Allowed

Nawazish v. State of U.P. Thru. Prin. Secy. Home, Lko.

Allahabad HC20 Apr 2023/4239/2023

Case brief

AI extract

What is this about?

Court allowed bail application of Nawazish accused in building collapse case. Bench held that as co-accused actively involved in construction were already granted protection orders and no witness established applicant's active role or knowledge of specific dangerous acts, bail was granted on personal bond and sureties.

What did the court decide?

Applicant released on bail subject to personal bond, two sureties, and undertaking not to tamper with evidence or pressurize witnesses.

Nawazish Vs State of U.P. Thru. Prin. Secy. Home, Lko. — Bail and Remand | Allahabad HC (2023)

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Court No. - 16

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4239 of 2023

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Applicant :- Nawazish Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Applicant :- Ram Chandra Singh,Arun Sinha,Pranshu Agrawal,Siddhartha Sinha Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Anoop Trivedi Senior Advocate assisted by Sri Pranshu Agrawal and Sri Swetanshu Agarwaal, Advocates, the learned counsel for the applicant, Sri Jayant Singh Tomar, the learned A.G.A. for the State as well as Sri Nadeem Murtaza, and Sri Prashast Puri, the learned counsel for Sri Mohd. Abbas Haider, one of the victims of the offence and perused the records

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 35 of 2023, under Sections 304, 308, 323, 420, 120-B I.P.C. and Section 7 Criminal Law Amendment Act, registered at Police Station Hazratganj, District Lucknow.

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The aforesaid case has been registered on the basis of an F.I.R. lodged by a Sub Inspector of Police on 25.01.2023 against three named accused persons, including the applicant, stating that on 24.01.2023 at about 6:45 p.m. an information was received that Allaya Apartment situated at Wazir Hasan Road had fallen down. Fourteen persons were rescued is unconscious and seriously injured conditions who were admitted to hospital and it was suspected that several persons could have been buried under the debris. Allaya Apartment

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consisted of 13 flats and it was constructed by one (i) Mohd Tariq (the applicant), (ii) Mohd. Nawazish Shahid, and (iii) Fahad Yazdani. The construction was of very poor quality and the persons present on the site of of occurrence told some construction activity was being carried out for the past one or two days in a dangerous manner, using heavy drill machines due to which the building was vibrating. By seeing the debris, it was apparent that the construction was very weak and poor quality material was used in it.

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Initially, the F.I.R was lodged under Sections 323, 308, 420, 120-B I.P.C. and Section 7 of the Criminal Law Amendment Act. During investigation, Section 304 I.P.C. was also added and one Shahid Manzoor was also made an accused.

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The F.I.R was challenged by one of the co-accused persons Fahad Yazdani by filing Criminal Misc.Writ Petition No. 1064 of 2023 and by means of order dated 07.02.2023; a Division Bench of this Court had granted a interim protection providing that he shall not be arrested in furtherance of the F.I.R till submissions of the police report under Section 173 (2) Cr.P.C. or till discovery of any incriminating material against him.

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In the affidavit filed in support of the bail application it has been stated that the applicant is innocent and he has been falsely implicated in the present case. The applicant's criminal history has been mentioned in para 49 of the affidavit by stating that he has been falsely implicated in a complaint Case No.1279 of 2015, under Sections 148, 149, 504, 307 I.P.C. the proceedings whereof have been stayed by means of order dated 02.08.2019, passed by this Court sitting at Allahabad in Application Under Section 482 No.27949 of 2019.

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It has further been stated that the applicant and the co-

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accused Nawazish Shahid are co-owners of the Plot No.43/1, situate at Wazeer Hasan Road, Lucknow having purchased the same by means of a sale deed dated 03.07.2009 from its previous owner. The applicant claims that he and Nawajis Shahid had entered into a builders' agreement dated 26.08.2009 with another co-accused Fahad Yazdani. A copy of the aforesaid agreement has been annexed with the affidavit which shows that the aforesaid agreement is not a registered agreement. However, it is stated in the agreement that Fahad Yazdani would construct a residential building on the aforesaid land of the applicant and his co-owner, using high quality material, in accordance with law, after obtaining the necessary clearances as per the prescribed standards. The agreement states that no ownership was being transferred by the agreement and the agreement was only in respect of the construction of the building.

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The applicant's case is that the building was constructed by Fahad Yazdani and one of the flats constructed in the building, namely Flat No.103 situated on the first floor, was retained by co-accused Mohd. Tariq and the same was given to his sister Dr. Seema Khan, which was used for her residence till a few years ago. It has further been stated in the affidavit that the applicant and the co-accused Mohd Tariq reside at Meerut and the learned Counsel for the applicant has submitted that they were not actively involved in construction of the building at Lucknow.

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The State has filed a counter affidavit annexing therewith copies of the materials collected during investigation, including the statements of the informant, as also of some other witnesses.

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One of the victim's Mohd. Abbas Haider has also filed a counter affidavit opposing the bail application and it has been stated therein that his wife and mother died in the incident. A

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copy of the letter dated 12.02.2023 given by Mohd. Abbas Haider to the Station House Officer, Police Station Hazratganj has been annexed with the aforesaid counter affidavit wherein he stated that his wife and mother died due to suffocation after getting buried in the debris of the apartment and his son Mustafa and father Amir Haider suffered serious injuries in the incident. He stated in the complaint that the building was owned by (i) Shahid Manzoor (ii) Nawazish Shahid (the applicant)(iii) Azam Malik (iv) Mohd. Tariq. For the past few days, a bathroom and kitchen were being constructed by the owner of the building in the setback area in an illegal manner by using heavy drill machines and interference had been made with the main beam of building due to which the entire building got weakened and it fell down on 24.01.2023. He has further stated in the complaint that in the CCTV footage it is recorded that Shahid Manzoor were getting some illegal constructions raised since five days prior to the incident and the accused persons had knowledge that the building had got damaged because of the fundamental changes being made to the structure of the building and it could have fallen down at any time, yet they put the lives of the residents of the building in danger. The statements of the witness Mohd. Abbas Haider recorded under Section 161 Cr.P.C. has been annexed with the counter affidavit filed by the State wherein he reiterated the aforesaid stand.

