NEUTRAL CITATION
R/CR.MA/10898/2023 ORDER DATED: 03/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 10898 of 2023
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DINESHKUMAR MANSUKHRAI DAVE
Versus
STATE OF GUJARAT
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Appearance:
MR. JAL S. UNWALLA, SENIOR ADVOCATE with MR. JAIVIK UDAY
BHATT(7319) for the Applicant(s) No. 1
MR UDAY H BHATT(6457) for the Applicant(s) No. 1
MR. RAHUL SHARMA with MR UTKARSH J DAVE(10620) for the
Respondent(s) No. 1
MR .MITESH AMIN, PUBLIC PROSECUTOR with MR. MANAN MEHTA, APP
for the Respondent(s) No. 1
RONITH JOY(9560) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/11/2023
ORAL ORDER
1. By way of this successive bail application under section 439 of Criminal Procedure Code, the applicant is seeking to release him on regular bail in connection with the FIR being C.R.No. I - 11189004222003 of 2022 registered with B Division Police Station, District :- Morbi for the offences punishable under Sections 304, 308, 336, 337 and 114 of the Indian Penal Code, 1860.
2. The present application for regular bail is preferred after filing of charge-sheet.
3. Heard learned Senior Advocate Mr. Jal S. Unwalla appearing Page 1 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined with learned advocate Mr. Jaivik U. Bhatt for the applicant, learned P. P. Mr. Mitesh Amin assisted by learned APP Mr. Manan Mehta appearing for the respondent no. 1 - State and learned advocate Mr. Rahul Sharma assisted by learned advocate Mr. Utkash Dave as well as learned advocate Mr. Ronith Joy appearing for two sets of victims who sought permission of this Court to permit them to assist the Court and oppose the bail application and as they were granted permission, both learned advocate Mr. Rahul Sharma with learned advocate Mr. Utkarsh Dave and learned advocate Mr. Ronith Joy appeared, filed documents and opposed the bail application.
4. The present applicant is seeking regular bail in respect of a very unfortunate tragic incident occurred on the evening of 30.10.2022 in the Morbi City where a newly renovated cable bridge was collapsed and 135 persons lost their lives.
5. As per the FIR, the aforesaid cable bridge collapsed because of the fact that excessive number of people i.e. around 250 to 300 persons were permitted to enter the cable bridge and because of improper renovation/maintenance and without there being any checking in respect of quality etc. due to the negligence of the management, the unfortunate incident has taken place.
6. It is submitted by learned counsel appearing for the applicant that 135 persons have lost their lives.
The present applicant who his alleged to be the Manager of the Oreva Company which had undertaken the exercise of renovation of the cable bridge and it is alleged that the present Page 2 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined applicant alongwith one Mr. Dipak Parekh was supervising the renovation work.
The applicant was arrested on 31.10.2022 and was arraigned as accused no. 2 when the charge-sheet was filed.
7. Learned Senior Advocate Mr. Jal S. Unwalla appearing with learned advocate Mr. Jaivik Bhatt for the present applicant made following submissions:-
(1)That the present applicant though he termed as Manager, he was only an employee of the Oreva Company and even as per the charge-sheet, the allegations made against the present applicant is that he alongwith one Mr. Dipak Parekh was supervising the renovation work. However, as per the charge-sheet, it was the accused no. 1 who was attending the meetings with the local authority and also signing the various agreements with the local authority.
(2)There is no specific role attributed to the present applicant and merely because of his presence at the time when the renovation work was being carried out, he cannot be held responsible for the tragic incident.
(3)It was submitted by learned Senior Advocate Mr. Unwalla that even if the charge-sheet as well as S.I.T. report is considered then also to what extent the present applicant can be said to be responsible for the offence in question is a matter of evidence as the present applicant is not the only person who was alleged to have supervised the renovation work.
Page 3 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined (4)It was submitted by learned Senior Advocate Mr. Unwalla that the present applicant is not a technical person and he is only commerce graduate and therefore, it cannot be said that he was supervising the work for the reason that the commerce graduate cannot be said to be well-versed with the technical aspects of engineering and construction.
