Partly allowed

Sudhir Vasudeo Borkar v. the State of Maharashtra

Bombay HC19 Dec 2019ABA/1868/2019

Case brief

AI extract

What is this about?

The Bombay High Court rejected anticipatory bail for a development partner who allegedly knew of wall cracks and failed to act concerning labourers housed nearby, but granted bail to a construction contractor who lacked post-construction control and knowledge of the huts' location.

What did the court decide?

Anticipatory Bail Application No. 2205 of 2019 rejected; Application No. 1868 of 2019 allowed with ₹25,000 bond and monthly reporting.

Sudhir Vasudeo Borkar Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CR. ANTICIPATORY BAIL APPLICATION NO. 2205 OF 2019

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Vishwas Manohar Dangat ....Applicant V/S The State Of Maharashtra ....Respondent

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WITH

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CR. ANTICIPATORY BAIL APPLICATION NO. 1868 OF 2019

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Sudhir Vasudeo Borkar ....Applicant V/S The State Of Maharashtra ....Respondent

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Mr. Hrishikesh Mundargi, Advocate For Applicant in ABA No. 2205 of 2019.

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Mr. D.S.Mhaispurkar, Advocate for Applicant in ABA No.1868 of 2019. Mr. P .P. Shinde APP for State/Respondent

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CORAM : PRAKASH D. NAIK, J. DATE : 19^th December, 2019

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PC :

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The applicants in both these applications are apprehending arrest in C.R. No. 467 of 2019 registered with Bharti Vidyapeeth Police Station, Dist. Pune for offences punishable under Sections 304, 308, 337 and 338 and 34 of IPC.

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The applicants in Anticipatory Bail Application No.2205 of 2019 are partners in partnership firm M/s. Shree Samartha Construction Group. They had undertaken the land bearing S.No. 10/10 Village Ambegaon Budruk, Haveli, Pune for development from

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its owners Mr. Sakharam Ganpat Kondhare and others by development agreement and Power of Attorney dated 23^rd April 2015. The applicant in Anticipatory Bail Application No. 1868 of 2019 is propprietor of M/s. Abhishek Construction. He was given work order on 16^th July, 2010 by Sinhagad Technical Education Society for construction of compound wall.

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The prosecution case is as follows.:

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On the night of 1^st July, 2019 at about 11.50 p.m. the complainant received a call from the police station officer that the compound wall adjoining Mrs. Venutai Chavan Polytechnic college at Vadgaon, Ambegaon Budruk has collapsed. Since Sinhagad College comes within the jurisdiction of Ambegaon Beat Marshals the representative of the bit chowki reached the place of the incident and confirmed with control room that the stone compound wall adjoining Mrs. Venutai Chavan Polytechnic college and Sinhagad Technical Education Society had collapsed and the huts along the wall were buried under the brick, stone debris of the wall with the labourers residing in the huts. The Fire Brigade team arrived and injured taken to the hospital. During the search and rescue operation they pulled out 16 laborers out of which 6 had died and 10 were injured. The place of incident is an open space approximately 80 to 100 feet in

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length which has 12 feet stone wall with 4 feet brick construction over it. It was alleged that along the wall is Sinhagad Technical Education Campus Pune, Students activity Centre and Venutai Chavan Polytechnic College. There is an open space for parking plot and and fire floor building under construction. The labourers employed for construction activity were given temporary residence in the huts along the wall. Cracks in compound walls were ignored and no steps were taken to strengthen the wall or repair. The respective authorities, the owner of the said property, the builder as well as the construction contractor did not take any repairing work to strengthn wall. The construction authority builder and contractor knowingly accommodated their construction laborers in the temporary bamboo and teen huts along the weak compound wall which had cracks and absorbing water due to heavy rain, resulting in collapse on these huts leading to the entrapment of 16 Persons.

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The applicants had preferred application for anticipatory bail before the Sessions Court were rejected on 19^th August, 2019 & 4^th September, 2019.

