Gopal Namdevrao Nichal And Others vs State Of Maharashtra, Through ...
2016 Latest Caselaw 4073 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                          NAGPUR BENCH, NAGPUR.

               CRIMINAL              APPLICATION (apl)   No. 718 OF 2015




                                                         
    (1) Gopal Namdevrao Nichal
        aged about 70 years, Occupation : Retired,
        (Dy. Engineer, Z.P. Works,




                                                        
        Sub Division, Balapur, H.Q. Akola)
        r/o Ganesh Nagar, Chhoti Umari,
        Akola.




                                             
    (2) Arvind Bhaskarrao Pachpor,
        aged about 53 years, Occupation : Sectional Engineer,
        (Z.P. Works, Akola),   
        r/o Akola Phata, Malegaon,
        District Washim.
                              
    (3) Mohammed Ishaque Mohammed Yunus,
        aged about 42 years, Occupation : Contractor,
        r/o Near Noori Masjid, Haque Colony,
        Akola.                                   .... APPLICANTS.
      


                              VERSUS
   



    The State of Maharashtra
    through P.S.O. P.S. Patur,
    District Akola.                                           ....  RESPONDENT.





    Shri Anil Mardikar, Sr. Advocate a/w Shri R.R. Vyas Advocate for the Applicants.
    Smt. M.S. Naik, APP, for the respondent.
                                        .....





                                          CORAM : S.B. SHUKRE, J.

DATED : 22.07.2016.

ORAL JUDGMENT :

Heard learned senior counsel for the applicants and

learned APP for the State. Admit.

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2. Heard finally by consent of the parties.

3. All these applicants are being prosecuted vide

Summary Criminal Case No. 270 of 2000 for the offences

punishable under Sections 304-A and 337 read with Section 34 of

Indian Penal Code.

4. The allegation against them is that the applicant no.3, who

is a contractor, executed the work of construction of a gate fixed

upon two pillars in the barbed wire fencing that surrounds a

meeting hall constructed for social purpose from out of the funds

available to the Member of Parliament of the concerned

constituency, and it being of low quality not meeting the

requisite standards resulted in falling of a pillar on which one of

the shutters of iron gate was fixed. It is also alleged that the

applicants 1 and 2 being the Deputy Engineer and Sectional

Engineer joined hands with the applicant no. 3 in deliberately

lowering down the quality of construction of the pillar and thus all

these applicants were alleged to be responsible for the causing of

accidental death of one boy and injuries to another boy.

5. The applicants filed an application under Section

239 of Criminal Procedure Code seeking their discharge from the

case contending that the charge against them was groundless,

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there being absolutely no evidence available on record showing

any criminal act having been committed by them. The applicants

relied upon the certificate dated 27.4.2000 forming part of the

charge-sheet issued by the then Executive Engineer, Akola.

These contentions, however, failed to impress the learned

Magistrate as well as the learned Additional Sessions Judge

exercising revisional power and the result was that there are

concurrent findings to the effect that this is not a fit case for

discharging these applicants under Section 239 of Criminal

Procedure Code.

6. I have heard learned senior counsel for the

applicants and learned APP for the respondent/State. I have gone

through the paper-book of the case, in particular the impugned

orders and the certificate dated 27.4.2000 issued by the

Executive Engineer.

7. It is seen that the prosecution case is based upon

the allegation that the pillar which suddenly crumbled to the

ground on 19.4.2000, thereby causing death of one child and

causing injury to another, was constructed in low quality material

and did not have the capacity to bear the weight of the iron

shutters of the gate. Such allegation would obviously require

support from technical persons and their opinion strengthened by

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the minute inspection made by them would be of extreme

relevance, rather in the absence of such technical support, the

prosecution case would not move even an inch further. It is an

admitted fact that the prosecution indeed obtained such technical

support and it is in the nature of the certificate dated 27.4.2000

issued by the Executive Engineer, Akola. This certificate, as

stated earlier, forms part of the charge-sheet filed against these

applicants. The author of this certificate is Shri Maqsood Ahmed,

the then Executive Engineer, and admittedly he has been cited as

one of the prosecution witness. Unfortunately, his statement has

not been filed along with the charge-sheet and, therefore, it is not

known as to what he may have stated before the Investigating

Officer. But, this certificate dated 27.4.2000 is very much

available for its due consideration. Upon closer examination of

this certificate, one astonishing fact comes to the surface and it

is that this certificate completely exonerates all the applicants. It

certifies in no uncertain terms that the quality of construction of

the pillar was up to the mark and that the material used for its

construction was also of standard quality. It also states the

reasons for caving in of the pillar. According to the Executive

Engineer, the construction of this pillar was completed on

22.12.198. In fact, that is the date on which the possession of

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the pillars was handed over to the user agency and thereafter it

was noticed that the shutters of iron gate affixed to the pillars

were being used by the children as swings and such user of the

iron shutters of the gate resulted over a period of time in

weakening of the subterranean strata of the soil below the

pillars, thereby making one of the pillars fall down to the ground.

It is clear from this certificate that neither any blame has been

placed upon any of the applicants nor the quality of construction

of the pillars has been faulted with. So, this certificate, on which

reliance has been placed by the prosecution, completely washes

away its own case and then one wonders what could possibly be

the other material on the basis of which these applicants are now

being sought to be prosecuted for the offences punishable under

Section 304-A and 337 read with Section 34 of Indian Penal Code.

8. On going through the paper-book, which contains

copy of the charge-sheet, I find that there is no such other

material present therein on the basis of which it could be said

that there is something which goes against these applicants and

prima facie it incriminates them in the offences for which they are

being prosecuted. No other certificate from an expert in the field

has been obtained or even attempted to be obtained. On the

contrary, it would not be an exaggeration to say that the very

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foundation of the prosecution case, the certificate dated

27.4.2000 issued by the Executive Engineer, Akola, does not

strengthen its case and clearly makes the charge against these

applicants as groundless.

9. All the aforesaid aspects, it is seen from the

impugned orders, have not been considered at all by the courts

below. The learned Additional Sessions Judge in his order dated

19.8.2015 has commented upon the type of the soil, "black soil",

and the expectation of a common man regarding the manner in

which the pillar should be erected upon the foundation of a black

soil. The learned Additional Sessions Judge has expressed an

opinion that the pillar was constructed in black cotton soil and,

therefore, it should have been constructed in a way which would

take into account the type of the soil. This is not suggested by an

expert in the field, who is the Executive Engineer and whose

certificate dated 27.4.2000 has been obtained by the

Investigating Officer. In the order it is also not suggested, by

referring to some well known books of structural engineering, as

to what type of design ought to have been used for construction

of the pillars in black cotton soil and what was the exact design

of the pillar which fell down. It appears to me that these

observations have been made by the learned Additional Sessions

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Judge perhaps on the basis of his own imagination and not by

referring to what is available on record. Such an approach is not

permissible in law. It is not open to the Court to go beyond the

record, although judicial notice of certain facts, especially those

forming part of common knowledge, can be taken. But, even for

that some material would be required and the order must reflect

its appropriate consideration. Such is not the case here.

10. In the circumstances, I find that the impugned

orders cannot be sustained in the eye of law and they must go. I

have already stated the reasons as to why the charge made

against these applicants would have to be considered as

groundless and that being so, these applicants would be entitled

to be discharged from the case. Accordingly, I am of the view

that this application deserves to be allowed.

11. The application is allowed and the impugned orders

are quashed and set aside. The application vide Ex.27 is hereby

allowed and the applicants stand discharged from the case.

JUDGE

/TA/

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