'No Mens Rea': Gujarat High Court Discharges Financier Of Collapsed Building Which Claimed 11 Lives In 2001 Earthquake
The Gujarat High Court discharged the financier of a building in Ahmedabad, for offence of culpable homicide and criminal conspiracy, booked after the building suffered severe damage in the 2001 earthquake in the State claiming 11 lives. In doing so the court said that charge-sheet did not disclose any evidence to suggest that the petitioner was either the owner, developer, or contractor of...
The Gujarat High Court discharged the financier of a building in Ahmedabad, for offence of culpable homicide and criminal conspiracy, booked after the building suffered severe damage in the 2001 earthquake in the State claiming 11 lives.
In doing so the court said that charge-sheet did not disclose any evidence to suggest that the petitioner was either the owner, developer, or contractor of the construction. It further ruled that to invoke Section 304 IPC, prosecution had to prove existence of mens rea/intention that the act was likely to cause death which was not established herein.
The petitioner who challenged an order rejecting discharge from offences under IPC sections 304 and 120B argued that he had no connection with the construction–Sangemarmar complex in Ahmedabad as he was merely a financier. It was contended that there was no material on record to indicate that the petitioner was in any manner engaged in the construction of Sangemarmar Complex.
Petitioner argued that Sessions Court has committed a serious error in rejecting the discharge application by erroneously treating the petitioner as a builder and by impermissibly shifting the burden upon the petitioner to prove that he was not a builder, whereas the burden squarely lies upon the prosecution to establish such involvement.
Justice Hasmukh D Suthar in his order said:
"Having heard the learned advocates for the respective parties and upon perusal of the record, it prima facie emerges that the present applicant was merely a financier. The material on record further indicates that one Mr. Jagdishchandra Gordhandas Sodhan had obtained the requisite permissions, asserted ownership over the property, undertaken the construction of the flats, and executed the indemnity bond in his own capacity.
Notably, the charge-sheet does not disclose any evidence to suggest that the present applicant was either the owner, developer, or contractor of the said construction. In order to invoke the provisions of Section 304 of the Indian Penal Code, the prosecution is required to establish the existence of mens rea, namely, knowledge or intention that the act was likely to cause death. In the present case, the building is stated to have collapsed due to a catastrophic earthquake after a considerable lapse of time since its construction. It cannot be ruled out that the structural integrity of the building may have been affected over time due to age, environmental factors, and the impact of the natural calamity".
The court said that even if the case of the prosecution is accepted on face value, there is no material to indicate that the applicant had any knowledge or intention that such an unfortunate incident was likely to occur.
"The essential ingredient of mens rea is thus conspicuously absent. It is a settled principle of law that where two views are possible on the basis of the material available on record, the view favouring the accused must be adopted at the stage of discharge," the court ruled.
The plea challenged a sessions court order dated 03.12.2011 rejecting the petitioner's application for discharge. The case pertains to damage caused to Sangemarmar Complex situated at Ambawadi, Ahmedabad, during the devastating earthquake of 26.01.2001 measuring 7.9 on the Richter Scale, which caused widespread destruction across the State.
The complex comprised of two wings containing nine flats and was constructed between 1989 and 1991. One wing consisting of four flats suffered severe damage, whereas the other wing remained unaffected. The land on which the complex was constructed originally belonged to one Shodhan, who had obtained the necessary permissions and undertaken the development and construction activities.
The applicant had financed the superstructure construction and subsequently occupied one flat, while two other flats stood in the names of his wife and HUF. The record further indicated that permissions, municipal payments, electricity connections and ownership-related documents were in the name of Shodhan.
Certain construction agreements executed in 1992 were entered into after completion of construction. The building had remained occupied and in use by all residents, including Shodhan, until the earthquake occurred in 2001.
The petitioner submitted that the building in question suffered damage due to the high-intensity earthquake that occurred on January 26, 2001 which was a natural calamity. The structure comprised two wings connected by a common staircase and lift, consisting of five apartments in one wing and four in the other, and certain portions were damaged. The construction had commenced in 1989 and was completed in 1991, nearly a decade prior to the earthquake. Therefore, the damage cannot be attributed to any alleged act or omission on the part of the petitioner.
State opposed the present application and submitted that the petitioner is specifically named in the FIR and has played an active role not only in financing but also in the construction of the building in question. It was contended that the material collected during the course of investigation prima facie indicates the involvement of the applicant in the alleged offence.
It was further submitted that the incident resulted in the collapse/damage of the building, leading to the death of 11 persons. In view of the gravity and seriousness of the offence, the role attributed to the petitioner cannot be lightly brushed aside at this stage. It was argued that the evidence on record discloses sufficient grounds to proceed against the petitioner for offences punishable under IPC Sections 304 (culpable homicide not amounting to murder) and 120B(1) (criminal conspiracy) as well as under the provisions of the Gujarat Ownership Flats Act.
Whether petitioner had active participation in the construction and whether there existed a criminal conspiracy are matters which require appreciation of evidence and can only be determined during the course of trial, the State said.
The court said that in the absence of any material showing the involvement of the applicants in the offence, the discharge application filed by the present accused deserves to be allowed.
The court underscored that the object of the discharge mechanism occupies a crucial position within the judicial process as it serves as a preliminary judicial filter that operates before the formal commencement of the trial.
"Its primary purpose is to ensure that the only cases supported by legal foundation proceed to trial, whereby upholding fairness for the accused, while preserving the judicial efficiency. It protects the individual from being forced into the rigors of full criminal trial, when the prosecution material does not disclose even prima facie case. This mechanism is essential to uphold the constitutional values of personal liberty and constitutional safeguards, which prevents the wastage of the judicial time and maintains balance between the prosecution and the defence to eliminate frivolous prosecution at the early stage. Discharge mechanism enhances the public confidence in the judicial system," it added.
The plea was allowed and the petitioner was discharged.
Case title: BHARATBHAI GHANSHYAMBHAI SHAH v/s STATE OF GUJARAT
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 264 of 2013