor of the building involved in the FIR and he being the member of the society is elected as Chairman since incpetion of the Shan Co-Op Housing Society for the purpose of concluding the requisite formalities under the provisions of Co-Operative Societies Act. The petitioner has not participated in any manner with the construction activity. The petitioner further submitted that the `Shan Co-op Housing Society Ltd' is the registered co-operative society and the construction work was handed over to one M/s Kapadia Corporation which carried out construction of the building involved in the FIR in question. The petitioner had preferred Misc. Crim. Application No. 719 / 2001 in the Court of the Addl Sessions Judge, Ahmedabad which was rejected by the concerned Sesssions Judge on 17th April, 2001 qua the present petitioner and hence the present petition under Section 439 of CrPC 1973 on the ground that the petitioner is innoncent and he has not committed any crime as alleged against him. It is also submitted by the petitioner, all the necessary and relevant papers in respect of the building in question have been obtained the same were supplied to the complainant of the FIR. However, it is submitted by the petitioner that soon after this earthquake, on 31-1-2001 a meeting of members of the society was held and in the said meeting it was unanimously decided that at the same place the construction work is to be carried out and the members had also signed in that Minutes book of the Society. That the building Rutvij Apartment was constructed by me as per the Standard Specifications and as per the Rules and bye-law of Municipal Corporation. That as regards the damaged building, the petitioner being Chairman of `Shan Co-op Housing Socieity, undertake to reconstruct and restore all the damaged flats by undertaking constructing myself at my entire cost. However, if the flat owner or owners choose and desire to pay to me any amount by way of contribution as may be received from the Government aid and / or any agency by him or them, it will be open to me accept the same but I will not compel in any way any of them to make any such contribution by resorting to litigation or in any other manner I further undertake to complete the construction by the end of May, 2003 and put the respective flat owners in actual possession of their respective flats. If I fail in any way to deliver possession of reconstructed flats to the respective owner or owners by the end of May, 2003, I will pay rent compensation at the rate of Rs.5000.00 per month to each of such flat owner. If however any flat owner chooses not to have reconstructed flat, I will pay him the price thereof paid by him. Mr.P.M.Thakkar, learned senior advocate appearing on behalf of the petitioner has also further submitted that the petitioner is ready to pay Rs.75,000.00 to the legal heirs of the deceased Satthiben w/o Vijaykumar Nayar within three months of the date of release of the petitioner from jail.
(3.) . Learned senior advocate Mr.P.M.Thakkar has prepared draft undertaking and copy of the said draft undertaking has also been given to the learned PP Shri A.D.Oza. However, Mr.A.D.Oza, learned PP has verified the statement made by the present petitioner in the draft undertaking.;