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Learned counsel for the applicant in Anticipatory Bail Application No.2205 of 2019 submitted that the charge under Section 304 -II or any other Penal provisions cannot be attributed to

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the applicant. It is submitted that the knowledge which is requisite to constitute the offences of culpable homicide not amounting to murder as envisaged under the provision of Section 304 (2) cannot be attributed to the applicants. The applicants are not responsible for collapse of wall. The applicants were not concerned with the construction of wall or taking in precautionary measures for repairing the wall. The wall was constructed several years ago and collapsed on account of its condition. The institute planted trees close to wall. The technical report by engineering college states that construction quality is poor. It was unsafe. It is submitted that the labourers were working for labour contractor or and they were deployed by the said contract at various places. The huts were erected at his instance. The laborers had not informed the applicant about any apprehension of danger to their life on account of dilapidated condition of the wall. The applicant were not concerned with the incident of the collapsed of wall which has resulted in injuries and casualties to the laborers. The owners of the land and others were granted anticipatory bail. The applicants had tendered additional affidavit stating that the charge-sheet in respect of FIR has been filed by the investigating machinery on 17^th September, 2019 and on perusal of the charge-sheet it is apparent that the compound wall had collapsed on the night of 1^st July, 2019. There was much

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distance between the wall and the huts. Several trees were planted behind wall by Mrs. Venutai Chavan Polytechnic college after the construction of the wall and there was students activities center. Behind the said wall in the space between the said wall and the permanent structure of the college, there was underground storm pipeline which runs parallel to the said wall. That the huts of the laborers were constructed on the other side of the wall at the distance of about 10 feet from the said wall. The applicant have relied upon photographs which are annexed to this affidavit and it is contended that it can be seen that trees alongside the wall were planted above storm water pipeline. As a result of this roots of the tress could not seep into soil on account of obstruction of pipelines underneath. As the roots would not grow downwards in to the soil, they had grown in such a way that they seeped into the wall affecting the strength said wall. It is submitted that the observations made by the City Engineer PMC indicates that trees were wrongly planted over a pipelines which had weakened the wall. It is submitted that report by Pune Muncipal Corporation mentions that the retaining wall retained back fill soil of varied height 2.4 M to 2.5M. In the open space between retaining wall and building trees are seen. Trees behind wall have cracked into masonry structure seepage increased the pressure on the wall. It is submitted that in the

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aforesaid circumstance custodial interrogation of the applicant were not warranted and they have willing to cooperate with the investigation.

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Learned advocate appearing in Anticipatory Bail Application No. 1868 of 2019 submitted that he had no control over the wall which was constructed in 2010. The responsibility to get the wall repaired was with the Sinhagad Technical Institute. On 7^th July, 2011 the applicant had written letter to the institution to release the balance amount which was withheld as security deposit for 6 months. The said amount was related since construction was done by applicant in accordance with specification. He was not assigned work to look after maintenance of wall. It is further submitted that the concerned college had carried out the construction by increasing the height of the wall which is apparent from the statement of Mangesh Ranka recorded on 6^th July, 2019 which is affirmed in the chargesheet filed against the accused. He further submitted that the contractor carried out the repairs of the wall of the extending its height was also impleaded the accused which appears from applicant forwarded by police to the learned J.M.F.C. for recording statements under Section 164 of Cr.P.C. In the said application M/s. Shree Samartha Construction Group was shown as an wanted accused. It is submitted that the said accused has not been arrested. He further

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submitted that the damage to the wall was caused on account of the growth of trees and seeping of root of trees into wall. The applicant had no occasion to supervise the condition of the wall at the relevant time. Hence, the applicant cannot be attributed with any knowledge required to constitute the offence under Section 304 -II.

