Vijay Singhania vs State
2008 Latest Caselaw 924 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  CRL. M.C. 824/1999


                                              Reserved on: February 29, 2008
                                              Date of Judgment: July 04, 2008


         VIJAY SINGHANIA                               ..... Petitioner
                      Through : Mr. I.U. Khan, Senior Advocate with
                      Mr. Vikas Arora, Advocate.


                         versus


         STATE                                                ..... Respondent
                                  Through :   Mr. Pawan Behl, APP.


         CORAM:
         HON'BLE DR. JUSTICE S.MURALIDHAR

           1. Whether Reporters of local papers may be
              allowed to see the judgment?                             No

           2. To be referred to the Reporter or not?                   Yes

           3. Whether the judgment should be reported in               Yes

               Digest?

Dr. S. Muralidhar, J.

1. This petition under Section 482 of the Code of Criminal Procedure,

1973 („CrPC‟) challenges an order dated 7th April, 1998 passed by the

learned Metropolitan Magistrate („MM‟), Delhi in FIR No. 131 of 1995

holding that there was a prima facie case made out against the petitioner

under Sections 337 and 304A IPC. This petition also challenges an order

dated 26th November, 1998 passed by the learned Additional Sessions Judge

(„ASJ‟), dismissing Crl. Revision No. 41 of 1998 affirming the order passed

by the learned MM.

Background facts

2. The facts leading to the filing of this petition are that on 20 th June,

1995 at around 11.15 am a building at 4883-84, Kucha Ustad Dag, Chandni

Chowk, Delhi collapsed resulting the death of three persons and injuring

several persons. Pursuant to the collapse, enquiries were ordered

independently by the Delhi Administration and the Municipal Corporation of

Delhi. An FIR No. 131 of 1995 was registered under Sections 288/337/304-

A/427/34 IPC at Police Station Town Hall. On the conclusion of

investigation a charge sheet was filed against 3 persons namely the petitioner

Vijay Singhania who was described as the owner of the building, Pravin

Sharma was described as contractor and M.G. Agarwal an associate of the

Pravin Kumar in the construction of the building. The learned MM

discharged Pravin Kumar and M.G. Agarwal but framed charges against the

petitioner under Sections 304A/337 IPC. Aggrieved by the said order the

petitioner as well as the State filed criminal revision petitions. While the

revision petition of State was allowed, the revision petition of the petitioner

was dismissed by the learned ASJ.

Submissions of Counsel

3. Mr. I.U.Khan, learned Senior counsel appearing on behalf of the

petitioner submits that the enquiries made by the MCD as well as by the

Delhi Administration revealed that the petitioner was not in any way

responsible for the collapse of the building resulting into casualties and

injuries to the persons working there. Some repair and renovation work was

going on for the purposes of which some material was lying on the top floor.

Heavy rains resulted in the collapse of the roof. It is submitted that the

building consisted of the ground floor, first floor and barsati. The petitioner

occupied the ground floor in the year 1993 paying Rs.107/- per month. The

first floor and barsati were in the possession of Indo European Machinery

Co. Pvt. Ltd. („IEMCPL‟). The repair and renovation activity which was

going on in the premises at the relevant time was in the control and

supervision of two persons namely M.G. Agarwal and Pravin Kumar, the

contractor. Those two persons had arranged for the material to be kept on

the site and it was on their direction that it was placed on top of the building.

The petitioner was not at the site at the time of the incident. Reliance is

placed upon a large number of decisions including Joseph v. State of Kerala

1990 Crl LJ 56, B.P. Ram v. State of Madhya Pradesh 1991 Crl LJ 473,

Bishan Swaroop Sharma v. State (N.C.T. of Delhi) 2005 [1] JCC 452,

Kurban Hussein Mohammedalli Rangawalla v. State of Maharashtra 1965

(2) Crl LJ 550, Ambalal D. Bhatt v. The State of Gujarat AIR 1972 SC

1150, Baijnath Singh v. State of Bihar AIR 1972 SC 1485 and State of

Karnataka v. Satish (1998) 8 SCC 493. Considerable emphasis has also

been placed on the judgment of the Punjab and Haryana High Court in

Krishan Lal v. State of Haryana 1994 (1) RCR 251 which was a case of a

building collapse.

4. As regards the preliminary objection to the maintainability of the

present petition, Mr.Khan submits that the power under Section 482 CrPC

can be exercised by this Court to prevent a grave miscarriage of justice

notwithstanding that a revision petition may have been dismissed by the

Sessions court. Reliance is placed on the judgment in Kailash Verma v.

