Ashok S/O. Muktaji Pawale vs The State Of Maharashtra And Anr
2018 Latest Caselaw 189 Bom

                                       1                Cri.W.P.1494-17.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


            CRIMINAL WRIT PETITION NO.1494 OF 2017


             Shri. Ashok Muktaji Pawale,
             Age 68 years, Occu. Retired,
             R/o Shri Bunglow, Kirloskar Colony,
             Ahmednagar.                     ...  Petitioner

                      Versus

     1.      The State of Maharashtra
             Through Police Station Officer,
             Camp Police Station Bhingar, 
             Distrct - Ahmednagar.

     2.      Prakash Pote S/o Mohan Pote,
             Age - Major,
             R/o Nimbodi, Ahmednagar.                ... Respondents

                                     ...
     Adv.   Pradnya   S.   Talekar   h/f   Talekar   and   Associates, 
     Advocate for Petitioner
     Mr. D.R.Kale, APP for Respondent No.1 - State 
                                     ...

                            CORAM :        S.S.SHINDE AND
                                           MANGESH S. PATIL, JJ.

RESERVED ON : 17th November, 2017 PRONOUNCED ON : 09th January, 2018

JUDGMENT : (Per Mangesh S. Patil, J.) :-

Rule. The Rule is made returnable forthwith.

Heard finally with the consent of the learned advocate

2 Cri.W.P.1494-17.odt

for the Petitioner and the learned APP.

2. By way of this Writ Petition filed under Article 226

of the Constitution of India read with Section 482 of the

Criminal Procedure Code, the petitioner being one of the

accused from Crime No.173 of 2017 registered under

Section 304 read with Section 34 of the Indian Penal

Code at Camp Police Station Bhingar, District

Ahmednagar, is praying to quash the FIR.

3. Shortly stated the facts leading to the filing of this

Writ Petition are as follows :

In an unfortunate incident on 28.08.2017, a slab

and a wall of a Class Room of Zilla Parishad Primary

School, Limbodi, Taluka and District Ahmednagar caved

in causing death of three students studying in 5 th

standard and injuring 18 other students. As usual, the

Government Machinery moved. The Chief Executive

Officer of the Zilla Parishad directed an inquiry to be

conducted and the inquiry report (Exh-B) was received

on 31.08.2017. It was found that the project for

3 Cri.W.P.1494-17.odt

construction of the room had received technical

sanction from the Executive Engineer P.W.D. on

18.08.1997. The foundation was laid in a black soil.

The proportion of Bed Concrete as prescribed was not

maintained. When the construction was to be carried

out in cement mortar in the proportion of 1:6, in fact it

was found that the construction was not carried out by

maintaining the proportion. It was also expected that

there should have been a proportion of 60:40 in respect

of unskilled work and skilled work. But there was a

possibility of even this ratio having not been maintained.

The stones of prescribed length which should have been

used for laying the header was not used. It was then

concluded that the construction was faulty for the

aforementioned reasons. The persons i.e. the Sarpanch

and the Gram Sevak as well as the Sectional Engineer

and Deputy Engineer who were then posted during the

period in which the room was constructed are

responsible for the mishap.

4. Father of one of the students who has died in the

4 Cri.W.P.1494-17.odt

incident lodged the report on 31.08.2017 and the offence

has been registered as mentioned herein above.