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The Statements of several other witnesses have also been recorded by the Investigating Officer, copies whereof have been annexed with the counter affidavit filed by the State and all of them have stated that some work was being carried out by Shahid Manzoor, the floor of the parking area had been dug out and pits had been dug using drill machines and the building was vibrating by use of the drill machines. Most of them stated that the building was constructed by Fahad Yazdani, builder and

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several of the witnesses have stated that the work was being carried out in supervision of Shahid Manzoor.

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A rejoinder affidavit has been filed on behalf of the applicant annexing therewith copies of order dated 21.03.2023, passed by this Court in Criminal Misc. Writ Petition No.2085 of 2023, whereby this Court has stayed the arrest of Shahid Manzoor till submission of the Police report under Section 173 (2) of Cr.P.C.

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Having considered the aforesaid facts and circumstances and submissions advanced by learned counsel for the respective parties, what prima facie appears from the material placed before this Court at this stage is that the applicant and the coaccused Mohd.Tariq had purchased a piece of land in the year 2009, on which a building was constructed immediately after purchase of the same. The applicant claims that the building was constructed through Yazdani Builders, of which the coaccused Fahad Yazdani is the proprietor which fact is disputed by the learned counsel for the victims. A Copy of the builders' agreement executed between the co-owners of the land in question and Yazdan Builders has been annexed with the affidavit filed in support of the bail application, although the same is unregistered. Several of the witnesses examined by the investigating Officer have stated that the building was constructed by Yazdan Builders, of which co-accused Fahad Yazdani is a proprietor. The witnesses have stated that some construction activity was being carried out in the building for about four to five days since prior to the incident in question. None of them have stated that the applicant was actively involved in the construction actively carried out in the building in proximity of the incident and nobody has stated about their presence on the spot during the construction of the activity. On

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the contrary, the witnesses have specifically stated that the construction work was being carried out in supervision of other co-accused persons Shahid Manzoor, Azam Malik.

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Shahid Manzoor has already been granted protection order arrest by means of an interim order dated 21.03.2023 passed by a Division Bench of this Court in Criminal Misc. Writ Petition No. 2085 of 2023. Fahad Yazdani, regarding whom several of the witnesses stated that he had constructed the building, has also been granted protection from stay by means of order dated 07.02.23 passed by a Division Bench of this Court in Criminal Misc. Writ Petition No. 1064 of 2023.

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Sri Anoop Trivedi, Senior Advocate has relied upon a decision of the Bombay High Court in Abdul Salim Shaikh (Siddique) Vs. The State of Maharashtra, Criminal Bail Application No. 850 of 2014 along with other connected matters, decided on 14.11.2014, wherein the Bombay High Court held that knowledge is necessary for constituting an offence punishable under Section 304 of the I.P.C. In the factual background of collapse of a building resulting in death of 74 persons, The Bombay High Court held as follows :-

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"Be that as it may, what needs to be understood is that because of the collapse, the applicants have suffered financial loss. When the idea of the applicants was to construct a building though illegally - and obtain profit from such activity, how could they knowingly permit the collapse of such a building? Collapse of the building, if could have been foreseen or reasonably contemplated by the applicants, would have been prevented by them, atleast till their entire money would be recovered with profit. Therefore, in such a case, it would be contrary to common sense to accept that the applicants had knowledge that death would be caused by their act of construction which would be necessary to bring the offence committed by them within the penal provisions of section 304 Part II of the IPC. The applicants had certainly taken great

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efforts in an attempt to construct a building, such as procuring land illegally, by investing monies for purchase of material, by engaging a contractor and an Architect, by bribing the municipal officers and obviously, these efforts would not have been undertaken by them, if they had not been hoping that the building would be successfully constructed and the flats/units would be sold, enabling them to recover the monies invested by them in the project, with satisfactory returns/profit.That the applicants continued the construction work despite possible obstacles though they had knowledge' that the building would ultimately collapse before it could be sold out, (and their money would be recovered with profit) is a theory the absurdity of which is self evident.

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The theory of the applicants having 'knowledge' is pressed on the basis that the applicants were aware of the danger and the risk involved in the said construction work. This awareness sought not to be confused with knowledges contemplated by section 299 IPC. It must be clearly understood that knowledge on the part of the offender about the possible danger or risk involved in his rash or negligent act, is implicit even in the penal liability u/s. 304 A of the IPC. In fact, if there would be no such knowledge, there would be no criminal liability - even under section 304 II IPC at all. The knowledge contemplated by section 299 is of a different nature and degree, and not of the type that is implicit in the concept of criminal rashness or criminal negligence, contemplated by section 304 A of the I.P.C."

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Without making any observation, which may affect the merits of the case, I am of the view that the aforesaid facts coupled with the fact that two of the other co-accused persons, regarding whom the witnesses have stated that they were involved in the construction actively carried out either at the inception or at the time in close proximity with the incident, have already been granted protection, as also the fact no person had stated that the applicant was getting the work carried out in proximity of the incident,I am of the view that the applicant is entitled to be released on bail.

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Accordingly, this bail application stands allowed.

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Let the applicant- Nawazish be released on bail in Case Crime No. 35 of 2023, under Sections 304, 308, 323, 420, 120B I.P.C. and Section 7 Criminal Law Amendment Act, registered at Police Station Hazratganj, District Lucknow, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court.

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