Punjab State Civil Supplies Corporation Crimes 2005 (1) SC 188,

Krishnan v. Krishnaveni (1997) 4 SCC 241 and Jitender Kumar Jain v.

State of Delhi (1998) 8 SCC 770.

5. On behalf of the respondent, Mr.Pawan Behl, learned APP, submitted

that the present petition is in the nature of a second revision petition which is

not maintainable as such. Reliance is placed upon the judgment in Rajathi

v. C. Ganesh (1996) 6 SCC 326, Rajan Kumar Manchanda v. State of

Karnataka 1990 (Supp) SCC 132, and Rajinder Prasad v. Bashir (2001) 8

SCC 552. On merits, reliance is placed upon the statement of witnesses

recorded under Section 161 CrPC. It is submitted that some of the

statements and in particular the statement of Brahm Dev who was a

Chowkidar of the premises indicates that the petitioner used to come to the

site for supervising the building at the night hours and would instruct M.G.

Agarwal and Pravin Sharma as to what was to be constructed and how it was

to be constructed.

Maintainability of the petition

6. As regards the preliminary objection as to the maintainability of the

petition, the law in this regard has been explained in Krishnan v.

Krishnaveni (1997) 4 SCC 241. In para 9 of the said judgment it was

explained that "the prohibition under Section 397 (3) on revisional power

given to the High Court would not apply when the State seeks revision under

Section 401." In para 10 it was explained that "when the High Court on

examination of the record finds that there is a great miscarriage of justice or

abuse of the process of the courts or the required statutory procedure has not

been complied with or there is failure of justice or order passed or sentence

imposed by the Magistrate requires correction, it is but the duty of the High

Court to have it corrected at the inception lest grave miscarriage of justice

would ensue." At the same time it was cautioned that the power "may be

exercised sparingly so as to avoid needless multiplicity of procedure,

unnecessary delay in trial and protraction of proceedings". Ultimately in

para 14 it was concluded as follows:

"14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional powers. We do not find any justification warranting interference in the appeal."

7. The above exposition of the law was reiterated in Rajinder Prasad.

Likewise, in Kailash Verma the above decisions were followed and the

principles were reiterated.

8. The result of the above discussion is that this Court will have to

determine if as a result of the impugned order there has been a miscarriage

of justice or if continuation of the trial in the instant case would be in the

interests of justice. This necessarily requires the Court to examine the merits

of the case and the submissions of counsel in that regard.

Consideration of the case on merits

9. The case of the prosecution is that the petitioner was the owner of the

building and was therefore responsible for the control and supervision of the

construction that was taking place at the relevant time. In the written

submissions it is contended that the IEMCPL had acquired the building in

1988 by a registered sale deed. In 1988 the petitioner along with one Rishi

Kedia were inducted as tenants in the ground floor. IEMCPL decided to

dispose of the ground floor and an agreement to sell was entered into in

respect of their tenanted portions for a sum of Rs.2 lakhs. Subsequently

IEMCPL decided to dispose of the first and second floors as well.

Consequently agreements to sell were entered into with the petitioner and

Rishi Kedia in 1994. Thereafter IEMCPL moved out of the premises. It is

stated that pursuant to the earlier agreement to sell Rs. 2 lakhs was received

from the petitioner and Kedia on 17th August, 1994 and 8th November, 1994

respectively.

10. Reliance is placed by the prosecution on the statement under Section

161 CrPC of one Inderjit Wadhwa who states that Vijay Singhania in August

1994 had made additions and alterations on the ground floor and constructed

unauthorized shops. He engaged Pravin Sharma (Builder) and M.G.

Agarwal, Junior Engineer, MCD to carry on construction. Wadhwa claimed

that he and other persons in the locality had warned the petitioner that the

building was very weak and in case he made any addition or alteration, the

building would collapse. However the petitioner did not heed those

warnings. Wadhwa stated that on 19th June, 1995 Pravin Sharma and M.G.

Agarwal were allowing steel girders to be carried to the upper floors through

labourers. Wadhwa who was present at that point questioned them for doing

so.

11. Reliance is also placed on the statement of one Brahm Dev son of Shri

Khub Lal who was working at the relevant point of time as a security guard

of the building on a monthly salary of Rs.500. Brahm Dev corroborated the

statement made by Inderjeet Wadhwa who had on 19th June, 1995

questioned M.G. Agarwal for allowing steel girders to be carried to the top

of the building. Brahm Dev stated that the petitioner would come at night to

supervise the construction. The petitioner would discuss with M.G. Agarwal

and Pravin Sharma about what should be constructed and how it should be

constructed. Brahm Dev also states that he was present at the time of the

incident. There are also statements of other witnesses who speak to the fact

that the building was old and weak and that the construction was being

carried on in a rash and negligent manner.