5. According to the learned Advocate for the

petitioner, although the project for construction of the

class room was sanctioned in the year 1997, the work

was actually completed in the year 2001. The petitioner

had only worked as a Deputy Engineer for the first 9

months of the project and was transferred before its

completion. There were several other causative factors

like heavy rain fall and accumulation of rain water

which has resulted in dampening of walls. There was

neither any intention nor knowledge on the part of the

petitioner to cause death. The class room was

abandoned because of its weak structure but still the

Head Mistress had allowed it to be used as a Class

Room since about 2 weeks next before the incident and

therefore, she alone was responsible for causing the

deaths. There was only a limited role to be discharged

by the petitioner of forwarding the estimate prepared by

the Junior Engineer to the Executive Engineer and to

5 Cri.W.P.1494-17.odt

issue completion certificate. He was not involved any

further and therefore was not responsible for

maintaining the quality or standard of the construction

which responsibility was vested with the Junior

Engineer. The Gram Sevak and the Sarpanch were

supposed to supervise the work as per the Government

Resolutions and the circulars. Therefore applying the

principles laid down in the case of The State of

Haryana Vs. Bhajan Lal and others; AIR 1992 SC

604, the allegations against the petitioners are

inherently improbable.

6. The learned Advocate also submitted that all the

necessary ingredients for constituting the offence

punishable under Section 304 of the Indian Penal Code

cannot be made out from the FIR. The petitioner has

retired long back and now he has to face prosecution for

something for which he is not responsible and after a

lapse of more than 20 years. He would face harassment

and even therefore the FIR is liable to be quashed.

7. The learned Advocate also referred to the decision

6 Cri.W.P.1494-17.odt

in the case of (i) Shantibhai J. Vaghela & anr. Vs.

State of Gujarat & ors. [(2012) 13 Supreme Court

Cases 231], (ii) Mahadev Prasad Kaushik Vs. State of

Uttar Pradesh [(2009) 2 Supreme Court Cases (Cri)

834] and submitted that in order to attract the offence

punishable under Section 304 of the Indian Penal Code

mere omission, lapse or negligence on the part of the

accused is not sufficient. There should be some more

positive act.

8. The learned APP strongly opposed the application.

He submitted that considering the nature of the duties

that were supposed to be performed by the petitioner,

his involvement in causing death of children is

apparent. The construction of the room was undertaken

during the period when he was working as a Deputy

Engineer. The foundation was erected and even the

construction up to lintel level was carried during his

tenure. As a result of the inquiry, it has been revealed

that he was responsible for ensuring the quality of the

construction. He should have carefully supervised the

7 Cri.W.P.1494-17.odt

construction of the basement. It is a failure on his part

to inspect the quality of foundation. Considering the

fact that in the Inspection Report it has been found that

the quality of construction of foundation was also not as

per the prescription, knowledge can certainly be

attributable to the petitioner that for want of sound

foundation there was likelihood of collapsing the

construction standing thereon. Even the knowledge can

be attributed to him that the class room was being

constructed and it would be occupied by children.

Therefore, in the facts and circumstances, it can be said

that the petitioner had the knowledge that in case of

construction coming down it would certainly cause

death of the children. The allegations in the FIR and

the result of the investigation would attract the offence

under Section 304 read with Section 34 of the Indian

Penal Code. The learned APP also referred to the papers

of the investigation and pointed out that the duty list of

the petitioner for the relevant time clearly shows that it

was a part and parcel of his duty to supervise the

construction being carried out and since the

8 Cri.W.P.1494-17.odt

construction of the basement and the brick work upto

lintel level was carried out during the period during

which the petitioner was working as a Deputy Engineer,

the responsibility for sound construction to that extent

was on him.

9. We have carefully gone through the papers

annexed to the petition as also the papers of the

investigation with the able assistance of the learned

Advocate for the petitioner and the learned APP. There

can be no dispute that the project for construction of

the class room had received sanction in the year 1999.

But it was actually completed after many years in the

year 2001. However it is also a fact admitted that the

petitioner was working as a Deputy Engineer with Zilla

Parishad from 17.08.1996 to 25.06.1999. It is therefore,

quite clear that for about 9 months before he was

transferred, the construction of the room was going on.

