H.K.RATHOD - (1.)The brief facts of the present petition are as under :- The Senior PSI Mr.K. S. Patel of Billimora Police Station filed complaint against the petitioner accused and one Bhaumik Anilbhai Shah. According to the prosecution case, the petitioner No.1 is the builder and the accused No.2 is Architect. It is also the case of prosecution that these accused had undertaken the construction of Jalaram Complex consisting of four buildings. It is the case of the prosecution that Jalarm Complex B-1 was completed and occupied by members, whereas Jalarm Complex B-2 was under construction. According to prosecution case, one person had come with Camel Cart to unload `Kota' stones at Jalaram Complex B-2 unit. According to further case of prosecution the accused No.2 had prepared the plans and maps of the construction of the said premises and accused No.3 is the Structural Engineer. It is also prosecution case that the accused carried out the construction in violation of rules and regulations and had also not undertaken the required test before commencing construction. According to the further case of prosecution that on 26th January, 2001 witnessed the unprecedented earthquake and resultantly, the Unit No.2 had collapsed and damaged Unit No.1 building which resulted into death of six persons. According to the learned Advocate Mr.A.D.Shah, the building Unit No.1 was existing building and the same was occupied by 17 [ seventeen ] members. However, it is submitted that out of these seventeen members, 11 members have made full payments towards the cost of respective flat / residential unit to the petitioner. According to Learned Advocate Mr.Shah, out of these 17 members, 5 members have been given alternative accommodation by the petitioner and one is already got his own accommodation and rest of 11 members are without accommodation. Learned advocate Mr.Shah has also submitted that for the building - Unit No.2 which was in fact under construction, for which the petitioner has received part payments from three members namely (i) Ramilaben, (ii) Bharatbhai and (iii) Thakorbhai and such total part payments comes to Rs.5,62,000.00 against booking of three flats by the respective members with the building scheme of the petitioner. Mr.A.D.Shah, learned advocate has submitted that this of Rs.5.62 lacs which has been received by the petitioner is the part payment received from three members, however, the petitioner is prepared to deposit this amount before this Court within period of 10 days from today and it is further submitted that necessary undertaking to that effect will be filed before this Court. Mr.A.D.Shah, learned advocate has also submitted that in respect of the members for Building No.1, wherein, in all 17 members were residing and out of these 17 members, 11 members have made full payment against the respective flat / residential unit and the remaining 6 members have paid part payment to the petitioner and remaining payment was to be made, for that the petitioner will reconstruct the entire building. It is also submitted that necessary undertaking on behalf of all organisers / partners to that effect will be filed before this Court within 10 days from today, giving undertaking in a manner that the petitioner will provide flat to all 17 respective members of the Building Unit No.1 and Unit No.2 as per the plan without charging any extra amount than the amount agreed amount of the price of the flat, however, if the member does not want to continue as the member in the scheme then the amount paid by such member will be refunded and there will not be any responsibility to allot such flat to that member. Learned advocate Mr.Shah has also submitted that in respect of six persons who have died in the incident while the building Unit No.2 collapased on Building No.I, for them, the petitioner will deposit amount of Rs.70,000.00 for each victim and in all undertakes to deposit Rs.4.20 lacs before this Court within 10 days from today.
(2.)I have considered the averments made in the present application and averments made in the reply filed by the respondent dated 30th March, 2001 as well as rejoinder filed by the petitioner and also considering the submission made by both the learned advocates, without deciding the merits of the matter and considering the request of both the learned advocates for the parties who requested not to pass reasoned order and therefore considering the matter and before passing the final order, according to my opinion, some observations made by the Apex Court as well as Division Bench of this Court while dealing with said application which are pertinent to quote in relevance of the facts and circumstances of this case which are reproduced as under :- Recently, the Apex Court in case of GAYA PRASAD V. PRADEEP SRIVASTAVA reported in (2001) 2 SCC page 604, para-19 observed as under :-
"The time is running out for doing something to solve the problem which has already grown into monstrous form. If a citizen is told that once you resort to legal procedure for realisation of your urgent need you have to wait and wait for 23 to 30 years, what else is it if not to inevitably encourage and force him to resort to extra-legal measures for realising the required reliefs. A Republic, governed by rule of law, cannot afford to compel its citizens to resort to such extra-legal means which are very often contra-legal means with counterproductive results on the maintenance of law and order in the Country."
There is recent observation of the Apex Court in case of MAKAHN LAL BANGAL V. MANAS BHUNIA, reported in (2001) 2, SCC 652, para-26,
"An alert Judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly negotiating on shorter routes avoiding prolixity and expeditiously attaining the destination of a just decision. The interest of the counsel for the parties in conducting the trial in such a way so as to gain success for their respective clients is understandable but the obligation of the Presiding Judge to hold the proceedings so as to achieve the dual objective search for truth and delivering justice expeditiously - cannot be subdued. However, sensitive the subject matter of trial may be; the courtroom is no place of play for passions, emotions and surcharged enthusiasm."
Recent observation of the Apex Court in case of GOVERNMENT OF A.P. V. A.P. JAISWAL reported in (2001), 1 SCC 748, para-24 which runs as under :
"Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect for the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice."
There is recent observation of the Division Bench of this Court in case of PEOPLES UNION FOR C.L. VS. STATE [ Coram : D.M.Dharmadhikari, C.J. ] reported in 2001 (1) G.L.R., page 547 observed that;
"A Judge on assuming office during his tenure sits cut-off from the society as he cannot continue to be in public life, but as he also comes from the society with his own experience of it, he is better stationed at a distance from the problems of the society to view them in a more objective, detached and dispassionate manner, than those involved in it, and for that reason, he is more suited to resolve conflicts and competing claims of the individual and the society. [ para 22 ]".
The Apex Court in a decision rendered in case of JOGINDAR KUMAR VS. STATE OF UP reported in AIR 1994 S.C. page 1349, certain observations are quoted as under :- `No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Office in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do. The, there is the right to have some one informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984, in England. These rights are inherent in Arts. 21 and 22 (1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the Supreme Court issued the following requirements :
(1) An arrested person being held in custody is entitled, if he so request to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.

(2) The police officer shall inform the arrested person when he is brought to the police station of this right.

(3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Arts. 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals."
23. In India, Third Report of the National Police Commission at Pg-32 also suggested :

"... An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :-

(i) The case involves a grave offence like murder, dacoity, robbery , rape etc. , and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the process of law.

(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ... "
(3.)After considering the above observations as well as the averments made in the application as well as reply and rejoinder, in such type of cases it is the duty of the court to see and protect the interest of the persons who become victim in such incident, and simultaneously also to consider the fate of the persons who are behind the bar because of this incident.