(5)Learned Senior Advocate Mr. Unwalla submitted that there are 357 witnesses and therefore, considering the fact that the trial has still not commenced as well as considering the fact that there are various applications right from adding section 302 of the Indian Penal Code as well as arraignment of company Ajanta Manufucturing Pvt. Company (Oreva Group) as an accused before the Sessions Court at Morbi is pending and therefore, there are no possibility that the trial would commenced any time soon and considering the fact that there are 357 witnesses, the trial may take its own time and therefore, the present applicant is required to be enlarged on bail.
(6)Learned Senior Advocate Mr. Unwalla submitted that the present applicant is an employee of the Oreva Group and he was not entrusted with any powers to take decision nor he has participated in any of the meetings with the local authorities and all the allegations in respect of decision making process are in respect of accused no. 1 Mr. Parekh and merely because of the allegation that the present applicant was helping accused no. 1 Mr. Parekh, his role cannot be considered to be same as that of Mr. Parekh.
Page 4 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined (7)Learned Senior Advocate Mr. Unwalla also claimed parity and submitted that as many as five accused persons are enlarged on bail by this Court and one order enlarging the person who was allegedly issuing the tickets has been confirmed by the Hon'ble Supreme Court.
(8)Learned Senior Advocate Mr. Unwalla submitted that the role of the present applicant is similar to the role of people who are enlarged by this Court as all of them were employees of the Oreva Company and were not having any control over the renovation work.
(9)It was also submitted that there is no past antecedent reported against the present applicant and therefore, the present applicant may be enlarged on bail.
8. Learned advocate Mr. Rahul Sharma appearing with learned advocate Mr. Utkarsh Dave for the victims made following submissions:-
(1)Learned advocate Mr. Rahul Sharma relied upon the statement of one Mr. Bhailalbhai Tribhuvanbhai Motka and Kantilal Bachubhai Kela and pointed out from the statement of the aforesaid two witnesses that the present applicant was supervising the renovation work and the renovation work was being carried out under their instructions as per the instructions of the owner of the Oreva Company and though they were not technical experts, the duty of supervising the renovation was entrusted upon them. It was also submitted that out of 49 cables 22 cables were corroded and despite that being supervisor, it was the duty to cure the aforesaid defect, Page 5 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined they did not perform their duty as supervisor which resulted into the tragic incident whereby 135 people have lost their lives.
(2)Learned advocate Mr. Sharma also relied upon the statement of one Sudhir Rajkumar Yadav who also has stated that the present applicant was supervising the renovation work.
(3)Learned advocate Mr. Sharma submitted that the investigation carried out by the Investigating Officer has not been carried out in proper manner and the figure of 357 witnesses would only indicate a large number of witnesses but some of the witnesses are the family members of the same victim and therefore, at the stage of trial, there is a possibility that the number of witnesses that the prosecution may choose to examine would be much less as compared to the figure shown before this Court.
(4)Learned advocate Mr. Rahul Sharma also submitted that the statement of some of the witnesses reveals that the present applicant alongwith one Mr. Dipak Parekh was looking after the work of supervision and the present applicant was helping Mr. Dipak Parekh. It was Mr. Dipak Pareskh who had participated in the meetings with the local authorities and therefore, it was the joint responsibility of the present applicant along with Mr. Dipak Parekh to carry out proper supervision and therefore, the applicant has failed to perform his duty which has resulted into this tragic incident.
(5)Learned advocate Mr. Rahul Sharma relied upon the decision of the Hon'ble Supreme Court in case of Sunil Bharti Mittal Page 6 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined V/s Central Bureau of Investigation reported in (2015) 4 SCC 609 and by relying upon the paragraph no. 39 of the aforesaid judgment, he submitted that when the Directors and Managers who represent the directing the mind and will of the company and control what they do, the present applicant being Manager of the company which was entrusted with the work of renovation, the present applicant also is equally responsible for the tragic incident and therefore, he should not be enlarged on bail.
