A. H. Joshi, J. - (1.)Heard both sides. Perused the record annexed to the application and those tendered in Court by parties on both
(2.)Learned Senior Advocate Mr. Jethmalani has advanced submissions on facts which are as follows :-
(a) The underground area of the "A" wing of the building which collapsed, were taken on leave and license basis by the applicant from accused no.4.

(b) In the FIR, so also in several letters written by the Intervener to various authorities, he has admitted that, well before the Applicant took the underground and decided to carry out any repair work in the licensed premises, the building was in a critical and very bad condition to such an extent that the building was shivering and quivering (letter dated 10.11.2008) and that it needed extensive repairs.

(c) The applicant took advice of experienced engineers & architect, and had proposed to get some repair work done through a qualified contractor.

(d) The experts could not commence any work for making the building safer which they had proposed because the Intervener objected to the issuance of permission required for carrying out those repairs.

(e) The intervener claims that he took advise of Mr. Chetan Raikar, who suggested that building needed major repairs.

(f) The licensed premises were not habitable. The premises were never occupied or used by the Applicant, even till the agreed date of expiry of license had crossed.

(g) Letter and notices were issued by the Applicant to the owner on 13.6.2009, 23.11.2009 and 30.12.2009 and thereby informed cancellation of the Leave and License agreement, and demanded refund of the deposit from Mr. Iqbal Ibrahim. He demanded refund on the ground that Mr. Iqbal Ibrahim had failed to secure the permission from the BMC for carrying out the renovation/repair work in the licensed premises.

(h) Two reports were furnished by the committee appointed by Municipal Corporation, which are dated 2nd July 2013 and dated 12th August 2013. The findings given in these reports do completely exonerate the applicant. These reports are official acts and opinions rendered by them should be relied.

(i) Police have not issued any notice to the applicant for attendance. It is not disputed that recently, a notice was pasted on the door of applicant's residence during pendency of this application.

(j) The applicant is not in Mumbai and is at Delhi and is engaged in seeking the legal advice and is preparing to meet any eventualities. It cannot be said that the applicant has evaded the arrest.

(3.)Legal submissions as advanced by learned Senior Advocate Mr. Ram Jethmalani are as follows :-
(a) The plea of negligence for attracting criminal liability is to be the negligence of "gross" nature.

(b) The applicant's business is of selling etc. of automobiles and he is entitled to rely in matters of experts in the field of structural engineers and work restoration of old buildings.

(c) One who has acted with due diligence in taking measures, cannot be branded as negligent that too for fastening criminal liability.

(d) Even if the contents of FIR are considered to be true, even without further and formal proof of facts stated therein, no offence whatsoever and under any section of the penal code, or any other law, is described.

(e) The only allegation made against the present Applicant is that he has allegedly carried out some repairs in the basement of "A" wing which is on left side, which even if considered to be a fact of the matter, it is not the "causa causans".

(f) Any act done by applicant cannot be the real cause of the incident, by applying the doctrine of causa causans. Therefore, the applicant is not remotely liable.

(g) Reliance whatsoever cannot be placed on the Intervener's hearsay evidence about the advice he has received from expert engaged by him as to the opinion as regards repairs and/or reasons of collapse of the building.

(h) If at all an offence is described, it could be under section 304-A of IPC, which is a bailable offence.

(i) The letter "A" has been consciously omitted (from 304-A) by the first informant while writing provisions of IPC in FIR, though he had mentioned it in letter of 24.8.2009 and letter of 26.5.2010 addressed to police where section 304-A has been mentioned.

(j) There is no justification for the intervener to call the reports of the committee appointed by corporation as corrupt and false with a bald allegation.

(k) Any criticism on the public document i.e. the reports of committee offered by intervener casually and irresponsibly should not be given any weight or prominence at this stage.

(l) An arrest cannot be made on the intervener's irresponsible opinion of this type.

(m) A person who is openly seeking remedies before competent courts cannot be said to be absconding or avoiding arrest.

(n) Though the police wants to obtain some documents from the Applicant particularly correspondence with "Con-tech" consultants, same are available with public authorities and the consultant. The arrest of applicant and custody, for that purpose cannot sustain as a good ground in law.

(o) Further, it has been suggested that custody is required for confrontation with Iqbal Ibrahim, who is on bail. This excuse is wholly unjustifiable since any confrontation can be done any time for which arrest is not necessary.

(p) Right of the applicant as to his liberty, and right to anticipatory bail is now embedded in Article 21 of the Constitution of India in view of the law laid down by the Hon'ble Supreme Court in various judgments.

(q) In view of section 46(1) of the Cr.P.C. now it is duty of the police to make it sure that arrest is not affected just because it may be legal.

(r) Arrest can be affected only in case of serious offence where offence could be punishable with death or life imprisonment or because the accused has tampered with evidenc etc.

(s) In cases of simple nature particularly of present nature, right of interrogation by police can never be a ground for arrest.

(t) The accused person has shown that he has really exhibited due diligence before work was commenced. On the other hand damage already caused to the property due to deterioration and failure in maintenance is adequate enough to suggest that the accused had no knowledge of probable consequences of any of his alleged acts.