The Lucknow Bench of the Allahabad High Court has granted anticipatory bail to Pawan Agarwal, owner of Hotel Levana Suites, in the Hotel Levana fire case of Hazratganj, Lucknow.
A Single Bench of Justice Rajesh Singh Chauhan passed this order while hearing an anticipatory bail application filed by Pawan Agarwal.
The anticipatory bail application has been filed by the applicant (Pawan Agarwal) apprehending his arrest in Case Crime /FIR under Sections 304/308 IPC, Police Station-Hazratganj, District-Lucknow.
Counsel for the applicant submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story so narrated in the First Information Report.
On account of the prosecution story, so narrated in the FIR, on 05.09.2022 at about 7:00 a.m fire broke out in the Hotel Levana Suites situated at Madan Mohan Malviya Marg, Lucknow, resultant thereof a smoke was filled up in the Hotel, which resulted in the death of 04 innocent persons due to suffocation and 07 persons got injured and became unconscious.
The Fire Fighters, Team of SDRF and Local Police tried to control the fire. The reason for breaking out such a fire is still untraceable. As per allegations, there was no provision in the Hotel which could have resulted in letting the smoke out of the Hotel. Iron Grills were installed outside the windows which caused trouble in dousing the fire.
Owners and Managers of the Hotel had knowledge that in case of any emergency lives will be lost but no preventive measures were taken which resulted in the incident.
On the first date of admission on 29.09.2022, Senior Advocate on behalf of the applicant has informed that out of 04 accused persons, 03 accused persons, except the applicant, have been arrested.
He further informed that the accused persons, namely, Rohit Agarwal and Rahul Agarwal, who are his family members as Rohit Agarwal is son of the applicant; and Rahul Agarwal is a nephew of the applicant, are in judicial custody and there is no male member left in the family except the applicant.
He has also informed that the applicant is an old aged ailing person and is ready to co-operate in the investigation, therefore, his liberty may be protected.
His counsel has submitted that when the son and nephew of the applicant, who were managing the affairs of the Hotel, are behind the bar, therefore, the custodial interrogation of the applicant would not be required.
Considering the aforesaid submissions, this Court passed an order dated 29.09.2022 directing the counsels for the victims to file their respective counter affidavits and also directing the Additional Government Advocate to seek complete instructions in the matter, summon the case diary to show the Court and also seek specific instructions as to whether the custodial interrogation of the applicant would be required even if he participates in the investigation properly.
Dileep Kumar, Senior Advocate on behalf of the applicant has submitted that the impugned FIR has been lodged under Sections 304 and 308 IPC.
The maximum punishment under Section 308 IPC is seven years or fine or both. However, punishment under Section 304 IPC is imprisonment for life or imprisonment for ten years if culpable homicide not amounting to murder is done with intention of causing death. However, if an act is done with the knowledge that it is likely to cause death, but without any intention to cause death, the imprisonment is ten years or fine or both.
He further submitted that if the death is caused due to any negligent act, then such offence shall fall within the category of Section 304-A IPC and in that case, the imprisonment would be for two years or fine or both.
Dileep Kumar, Senior Advocate also submitted that if the allegations of the FIR is taken on its face value, however it is not admitted, which says that act of the applicant is done with the knowledge that it is likely to cause death, but without any intention to cause death, and in that case the imprisonment may be for ten years, or fine or both, meaning thereby in such case the trial court may only award the fine against the accused persons.
Dilip Kumar, Senior Advocate said that the factum of knowledge as per Section 304 IPC would be missing in the case inasmuch as all possible preventive measures were taken in the Hotel, however, the aforesaid fact may be established during investigation. But in that case too, the only punishment of fine may be awarded.