(6)Learned advocate Mr. Rahul Sharma also pointed out that as per the 1960 Rules related to the bridge, the bridge was having capacity to have only 10 persons over the bridge. As against that around 300 persons were permitted to move on the bridge which shows the negligence on the part of the present applicant. He further submitted that excessive sale of tickets at inflated price beyond the capacity of bridge of shows greed on the part of the present applicant which has resulted into death of 135 innocent persons and therefore, they do not deserve any sympathy from this Court as the loss of lives of 135 persons is a direct result of greed of the present applicant and other co-accused persons and therefore, they do not deserve any sympathy and the application for regular bail may be dismissed.
9. Learned advocate Mr. Ronith Joy also appearing for a set of victims vehemently opposed this bail application and by relying upon the SIT report submitted that the report has been prepared by the technical experts and by pointing out the various parts of the report, he submitted that not only the Page 7 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined designs of the cable were changed but also the cables which were corroded were not repaired. Learned advocate Mr. Joy placed on record the report of SIT. The same is taken on record.
(1)Learned advocate Mr. Joy drew attention of this Court to the concluding part of the report wherein the Managing Director of Company and two managers of the company i.e. present applicant and one Mr. Dipak Parekh were prima facie help responsible for the incident. However, learned advocate Mr. Joy also fair enough to read the report its entirety and drew attention of the Court to the subsequent line of the report which also says that the apportion of the said responsibility may differ amongst them dependent upon the role played by them, meaning thereby, the persons responsible may have different apportionment of their responsibility.
(2)Learned advocate Mr. Ronith Joy who vehemently opposed the bail application adopted rest of the submissions made by learned advocate Mr. Rahul Sharma.
10. Learned P.P. Mr. Mitesh Amin appearing with learned APP Mr. Manan Mehta for the respondent - State vehemently opposed the bail application and submitted that it is true that the present applicant is alleged to have supervise the renovation work alongwith the co-accused Dipak Parekh and one Mr. Mansukh Topiya. However, pursuant to various queries from the Court, learned P.P. Mr. Amin could not point out that role of the present applicant is akin to the role of Mr. Dipak Parekh who attended the meeting with local authorities and signed the MOUs. Learned P. P. Mr. Amin submitted that Page 8 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined the present applicant is named in the statement of as many as three witnesses and according to the three witnesses, whose statement is also relied upon by learned advocate Mr. Rahul Sharma, the role attributed to the present applicant is that of supervising the renovation work. It was submitted by learned P. P. Mr. Amin that the present applicant is also one of the person who was supervising the renovation work and therefore, he may not be enlarged on bail.
11. In rejoinder, learned Senior Advocate Mr. Jal S. Unwalla appearing for the applicant submitted that the present applicant cannot be charged with the aspect of vicarious liability as the sections under which the offence is registered does not provide for an offence by way of vicarious liability. Learned Senior Advocate Mr. Unwalla in rejoinder, also submitted at bar that parameters of bail are well known and as the present applicant is not likely to abscond or is at flight risk nor there is any antecedent reported against him, he may be enlarged on bail.
12. To the aforesaid submissions, learned advocate Mr. Rahul Sharma drew attention of the Court that considering the grant or refusal of bail, gravity of offence is also vital consideration and the Court may consider the aforesaid aspect about gravuity of the offence also while considering the bail application of the present applicant.
13. I have heard learned advocates for the respective parties and perused the record. There cannot be two opinion about the gravity of unfortunate incident whereby 135 persons have lost their lives of-course, this is one of the saddest and one of the most unfortunate incident, however, on perusal of record, I Page 9 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined found that the present applicant is in jail since last more than one year, charge-sheet is filed and investigation is over now atleast qua the present applicant.
