Order 3

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IN THE COURT OF MS. ANJU BAJAJ CHANDNA
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-SPECIAL
JUDGE (PC ACT) CBI ROUSE AVENUE DISTRICT COURTS,
NEW DELHI
Bail Matter No. 200/2024
CBI vs Abhishek Gupta
RC 0482024S0008, CBI SC-I, New Delhi
U/s. 105, 106 (1), 115(2), 290, 3 (5) of BNS 2023
23.09.2024
Appearance :
Sh. Prashant Kumar, Ld. Sr. PP for CBI.
Sh. A. K. Kushwaha, Ld. Sr. PP for CBI along with
IO.
Sh.Abhijit Anand, Sh. Sahil Reza Khan, Ms. Garvita
Mehta and Sh.Rochak Singla, Ld. Counsel for J.
Dalvin Suresh, father of deceased Nevin Dalvin
Sr. Advocate Mr. Sidharth Luthra, Sr. Advocate
Ms.Rebecca John along with advocates Sh.Mohit
Saraf, Sh.Sanjeev Sharma, Sh.Anirudh Gandhi,
Ms.Sanya Sud, Ms.Vaishali Goyal, Sh.Pravir Singh
Sh. Karamvir and Mr.Debargha Roy for
applicant/accused Abhishek Gupta.
ORDER
1. Three young bright students lost their lives in an unfortunate
incident of basement flooding on 27.07.2024 at 11B, Old Rajinder
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Nagar, New Delhi which was being run as coaching centre under
the name and style of M/s Rau’s IAS Study Circle.
2. The first information report (FIR) was registered by Delhi
Police bearing no.151/2024 PS Rajinder Nagar dated 28.07.2024.
By virtue of order of High Court dated 02.08.2024, the investigation
has been transferred to Central Bureau of Investigation (CBI). The
CBI registered RC Number RC-8(S)/2024/CBI/SC-I/New Delhi on
06.08.2024.
3. The applicant/accused Abhishek Gupta who has been the
CEO of the Institute (M/s Rau’s IAS Study Circle ) has filed the bail
application seeking regular bail under Section 483 of BNSS 2023
having been arrested for the offences punishable under Sections 105,
106 (1), 115(2), 290, 3 (5) of Bhartiya Nyay Sanhita (BNS) 2023.
4. According to the prosecution, the applicant is responsible for
the incident as basement of the building was being used in
contravention of the approved usage of the basement and the
applicant being the CEO of the institute, having taken the premises
on lease, knowingly agreed to use the basement for the commercial
purpose for running the coaching institute. As per the occupancy
certificate dated 09.08.2021, the basement could only be used as
staircase, lift lobby, toilet, parking and for household storage. The
lessee was using the basement for the purposes of library where
students used to sit through out the day for study as well as for
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giving tests conducted by coaching institute. It has been revealed
during the investigation that on 27.07.2024, at about 18.30 hours,
several students were studying in the library while it was raining
heavily. The rain water entered the ground floor due to fall of
sliding gates of the main building and subsequently entered into the
basement resulting in flooding of the same. Few students survived
but three students lost their lives due to drowning.
5. On 04.08.2023, Deputy Commissioner, MCD, Karol Bagh
Zone issued a show-cause notice under Section 345 (A) read with
Section 347 of DMC Act 1957 to owner / occupier of the property
seeking stoppage of the misuse being contrary to the provision of
MPD-2021.
6. For the offence of Section 105 of BNS, only knowledge is
sufficient to prove the culpability. The basement occupier was
having ‘knowledge’ that basement was only for storage and not for
coaching institute, and by using the same for commercial / coaching
institute, knowledge and motive of the applicant has been
established and their act resulted in tragic incident. The applicant
did not take any step to make compliance to the notice dated
04.08.2023. On the fateful day, due to heavy rains and overflow of
water, drainage system gave in and water entered the basement of
the building, resulting in the death of three students who could not
come out or rescued. Prosecution has also pointed out a complaint
dated 26.06.2024 on CPGRAMS portal (preferred by Kishore Singh
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Kushwaha) wherein he stated that Rau’s Study Circle is running
class room and test classes without permission in the basement,
putting the life of students and staff in danger and likely to cause a
major incident. The reminders (dated 15.07.2024 and 22.07.2024)
were also issued by the complainant with respect to the aforesaid
complaint but neither the authorities concerned nor the owner and
occupier of the basement took any action to save the situation. The
applicant continued with the illegal acts, with the result three
innocent lives were lost. At the time of entering into lease and even
thereafter, applicant was knowing that basement could not be used
for running the coaching institute. The probability of water entering
into the basement and thereby trapping the students, was also in the
knowledge of occupier as usually during rains, road in front of the
building gets flooded.