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Learned APP submitted that the offence is of serious in nature. The negligence on the part of the accused had resulted in death of six persons and injuries to ten persons. Learned App relied upon the report with regards to the construction of wall and its strength which indicate that the construction was weak. She relied on technical reports by corporation and Pune Engineering College. It is further submitted that the applicant in Anticipatory Bail Application No. 2205 of 2019 were aware about the dilapidated condition of the wall and in spite of fact that huts were erected to accommodate laborers. She further submitted that the accused were informed about the condition of the wall and apprehension of danger by persons occupying the huts. In spite of information provided to them no action was initiated. They had knowledge that any untoward incident may occurre causing danger to the life of the persons occupying huts which were situated near the compound wall. It is further submitted that the investigation is in progress and this is not the stage of evaluating the evidence. Prima facia involvement of the

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applicants is disclosed during the investigation and therefore the applicants are not entitled for anticipatory bail.

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I have perused the documents. The case of the prosecution is evident from the FIR and the investigation papers. The compound wall was constructed in 2010. The applicant in Anticipatory Bail Application No. 2205 of 2019 had undertaken the contract of development. On 1^st July, 2019 the compound wall had collapsed on the huts of the labourers in which six persons died and 10 others were injured. The investigation reveals that the applicants in Anticipatory Bail Application No. 2205 of 2019 were partners of M/s. Shree Samartha Construction Group who had taken land bearing Gat No. 10/10 Village Ambegaon Budruk, Haveli, Pune for development. The huts were eracted for accommodate laborers. They were situated at close distance at the compound wall. The contention of the applicants is that the growth of trees and shifting of roots in the wall had caused the collapse. The investigation indicates that the said applicants were having knowledge that the impugned compound wall of Sinhagad Technical Education Society is in dangerous condition. It is also the case of the prosecution that there were huts were installed adjacent to the wall and in spite of fact that the laborers have brought to the notice of the said fact to applicants that the wall is in dangerous condition and that there is possibility of

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collapse no action was taken. The statement of the witnesses labourers mention that they have stated that they had brought to the notice the dilapidated condition of the wall. and possibility that the same would collapse on the huts. Although assurances were given huts were not shifted to safe location. The applicants in Anticipatory Bail Application No. 2205 of 2019 had submitted that wall has collapsed due to its condition and seepage of roots and growing of trees. In the situation it was expected that instant steps could have been taken atleast after condition of wall was brought to their notice.

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As far as the applicant in anticipatory bail application No. 1868 of 2019 is concerned it is apparent that on the work order issued by Sinhagad Technical Education Institute, the wall was constructed by him in 2010. It also appears from the statement of one of the witness that subsequently the height of the wall was increased. The evidence do not disclose that the said applicant had any control over the wall after it was constructed. Although the technical report mentions that construction was weak, it is relevant to note that changes were brought in wall. He cannot be attributed knowledge that huts were erected when he is not concerned with maintenance. The subsequent contractor who had allegedly carried out the extension of the wall shall showed as an accused apparent from application forwarded for recording statement under Section

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164 of Cr.P.C. filed before the concerned court. In the factual matrix of the case is the said applicant can be granted protection under Section 438 of Cr.P.C. Prima facie is required under the penal provisions.

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However considering the observation herein above and in the light of material on record the applicants in Anticipatory Bail Application No. 2205 of 2019 are not entitled for grant of anticipatory bail.

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Hence, I pass the following order.

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O R D E R

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i) Anticipatory Bail Application No. 2205 of 2019 is rejected;

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ii) Anticipatory Bail Application No. 1868 of 2019 is allowed. iii) The interim order dated 30^th August, 2019 passed in Anticipatory Bail Application No. 1868 of 2019 is hereby confirmed. In the event of arrest of applicant Sudhir Borkar in C.R. No. 467 of 2019 registered with Bharti Vidyapeeth Police Station, Dist. Pune, he be released on bail on furnishing P. R. Bond in the sum of Rs.25000/- with one or

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more sureties in the like amount;

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iv) The applicant shall report concerned police station once in a month on every first Saturday between 10.00 am. to 12.00 pm. till filing of charge sheet.

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v) Applications stand disposed of accordingly.

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(PRAKASH D. NAIK, J.)

Sudhir Vasudeo Borkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sudhir Vasudeo Borkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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