It is admitted that the class room was constructed

under Employment Guarantee Scheme. A resolution

was passed by Gram Panchayat on 25.08.1998 for

9 Cri.W.P.1494-17.odt

carrying out such construction under that scheme. It is

also admitted that the applicant was involved in

commencing the construction being a Deputy Engineer

of the Zilla Parishad. The technical sanction was also

obtained by him from the Executive Engineer of the Zilla

Parishad and the proposal for that purpose was

prepared and submitted under his signature. The

Investigating Officer has also collected a duty list

apparently showing that it was the duty of the Sectional

/ Deputy Engineer inter alia to prepare estimates of the

constructions to be carried out by Gram Panchayats

and to give technical advice. It was also the duty to

supervise the construction of the work being carried

out. It was then also his duty to provide technical

guidance and to get the work done from the sub-

ordinates.

10. It is also apparent that the preliminary inquiry

has been conducted which reveals that the causative

factors for collapse of the class room included a faulty

construction or the construction which was not carried

10 Cri.W.P.1494-17.odt

to the prescribed specifications, appropriate proportion

of building material was not used. The petitioner was in

charge of supervising the construction and the

construction of the basement and the walls up to lintel

level was carried out during his tenure. In our

considered view there is enough material to show that

the petitioner was very well involved in carrying out the

construction which has resulted in causing the mishap.

The petitioner can certainly be attributed with requisite

knowledge of the consequences of such faulty

construction. He was supervising construction of a

class room being carried out and must be held to have

had the knowledge that it was to be used by children as

a class room. He can certainly be attributed with

sufficient knowledge that in case a faulty construction

was carried out it could collapse and result in fatalities.

Therefore, in our considered view the ingredients for

constituting the offence punishable under Section 304

of the Indian Penal Code can easily be made out from

the FIR and the investigation carried out up till now.

11 Cri.W.P.1494-17.odt

11. In our view the petitioner cannot seek to derive

any benefit merely because there could be several other

causative factors like excessive rain and flooding,

particularly when such other causative factors could

only be established during trial.

12. Keeping in mind the fact that three students have

lost life and several others have sustained injuries

because of the faulty construction or the construction

which has been carried out without adhering to the

norms, a detail investigation will have to be carried out

and the Investigating Officer also deserves to be

extended an opportunity to do it. Therefore in our

considered view, this is not appropriate case to exercise

the extraordinary power of quashing the FIR.

13. As regards the decision of the apex Court in case

of Shantibhai J. Vaghela (supra), few children studying

in an Aashram had drowned. The FIR was lodged

against 7 inmates of the Aashram for the offences

punishable under Section 304 of the Indian Penal Code

and the High Court had quashed the FIR. The order

12 Cri.W.P.1494-17.odt

was challenged before the Supreme Court by the

parents of deceased children. In such peculiar facts, the

criminal appeals filed by the parents of the deceased

were dismissed by holding that the negligence or lapse

on the part of the Aashram Authorities in not

conducting a proper and effective search, not informing

police about the incident and failing to effectively man

the gates of the Aashram adjoining the river bed were

not sufficient to attract the offence punishable under

Section 304 of the Indian Penal Code. In the matter in

hand, a class room has collapsed apparently due to

faulty construction when it was a part and parcel of the

duties of the petitioner as Deputy Engineer to ensure

the quality of the construction. The facts in the matter

in hand are therefore quite different than those were

obtaining in the case of Shantibhai (supra). As is

observed above, the petitioner can certainly be

attributed with requisite knowledge of the consequences

ensuing from the faulty construction. Therefore, he is

not entitled to seek any benefit from the decision of the

Supreme Court.

13 Cri.W.P.1494-17.odt

14. In circumstances the petitioner's case is not

covered by any of the instances / categories of cases laid

down in the case of State of Haryana Vs. Bhajan Lal

(supra). The FIR therefore, cannot be quashed.

15. The petition is dismissed. Rule is discharged.

16. The observations made herein above are prima

facie in nature and confined to the adjudication of

present petition only. Rejection of this petition shall not

preclude the petitioner from availing appropriate remedy

in the event of filing of the charge-sheet.

(MANGESH S. PATIL, J.) (S.S.SHINDE, J.) ...

vmk/-