12. It has been vehemently argued by Mr. Khan that barring the statement

of Brahm Dev there is nothing at all to connect the petitioner with the

offence and therefore not even a prima facie case can be said to be made out

against him under Sections 304A/337 IPC. However, this Court is unable to

agree with this submission. The statements of the witnesses, though yet to be

tested at the trial, cannot at this stage be brushed aside. They are relevant for

considering if there exists a prima facie case to proceed against the

petitioner. It is not possible to accept the contention that no witness other

than Brahm Dev has spoken about the role of the petitioner. A definite

conclusion in this regard can be arrived at only after the witnesses have been

examined at the trial.

13. Since considerable emphasis has been placed on judgment in Krishan

Lal this Court proposes to discuss the said decision at some length. Krishan

Lal and Bachan Lal were two brothers were getting a Cold Store

constructed. In the process of construction the building collapsed and two

labourers and a girl aged 10 to 11 years died. Several other labourers were

also injured. Relying on the judgment in Public Prosecutor v. P. Moopanar

AIR 1970 Madras 198 where it was held that the Manager of the school was

not liable where the building collapsed and students died, it was simply held

that the petitioners were laymen and could not be held liable for the

negligence of the persons who were constructing the building. Moreover it

appears that the contentions of the petitioners in that case on facts were not

controverted by the prosecution. In the instant case, there is a statement by

at least one of the witnesses that the petitioner would himself come and

supervise the construction work at nights. Therefore, on facts the decision in

Krishan Lal is distinguishable.

14. In Abdul Kalam v. State 2006 [2] JCC 803 this Court quashed the

proceedings against the owner of the building when a scaffolding erected by

the contractor fell upon and injured the complainant. On facts it was found

that the owner had assigned the job to the contractor and that "there was

nothing else left for him to do". The said judgment is distinguishable on

facts. In the instant case it is too early to come to the conclusion that the

statements made by the witnesses do not bring out a case against the

petitioner even prima facie for the offence with which he is charged. If, in

fact, the statements are found to be correct, the petitioner may not be able to

escape liability.

15. In Gulijeet Singh Kochar v. State 2005 [3] JCC 1691 the petitioners

were the owners of the property and were sought to be proceeded against

under Section 304A IPC following an incident when one of the workers fell

down and died. It was found on facts that there was no material to suggest

that the construction of the basement was being done under the direct

supervision of the owners. The investigation had revealed that the building

was being constructed by the contractor. In the case in hand it is difficult to

come to a similar conclusion in view of the evidence gathered and placed on

record by the prosecution.

16. It was repeatedly suggested by Mr. Khan that there should have been

some intervening act by the petitioner which resulted into the collapse of the

building and that there was no vicarious liability for the acts of the

contractors or the engineers. This Court is unable to accept this submission

at the present stage when the matter is yet to go to trial. The witnesses

whose statements have been referred to are yet to be cross-examined. At

least one of them speaks about the petitioner having visited the site at night

and giving instructions what should be constructed and how it should be

constructed. Also, it is only when the evidence is tested in the court it can

be determined with certainty as to what relationship the petitioner had with

the other two accused. At this stage it is not possible to come to the

conclusion that there is not even a prima facie case made out against the

petitioner for the offence under Sections 337 and 304 A IPC.

17. On a conspectus of the material placed on record by the prosecution

thus far, this Court is unable to be persuaded to quash the criminal

proceedings. This is not a case where a grave miscarriage of justice has

resulted from the framing of charges against the petitioner. Therefore no

ground is made out for the interference by this Court with the order passed

by learned ASJ dismissing the petitioner‟s revision petition. In other words,

this case does not fall within the parameters explained by the Supreme Court

in Krishnan v. Krishnaveni justifying the entertaining of a petition under

Section 482 CrPC.

18. Even on merits, for the reasons explained, this Court is unable to

come to the conclusion that there is no material or that not even a prima

facie case is made out against the petitioner for being proceeded against for

the offences under Section 304A and 337 IPC. Accordingly, this petition is

dismissed.

19. The trial court record shall be sent back immediately. The matter will

be listed before the trial court on 25th July, 2008 at 2 pm. The plea of the

petitioner for exemption from personal appearance will be dealt with on

merits by the trial court.

20. It is clarified that no observation made in this order is intended to

influence the orders to be passed by the trial court hereafter at any stage of

the proceedings.

S. MURALIDHAR, J.

JULY 04, 2008 dn