Case Note & Summary
The matter involved an anticipatory bail application filed by Sundeep Bafna before the High Court of Bombay. The applicant had taken the underground area of a building on leave and license basis from accused no.4, and the building subsequently collapsed. The applicant contended that the building was already in a dilapidated and dangerous condition before he commenced any work, as evidenced by letters written by the first informant, Rizwan Merchant, in 2008 describing the building as 'shivering and quivering' and in need of extensive repairs. He claimed that he engaged experienced engineers and a qualified contractor to carry out repairs, but the informant objected to the grant of permission for the work. The applicant never occupied the premises and had cancelled the license agreement due to the owner's failure to secure BMC approval. Two reports of a committee appointed by the Municipal Corporation, dated 2 July 2013 and 12 August 2013, completely exonerated the applicant. The applicant argued that his acts did not constitute gross negligence, that the damage he allegedly caused was not the causa causans of the collapse, and that at most the offence fell under Section 304-A IPC, a bailable offence. He relied on Joginder Kumar v. State of U.P. to emphasize that arbitrary arrest violates Article 21 and that custody was unnecessary since documents were available with authorities. The State and the informant countered that the case was of Section 304 IPC, as the applicant had knowledge of the consequences of his acts. They argued that the applicant commenced chipping of columns, beams, and walls before obtaining expert opinion, and that letters seeking repair permission were ante-dated to camouflage prior unlawful work. The informant challenged the impartiality of the expert committee report, alleging bias, and asserted that the building collapse was solely due to the applicant's damage to structural columns. The court heard both sides and reserved judgment on 19 September 2013, delivering it on 11 October 2013. The available text does not include the court's final analysis and order.
Issue of Consideration
Whether the applicant is entitled to anticipatory bail in a case where he is accused of causing building collapse by negligent repair works, and whether the offence falls under Section 304 or Section 304-A IPC.
Case Details
2013 LawText (BOM) (10) 53
Anticipatory Bail Application No.941 of 2013
Mr. Ram Jethmalani, Mr. Shrikant Bhatt, Mr. Amit Jajoo, Mr. Subhash Jha, Mr. Sameer Vaidya, Mr. Atul Singh, Mr. Priyank Ladoia, Ms. Sushmita Gandhi for applicant; Mr. D. J. Khambata, Advocate General with Mr. Ajay S. Gadkari, Ms. A. A. Mane APP for respondent no.1; Mr. Rizwan Merchant, respondent no.2 in person
The State of Maharashtra, Rizwan Merchant
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Nature of Litigation
Anticipatory bail application filed before the High Court of Bombay in connection with building collapse case.
Remedy Sought
Applicant prayed for grant of pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973.
Filing Reason
The applicant apprehends arrest in crime registered by DCB CID, Mumbai for offences under Section 304 and other provisions of the Indian Penal Code, arising from the collapse of a building where the applicant had taken underground premises on leave and license.
Issues
Whether the acts of the applicant amount to 'gross negligence' attracting criminal liability under Section 304 IPC or are covered under Section 304-A IPC which is a bailable offence.
Whether the damage to structural columns caused by the applicant was the 'causa causans' (the real and proximate cause) of the building collapse.
Whether the applicant is entitled to anticipatory bail under Section 438 Cr.P.C. in view of the principles of personal liberty enshrined in Article 21 of the Constitution.
Whether the police need the applicant's custody for investigation, or whether the available documents and witnesses suffice without arrest.
Submissions/Arguments
Applicant argued that the building was already in a critical and dilapidated condition prior to his involvement, as admitted by the informant in letters dated 10.11.2008 and others.
Applicant contended that he engaged experts and a qualified contractor for repairs and acted with due diligence, thus no gross negligence can be attributed.
The two reports of the Municipal Corporation's expert committee completely exonerate the applicant and should be relied upon as official acts.
Applicant maintained that he never occupied the premises, had cancelled the leave and license agreement, and demanded refund due to owner's failure to secure BMC permission.
The applicant's acts are not the causa causans of the collapse; the building's pre-existing deteriorated condition is the real cause.
Even if any offence is made out, it falls under Section 304-A IPC (bailable) and not Section 304 IPC, as noted by the informant in earlier correspondence.
Reliance was placed on Joginder Kumar v. State of U.P. to stress that arbitrary arrest violates Article 21, and custody is not necessary as documents are available elsewhere.
State and informant argued that the case squarely falls under Section 304 IPC because the applicant commenced chipping of columns, beams before obtaining expert opinion, showing knowledge of consequences.
The letters seeking permission for repair work were ante-dated; the work was done before 14.11.2008 while the letters were dated 7.11.2008 but delivered on 14.11.2008.
The informant challenged the impartiality of the expert committee report, alleging bias and shielding of the applicant by BMC officers.
It was argued that the collapse occurred solely due to damage to structural columns by the applicant, not due to any pre-existing condition or hoarding.
Judgment Excerpts
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.
The only allegation made against the present Applicant is that he has allegedly carried out some repairs in the basement of “A” wing... it is not the “causa causans”.
It is a clear case of existence of knowledge of consequences own acts, to accused particularly when he had commenced work before he had actually received the opinion of experts.
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.
The argument of causa causans urged by the applicant is totally misplaced.
Procedural History
The applicant filed Anticipatory Bail Application No.941 of 2013 before the High Court of Bombay apprehending arrest in a crime registered by DCB CID, Mumbai. The matter was heard on 19th September 2013 and reserved for judgment. The judgment was delivered on 11th October 2013. The first informant, Rizwan Merchant, had been making complaints regarding the building's condition and the applicant's illegal repairs since 2008. No prior judicial orders are mentioned in the provided text.
Acts & Sections
- Indian Penal Code, 1860: 304, 304-A
- Code of Criminal Procedure, 1973: 46(1)
- Constitution of India: Article 21