7. On behalf of applicant, Ld. Sr. Advocates Sh. Sidharth Luthra
and Ms. Rebecca John strongly opposed the averments of the
prosecution and submitted that main cause of incident has been
heavy rains, failure of drainage system and apathy of civic
authorities. Ld. Counsels has referred to the order of High Court of
Delhi dated 02.08.2024 wherein it has been mentioned that Deputy
Commissioner, MCD made a statement thereby admitting that
stormwater drain on the side of the road where Rau’s IAS Study
Circle is located was dysfunctional.
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8. Ld. Counsels have further argued that show-cause notice
dated 04.08.2023 was primarily issued consequent upon the
observations of High Court of Delhi, in the matter of Sanjay Singhal
vs State Govt. of NCT of Delhi & Ors., W.P. (C) 12182/2016 dated
14.12.2023 whereby coaching institutes were required to obtain fire
clearance certificate. The said show-cause notice was duly
complied with and fire clearance certificate was applied for and was
finally granted on 09.07.2024( i.e. prior to the incident in question).
Ld. Counsels further submitted that the premises of Rau’s IAS
Study Circle is now lying closed after the incident and fees and
expenses of the students are being refunded. The applicant /
accused is in custody for more than 54 days and the prescribed
period of 60 days for filing the charge-sheet is going to be
completed very soon. The applicant /accused also suffered police
custody during the period 31.08.2024 to 04.09.2024 and in this way
substantial part of investigation is already done.
9. Ld. Counsels also pointed out that in terms of the order dated
02.08.2024 of High Court of Delhi, the responsibility of civic
authorities, knowledge and criminal negligence on their part cannot
be ignored. Till date no officer from the civic authorities has been
questioned or booked despite the specific observations of the High
Court. The incident was unprecedented and could not have been
perceived or anticipated. No one could control the heavy inflow of
water which occurred due to heavy rains and failure of drainage
system. The human occupation of basement was not prohibited. The
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responsibility of owners or occupiers of the building cannot be
stretched beyond a point, particularly when it is clear that civic
authorities are responsible for inaction and idle approach towards
maintaining the drainage system. The counsels also relied upon the
order dated 13.09.2024 of High Court of Delhi whereby interim bail
has been granted in favour of the owners of the building. Ld.
Counsels have relied upon the following judgments in support of
their submissions:-
1. Shiv Kumar Jatia vs. State of NCT of Delhi, (2019) 17
SCC 193.
2. Rekha Murarka vs. State of West Bengal & Anr. (2020) 2
SCC 474.
10. The Special Prosecutor for CBI Sh.Prashant Kumar and Sh.
Abhijit Anand, Ld. Counsel on behalf of J. Dalvin Suresh (father of
deceased student Nevin Dalvin) argued that basement of Rau’s IAS
was being used to conduct exam /tests which was in absolute
violation of the prescribed norms. The Rau’s IAS Study Circle was
operating under the control of the applicant/accused and he was
aware about the conditions particularly that basement was not meant
to be used for library or for coaching purposes. Water usually
accumulated on the road during the rainy season and therefore,
accused could very well anticipate such kind of incident. No
preventive measures were taken by the applicant /accused despite
being in authoritative position and despite making profits from the
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business of running the academy. The main aim of the applicant
was to get maximum profits without caring for the safety and
security of the students.
11. Referring para no.5.5 and 5.7.11 of the lease agreement
effective from date 01.07.2022 which are as follows:-
5.5 Insurance
The Lessee shall be responsible for the insurance of the schedule
property including the building fixtures, equipments, owned by
the Lessee and occupants, students, visitors etc. inside the
schedule property. The Lessee alone shall be responsible for any
loss claim, and damages to any person or material in the
schedule property for any reason whatsoever. The Lessors shall
not be liable for the same under any circumstances. Any
Insurance claims received towards any loss, damage etc as filed
with insurance companies by Lessee as the case may be in
respect of any damage / loss etc shall be received by Lessee only.