So as to substantiate his arguments that in the present case the offence in question at the best may be considered ‘as causing death by negligent act’ as defined under Section 304-A IPC wherein the maximum punishment is two years or fine or both, Dileep Kumar has drawn attention of the Court towards the decision of Apex Court rendered in re: Sushil Ansal vs State through Central Bureau of Investigation reported in (2014) 6 SCC 173 wherein fire had broken out in a Cinema Hall in the name of ‘Uphar Cinema’ of Sunil Ansal and Gopal Ansal and 59 persons succumbed due to lethal carbon monoxide. The prosecution in that case had pleaded that the offence of those accused persons should be tried under Section 304 Part-II whereas Advocates from the side of those accused persons had pleaded that the offence, if any, committed by those accused persons should be considered under Section 304-A IPC.
Per contra, Vinod Kumar Shahi, Additional Advocate General of U.P assisted by S.P Tiwari and Vinay Kumar Shahi, Additional Government Advocates has submitted that looking into the severity of offence of the applicant and also the fact that 04 persons succumbed to the injuries and 07 persons were injured on account of improper safety measures of the Hotel of which the applicant is one of the Directors, he is not entitled for anticipatory bail.
Shahi has further submitted that the Hotel in question was being run in the residential area and the building of Hotel was not declared as Hotel, rather, it was the residential property but such Hotel was being run in an unauthorized manner without having any proper sanction from the Competent Authority.
He has also submitted that even the Lucknow Development Authority (in short L.D.A) had cancelled the map so submitted by the Management of Hotel and direction was issued to remove unauthorized constructions but the Management of Hotel did not pay any heed and continued its illegal activity, which resulted in an unfortunate incident causing death of 04 persons.
The Court said that,
In the case, admittedly the investigation is going on. Out of 04 accused persons, 03 accused persons are under judicial custody from the very beginning. One of those accused persons, Rahul Agarwal was actively running the affairs of the Hotel and another accused named Rohit Agarwal was also associating him being one of the Directors. Such accused Rohit Agarwal is son of the applicant. The applicant is also one of the Directors.
Since the investigation is going on, therefore at this stage, it cannot be said or presumed as to under what sections the charge-sheet would be filed but there is one Section i.e 308 IPC in the FIR wherein the maximum punishment is upto seven years or fine or both and for Section 304 Part-II IPC the punishment may be 10 years or fine or both.
So far as the arguments of I.B Singh, Senior Advocate for the victim is concerned to the effect that the provisions of Section 437 CrPC, which protects the liberty of infant or woman or sick or infirm person would not be applicable in case of Section 438 CrPC, the Court found that the provisions of Section 437 CrPC are independent in nature which clearly provides the circumstances under which the bail may be taken in case of non-bailable offence. The anticipatory bail is also one of the species of bail. Further, when the provisions of Section 437 CrPC are applicable under Section 439 CrPC which provides the regular bail power of all the High Courts and Sessions Court, the application of Section 437 CrPC may not be barred for Section 438 CrPC if facts and circumstances convinces the Court to pass such order.
“Since the applicant, who is an old aged ailing person, is willing to co-operate in the investigation, there is no recital in the counter affidavit of the State that the custodial interrogation of the applicant is required and he has given his undertaking that he shall not misuse the liberty of anticipatory bail, if granted, I find it appropriate that liberty of the applicant may be protected till completion of investigation or filing of the police report under Section 173 (2) CrPC in terms of the dictum of Apex Court rendered in re: Sushila Agrawal Vs State (NCT of Delhi)-2020 SCC online SC 98”, the Court observed while disposing the anticipatory bail application.
Therefore, the Court directed that in the event of arrest, applicant (Pawan Agarwal) shall be released on anticipatory bail in the aforesaid case crime number, till completion of investigation, on his furnishing a personal bond of Rs 1,00,000 with two sureties each in the like amount to the satisfaction of the arresting authority/ court concerned with the following conditions:-
1. That the applicant shall make himself available for interrogation by the police officer as and when required;
2. that the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the court or to any police officer or tamper with the evidence;
3. that the applicant shall not leave India without prior permission of the court;
4. that the applicant shall not pressurize/ intimidate the prosecution witnesses and shall not tamper with evidence during trial;
5. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
6. that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;
7. that in default of any of the conditions mentioned above, the counsel for the State shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.