- (1.) SAROJ Bala, J. The consolidated bail application Nos. 4199, 4582, 4583 and 4594 of 2007 in case crime No. 18 of 2007 under Section 304 I. P. C. P. S. Civil Lines District Allahabad moved on behalf of applicants Mohd. Shahid, Gulab, Jamil Ahmad alias J. K. and Juggu alias Wasim Ahmad respectively are being disposed of by a common order.
(2.) HEARD Shri Viresh Mishra, learned Senior Advocate assisted by Shri Amit Mishra, learned Counsel for the applicants, Shri J. P. Singh learned A. G. A. appearing on behalf of State and have perused the record. The learned Counsel for the applicants submitted that the building under construction fell down accidentally. There are no expert reports relating to the quality of cement, sand and iron used in the construction except the statements of masons and labourers. The prosecution case taken as a whole does not travel beyond Section 304-A I. P. C. or an act punishable under the provisions of U. P. Urban Planning and Development Act, 1973. The applicants had no motive, intention of knowledge to commit an offence and have suffered a loss of about Rs. fifty lacs. The death of masons and labourers was not caused as a direct result of any act or conduct of the applicants. In the absence of intention and knowledge on the part of the applicants no offence under Section 304 I. P. C. is made out. The construction work was being carried out under the supervision of mason Panna. The notices sent to the owner who is not an accused referred to leaving of setback. The construction of the building was being carried out in accordance with the sanctioned map as per Rules and Regulation prescribed by the Allahabad Development Authority and it was being supervised from time to time by the engineers and officials of A. D. A. but no objection about the quality of structure was ever raised by them. The applicants Mohd Shahid, Gulab, and Juggu not being the owner of the property, no criminal intent or mens rea can be attributed to them. The construction work being done legally and by lawful means, therefore, the case falls under exception contained in Section 80 of I. P. C. The documents annexed with counter-affidavit have been fabricated by the officials of Allahabad Development Authority after the collapse of building to save their skin. After investigation charge-sheet was submitted for an offence under Section 304-A I. P. C. but cognizance was taken under Section 304 I. P. C. against the settled provisions of law. The learned Counsel relied on the decisions in Public Prosecutor v. Pitchainh Moopnar, AIR 1970, Madras 198, Ambalal D. Bhatt v. State of Gujarat, 1972, Supreme Court Cases (Crl.) 618, and Bal Chandra and Anr. v. The State of Maharashtra, AIR 1968 Supreme Court 1319. The learned A. G. A. argued that map was sanctioned for construction up to the second floor but building work was carried out upto fifth floor. The map was sanctioned on 22-11-2006 and the construction collapsed on 10-1-2007. The application filed under Section 482 Cr. P. C. before this Court by the applicants for quashing the order of cognizance dated 10-4-2007 was dismissed vide order dated 10- 5-2007 passed in Criminal Misc. Application No. 10131 of 2007. The order of taking cognizance under Section 304 I. P. C. having been upheld by this Court it cannot be reagitated. The act of the applicants cannot be termed as negligence or carelessness falling under Section 304-A I. P. C. The construction in question was carried out in violation of National Building Code of India, 1983. The building under construction collapsed as it was hurriedly raised without allowing the mortar of lintel to settle resulting in the death of seven labourers and serious injuries to twenty eight persons. A notice was given on 13- 12-2006 by the Zonal Officer of Allahabad Development Authority to the wife of applicant Jamil Ahmad that the construction was being raised in violation of the rules and regulation. The owner was directed vide notice dated 4-1- 2007 to demolish the illegal constructions. She having failed to make compliance of the notice, a compliant was filed against her before the appropriate Court. The learned A. G. A. in support of his contentions relied on the decisions in M. S. Garewal and Anr. v. Deep Chand Sood and Ors. , 2001 S. C. C. (Cri.) 1426, Smt. Chaya Khanna and Ors. v. State of U. P. and Ors. , 2007 (1) JIC 894 (SC) : 2006 (5) ALJ 181, State of U. P. through CBI v. Amar Mani Tripathi, 2006 (1) JIC 210 (SC) : (2005) 8 Supreme Court Cases 21 and Anil Kumar Tulsiyani v. State of U. P. , 2006 (2) JIC 668 (SC) : 2006 (55) ACC 1014.
(3.) I have taken into consideration the submissions advanced on behalf of both the parties. The owner of collapsed building was applicant Jamil Ahmad alias J. K. The building material was purchased by him. The construction activity was going on under his instructions and direction. The notices for violation of building code and demolition were issued to the wife of applicant Jamil Ahmad alias J. K. The multi-storeyed building was constructed under his directions in letter disregard of the safety of others resulting in the death of six labourers and injuries to many. The applicant Jamil Ahmad alias J. K. having direct link with the quality of material and construction of building which collapsed on January 10, 2007, he is not entitled to bail.;