14. I have also considered the fact that the present applicant is an employee of the Overa Group drawing a salary of Rs. 1130/- per day though he termed as Manager, prima facie, as can be seen from the statement of witnesses relied upon by learned advocate Mr. Sharma as well as learned P.P. Mr. Amin that the present applicant was following the instructions of Managing Director of the company alongwith Mr. Dipak Parekh - accused no. 1 and he was also looking after the supervision. Further it is the case of the prosecution right from the beginning that as the supervision was entrusted to non technical person who were not expert that resulted into this tragic incident. The fact as emerges prima facie that the present applicant is not a technical person and is commerce graduate and therefore, to what extent, he can be held responsible for this tragic incident is a matter of evidence. Further it is an undisputed fact that the present applicant is an employee of the company who was following the instructions of the Managing Director of the company. Even if he was alleged to be a supervisor, prima facie, as per the statement of the witnesses, it seems that the present applicant did not attend any of the meeting with the local authorities and therefore, prima facie, it indicates that he was not involved in decision making process.
15. I have also considered the fact that five co-accused persons who are also employee of the company are enlarged Page 10 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined on bail by this Court. Two of them Mr. Mansukhbhai Valjibhai Topiya and Mr. Mahadevbhai Lakhabhai Solanki who had alleged to be a person who were issuing ticket are enlarged by the Coordinate Bench and order granting bail to the co- accused Mr. Mansukhbhai Topiya was carried before the Hon'ble Supreme Court where the Hon'ble Supreme Court vide order dated 07.08.2023 passed in S.L.P. (Crimal) (Dairy) No. 27055 of 2023 has dismissed the S.L.P. preferred by the Tragedy Victim Association Morbi. Further Mr. Mansukh Topiya is also alleged to have supervised the renovation work and therefore, the role of the present applicant prina facie, seems to be similar to the roe attributed to Mr. Mansukhbhai Topiya as per the charge-sheet papers.
16. Further other co-accused viz. Mr. Mukeshbhai Dalsinghbhai Chauhan vide order dated 04.05.2023 passed Criminal Misc. Application No. 5418 of 2023, Mr. Alpesh Galabhai Gohil vide order dated 04.05.2023 passed in Criminal Misc. Application No. 5407 of 2023, Mr. Dilipbhai Galabhai Gohil vide order dated 04.05.2023 passed in Criminal Misc. Application No. 5414 of 2023, Mr. Mansukhbhai Valjibhai Topiya vide order dated 09.06.2023 passed in Criminal Misc. Application No. 9145 of 2023, Mr. Mahadevbhai Lakhabhai Solanki vide order dated 09.06.2023 passed in Criminal Misc. Application No. 8906 of 2023 who are also the accused persons and are the employees of the Oreva Company are enlarged on bail by the Coordinate Bench of this Court and therefore, on the ground of parity also, I inclined to consider the case of the present applicant.
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17. Further, I am conscious about the fact that there are 357 witnesses and there are pending application before the Trial Court, therefore, prima facie, it seems that there is no possibility that the trial will commence any time soon. I also considered the fact that there are no past antecedents reported against the present applicant and to secure the presence of the present applicant suitable condition can be imposed upon the present applicant.
18. Of-course, there cannot be two opinion about the fact that the incident is absolutely tragic and one of the most unfrotunate incident whereby 135 people lost their lives but at the same time, the role attributed to the present applicant is also required to be considered by keeping the aforesaid fact in mind. Therefore, considering the aforesaid material on record, I considered this application.
19. Hence, in view of the aforesaid above discussion, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No. I - 11189004222003 of 2022 registered with B Division Police Station, District :- Morbi on executing personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
Page 12 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined [a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave India till the trial is over without prior permission of the Sessions Judge;
[e] furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;
[f] mark his presence before the concerned police station in the first week of every month till the trial is over;
[g] not enter into Rajkot and Morbi Districts till the trial is over without prior permission of the Sessions Judge except for attending the court proceedings;
20. The Authorities will release the applicant only if the applicant is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Page 13 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023 NEUTRAL CITATION R/CR.MA/10898/2023 ORDER DATED: 03/11/2023 undefined Court while enlarging the applicant on bail.
21. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 14 of 14 Downloaded on : Mon Nov 06 20:40:06 IST 2023