1

appln.1117-2010.sxw
acd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1117 OF 2010
Sanjay Harakchand Jain
Age: 34, Occ. Business, residing
at Flat No.203, A Wing, Megh Apts.
L.T. Road, Borivali (W), Mumbai.

)
)
)
)

..Applicant.
(Orig. Accused No.1)

Vs.
The State of Maharashtra
(Borivali Police Station

)
)

..Respondent.

---Mr. Rajendra Shirodkar, counsel for the

Applicant.
Mr. P.S. Hingorani, A.P.P for the State.
---CORAM: M.L. TAHALIYANI, J.
DATE: JANUARY 11, 2012.
JUDGMENT:
1.

Heard Mr. Shirodkar, learned Counsel for the applicant and

Mr. Hingorani, learned A.P.P. for the State.

2
appln.1117-2010.sxw

2.

The applicant has moved this Court u/s 482 of Cr. P.C.

Applicant is one of the accused in Sessions Case No.57 of 2009 pending in

the court of Additional Sessions Judge, Borivali Division, Dindoshi,
Mumbai. The applicant with two others is facing trial for the offences
punishable u/ss 288, 304, 337, 338 and 427 of the Indian Penal Code.

3.

It was alleged that on 18th July, 2007, the building known as

Laxmichhaya situated at L.T. Road, Borivali (West), Mumbai had

partially collapsed due to structural instability. It is alleged that the
structural instability was caused due to removal of a wall between the shop
nos. 5 and 6 situated on the ground floor of the said building.

Before I proceed to consider the arguments submitted on

behalf of the applicant and the respondent, it may be stated here that a
chargesheet was filed by the Borivali Police Station against the applicantSanjay Harakchand Jain and his brother Kailas Harakchand Jain for the
above stated offences. The case was committed to the Court of Sessions.
The discharge application filed by the applicant-accused no.1 has been
rejected. It is a case of the applicant that he has nothing to do with the shop

3
appln.1117-2010.sxw

nos.5 and 6 and particularly removal of the wall between the two shops. It
is submitted by Mr. Shirodkar, learned counsel for the applicant that there
is not even a shred of evidence to prima facie hold that the applicant was
responsible for partial collapse of the building.

My attention was invited to the order passed by the learned

Additional Sessions Judge, wherein he has stated that there was no specific
mention of the applicant in the statements of the witnesses. It is further
stated that the applicant is member of the same family and he is one of the
members of the said Co-Operative Housing Society. The relevant portion
of the order of the learned Trial Jude can be reproduced as under:
5. It is true that there is no specific individual mention of the
present applicant/accused in the statements of witnesses. But,
we cannot decide the application U/Sec.227 of Cr. P.C. in the
offences like this by taking mere hyper technical view. It is an
admitted position that family of the applicant/accused is
consisting of his three brothers, their families, father and
mother. In short, it is a joint family. It has been also admitted
in the application that the family of the applicant owned three
shops on the ground floor of collapsed building

6.

It is thus clear from the said order itself that there were no

allegations against the applicant in whole of the chargesheet. I have gone

through the statements relevant to decide the present application. The

4
appln.1117-2010.sxw

statement of witness Durgesh Anil Kothari shows that the brother of the
applicant who was looking after the shop nos.4 and 5 where the business in
the name and style of Vardhman Steels was being run. It is the brother of
the applicant who had applied for repairing of the premises. The repair
work was undertaken by the brother of the applicant who is accused no.2
before the Trial Court. Similarly, the statement of the witness Manoj
Vasanji Vora also clearly shows that the shop no.5 was earlier being run by
one Pyarchand Jain. He was running the shop under the name and style
Darshan Electricals. The said shop was vacated and possession was given
to accused no.2 Kailas Jain. It is accused no.2 who was looking after the
repairs. The internal wall was also allegedly removed at the instructions of
Kailas which had resulted in weakening of the load bearing pillars.

7.

After having gone through the statements of the witnesses,

particularly the abovementioned two witnesses, I have come to the

conclusion that there is no material at all of any nature against the applicant
to frame any of the charges levelled against him.
8.

It is necessary to be noted here that the applicant and accused

no.2 Kailas and their family members were also staying in the same
building in upper floors. Two of the family members of the applicant and

5
appln.1117-2010.sxw

accused no.2 had also died during the incident.

9.

Since there is no material at all of any nature against the

applicant, it is not permissible to frame charge against the applicant only

because the applicant is one of the members of the Housing Society.

10.

In my view, the order of the learned Additional Sessions Judge

needs to be set aside.

11.

Hence, I pass the following order:

Criminal Application is allowed in terms of prayer clause (b).

The order passed by the learned Additional Sessions Judge dated 21.1.2010
in Misc. Application (Exh.3) in Sessions Case No.57 of 2009 is set aside.
The applicant shall stand discharged of the charge levelled against him. His
bail bonds stand cancelled.

12.

Criminal Application is accordingly disposed of.

(M.L. TAHALIYANI, J.)

6
appln.1117-2010.sxw