In case the claim might be received due to legal requirements by
Lessors, same shall be paid back to Lessee immediately for their
insured fixtures and equipments.
5.7.11 The safety of the clients, employees and the guests of
M/s Rau’s IAS Study Circle (Lessee) is the sole responsibility of
the lessee and not the lessors,
it is pointed out that applicant is responsible for committing
the offences.
12. Ld. counsel also referred to the complaint of Kishore Singh
Kushwaha dated 27.06.2024, resident of Karol Bagh complaining
specifically against Rau’s IAS Study Circle for running class room
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from the basement without permission and therein he also expressed
apprehension about likely major accident. Written submissions also
filed by Counsel Sh.Abhijit Anand, relying upon the following
judgments in support of his arguments:-
1. P. Chidambaram vs. Directorate of Enforcement (2019) 9
SCC 24.
2. Prasanta Kumar Sarkar vs. Ashis Chatterjee (2010) 14 SCC
496.
3. Tarun Kumar vs. Assistant Director, Directorate of
Enforcement, SLP (Crl.) 9431/2023.
4. P. Chidambaram vs. Directorate of Enforcement (Bail
application No. 2718/19)
5. Mukesh Kumar vs State of Haryana (CRM-M-29883-2023
dated 20.03.2024, High Court of Punjab and Haryana.
13. I have given due consideration to the facts and circumstances
of the case and the contentions of both the sides.
14. The applicant has been the partner and CEO of Rau’s IAS
Study Circle and was in control of its affairs. It is no doubt true that
the basement of the premises was being used in contravention to the
rules and regulations, however, at the same time the failure of civic
authorities cannot be ignored. It has also been observed by the High
Court in its orders that stormwater drain at the place was
dysfunctional and de-silting of the drain in front of the coaching
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centre has not been done as also encroached and covered by ramps.
The civic authorities have failed to take any action against
unauthorised activities.
15. It is an admitted position that investigation of the case qua the
applicant is substantially complete and charge-sheet would be
submitted very soon. The owners of the building have already been
released on interim bail by the orders of High Court dated
13.09.2024. The case set up by the prosecution would be tested
during the trial on appreciation of evidence. The nature and extent of
culpability of the applicant / accused would be determined during
the trial.
16. The bail is the rule and jail is the exception as per the law of
land established by various judgments of Supreme Court of India.
The refusal of bail at this stage ( when investigation is substantially
done) would amount to inflicting punishment before the trial. At
this stage, when the applicant / accused has already been in custody
for more than 54 days, no purpose would be served by further
keeping the applicant / accused in custody. The applicant has got
roots in the society and there is nothing on record to suggest that he
can interfere with the process of justice. Accordingly, accused/
applicant is admitted to interim bail till 07.12.2024 on furnishing
personal bond in the sum of Rs.1 Lakh with two sureties of the like
amount to the satisfaction of the court subject to the following
conditions:-
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a. The applicant shall join the investigation as and when directed
by the court;
b. the applicant shall not leave the country without prior
permission of the court;
c. the applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case;
d. the applicant shall provide his mobile number(s) to the
Investigating Officer and keep them operational at all times; and
e. in case of change of residential address (es) and / or mobile
number (s), the applicant shall intimate the same to the Investigating
Officer / Court by way of an affidavit.
17. Since, as per the clause 5.5 of the lease agreement dated
01.07.2022, the applicant being the lessee of the premises and CEO
of the institute (RAU’s IAS Study Circle) alone, would responsible
for any loss claim, and damages to any person or material in the
schedule property for any reason whatsoever and further, as per
clause 5.7.11, the safety of the clients, employees and the guests of
M/s Rau’s IAS Study Circle (lessee) is the sole responsibility of the
lessee and not the lessors and also in view of the orders of High
Court dated 13.09.2024 whereby appropriate steps have been taken
to prevent such incidents and order for formation of the committee
has been made and a corpus is created, accordingly applicant is
ordered to deposit Rs.2.5 crores till 30.11.2024 ( can also be done in
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installments) with Red Cross Society placed at the disposal Hon’ble
Lieutenant Governor of Delhi. The applicant / accused may be
released on furnishing the personal and surety bonds but the amount
of Rs.2.5 crores can be deposited till 30.11.2024.
(Anju Bajaj Chandna)
Principal District & Sessions Judge-
cum-Special Judge (PC Act) (CBI),
Rouse Avenue District Court
New Delhi/23.09.2024
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