Order 2

Order Details: COPY OF ORDER
Pdf Text: Bail Application No. 865/2022
State v. Mohd. Raeesh
FIR No. 100/2022
P.S South Campus
U/s 304/308/34 IPC
20.05.2022
Present: Sh. Irfan Ahmed, Ld. Addl. PP for State with IO SI Vikas Sahu.
Sh. Akash Dhawan, Ld. Counsel for applicant/accused
1. Present is an application moved on behalf of
applicant/accused Mohd. Raeesh for grant of bail.
2. Briefly stated: The case of the prosecution as revealed to this
court by IO SI Vikas Sahu is that ‘unauthorized construction’ was being
carried out at House No. 173, Satya Niketan, Delhi wherein
applicant/accused was engaged as a contractor. It is contended that
applicant/accused, paying no heed to the safety measures, removed all the
old walls to replace them with pillars. Consequently, the structure collapsed
and two labourers expired whereas four others sustained injuries.
Eventually, applicant/accused was arrested for commission of the offence
punishable U/s 304/308/34 IPC.
3. It is submitted by Ld. Addl. PP that ‘knowledge’ about the
consequences should be imputed against applicant/accused to the effect
that his act is so imminently dangerous that in case if the old walls are
removed, the building shall collapse and in all probabilities, he shall cause
death of workers underneath.
4. Two valuable human lives have been lost and four poor
labourers have sustained serious injuries. The Court is in pains to observe
that the authorities in the instant case appears to have assumed a state of
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abominable inertia. I am made to understand that carrying out
unauthorized construction is a cognizable offence. I am also informed by the
Ld. Addl. PP that under the provisions of DMC Act, it is the bounden duty of
the MCD officers to check the unauthorized construction, including the
sealing of the premises.
5. It is informed by IO SI Vikas Sahu that construction in the
present case commenced on 30.03.2022 and the unfortunate incident
happened on 25.04.2022 i.e. almost after a month of the commencement of
the construction.
6. It is informed by Ld. Defence counsel that applicant/accused is
an absolutely illiterate man.
7. The Court is in pains to observe that if a poor illiterate
contractor is supposed to know the consequences of the impugned
unauthorized construction, it is inexplicable that as to how and why the
same knowledge is not imputed to the qualified officers of MCD, who owed
a duty to stop the ongoing unauthorized construction.
8. The investigating agency unfortunately seems to be on a
discordant note with the famous quote of Hon’ble Justice Sh. Krishnaiyer
that ‘To be poor, in this land of Daridra Narayan is no crime’ (Jolly George
Verghese & Anr v. The Bank of Cochin 1980 AIR 470).
9. Two valuable human lives have been lost and yet the
authorities seems to be indulged in ornamental action being satiated with
apprehending an illiterate contractor. The IO has not even bothered to join
the MCD officers in the investigations, despite a lapse of almost about a
month after the incident.
10. Various preventive action envisaged by the legislature under
the provisions of the DMC Act to regulate unauthorized construction and
ensure the safety and security of the affected persons have been set to
naught by the MCD officers. Unfortunately, even the concerned SHO has
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failed to act with promptitude. It is informed by Ld. Addl. PP that carrying
out unauthorized construction constitutes a cognizable offence and SHO
was also duty bound to initiate appropriate action after registration of FIR.
Unfortunately, had the authorities acted well in time two valuable human
lives could have been saved.
11. This Court is appreciative of its limited role during the course
of hearing the bail applications. However, the Court is equally conscious of
its onerous duty to ensure a free and fair investigation in the instant matter.
It is infact a misconceived notion to contend that the Court should blindly
follow the straight line shown to them by the investigating agency and
should not venture into areas marked ‘out of bound’ rather the Courts owe a
duty to ensure that no innocent person is unnecessarily harassed and no
guilty goes scotfree. Hon’ble Delhi High Court in the matter of Mohd.
Hakim v. State (NCT of Delhi) Crl. A. 170/2021 decided on 06.10.2021
has observed here as under:
“ 25. Courts must not play coroner and attend to legal or constitutional rights
only after they are ‘dead’. Instead we must play doctor, and save such rights
from demise before they are extinguished. Courts should proactively stepin to
protect such rights from being stifled and buried. If equity calls upon affected
persons to be vigilant to protect their rights, then surely the courts must also be
vigilant, and, to quote the Hon’ble Supreme Court, act as sentinels on the qui
vive when it comes to protecting constitutional and legal rights.”
12. Recently, Hon'ble Apex Court in the matter of Arnab
Manoranjan Goswami v. The State of Maharashtra & ors Criminal
Appeal No. 742744/2020 D.O.D 27.11.2020 has observed as under:
“...The need to ensure the fair investigation of crime is undoubtedly important
in itself, because it protects at one level the rights of the victim and, at a more
fundamental level, the societal interest in ensuring that crime is investigated
and dealt with in accordance with law. On the other hand, the misuse of the
criminal law is a matter of which the High Court and the lower Courts in this
country must be alive...”
13. Further, reliance is placed upon Vinubhai Haribhai Malaviya
& ors v. The State of Gujarat & ors Criminal appeal Nos. 478479 of
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2017 D.O.D 16.10.2019 wherein the Hon’ble Apex Court has observed that
the Court owes a duty to the citizens of this country to ensure free and fair
investigation.
14. Accordingly, I deem it appropriate to bring the matter to the
notice of higher echelons of Delhi Police. Let a copy of the instant order be
sent to the concerned Joint Commissioner of Police, through IO SI Vikas,
with a request to ensure fair investigation in the instant matter.
Furthermore, a report be also called from the worthy Deputy Commissioner,
South Zone, MCD regarding the action initiated at his end qua the
impugned unauthorized construction. It is expected of the worthy Joint
Commissioner of Police and worthy Deputy Commissioner, South Zone,
MCD that this court shall be duly apprised about the remedial action
initiated in the instant matter at their end. Copy of the instant order be
accordingly sent to worthy Deputy Commissioner, South Zone, MCD
through IO SI Vikas.
15. As far as the bail application is concerned, reply filed by the IO
is very sketchy. It is perfunctorily reported that applicant/accused had full
knowledge that the building is dilapidated and weak and it can collapse or
fall anytime if proper safety measures are not taken. The report is silent as
to what was the requirement of law which was breached by the
applicant/accused. Accordingly, a fresh comprehensive reply needs to be
filed in the instant matter.
16. Copy of the instant order be sent to the concerned DCP with a
request to ensure filing of a fresh comprehensive report in the instant
matter.
17. It is expected that since the accused is in judicial custody, the
reply by the concerned officers shall be filed well within time with utmost
urgency and advance copy of the same shall be supplied to the Ld. Defence
counsel well before the next date of hearing.
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18. The IO submits that atleast five days be given to the police
officers to file the report.
19. At the request of the IO, list the bail application for remaining
arguments in the matter on 25.05.2022.
20. Copy of the order be given dasti to the concerned parties.
(Dharmender Rana)
ASJ02, NDD/PHC/New Delhi
20.05.2022
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