Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

           REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1263 OF 2019 (Arising out of S.L.P.(Crl.) No.8008 of 2018)

Shiv Kumar Jatia               ...Appellant

Versus

State of NCT of Delhi                 ...Respondent

WITH

CRIMINAL APPEAL NO.1264 OF 2019 (Arising out of S.L.P.(Crl.) No.7969 of 2018)

AND

CRIMINAL APPEAL NO.1265-1267 OF 2019 (Arising out of S.L.P.(Crl.) Nos.10054-10056 of 2018)

J U D G M E N T  

R.Subhash Reddy,J.  

1. Leave granted.

2. These three criminal appeals are filed against the

common judgment and order dated 18.05.2018 passed by

the High Court of Delhi at New Delhi in Crl. M.C. Nos.

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2209, 2208 and 3480 of 2015, as such, they are disposed

of by this common judgment and order.

3. Criminal  Appeal  @  SLP  (Crl.)No.7969  of  2018

is filed by the petitioner in Crl.M.C.No.2208 of 2015

who is accused No.4. Criminal appeal @ SLP(Crl.)No.8008

of 2018 is filed by the petitioner in Crl.M.C. No.2209

of 2015, who is accused No.2, whereas criminal appeals

@  SLP(Crl.)Nos.10054-56  of  2018  are  filed  by  the

complainant  aggrieved  by  the  directions  issued  in

paragraph  143  of  the  impugned  judgment  and  common

order.   

4. The aforesaid criminal misc. cases in Crl.M.C.Nos.

2208 of 2015 and 2209 of 2015 are filed by accused Nos.

4 and 2 respectively, before the High Court of Delhi at

New Delhi under Section 482 of Cr.P.C., for quashing of

the  chargesheet  filed  against  them  and  further

questioning  the order  dated 16.5.2015  passed by  the

learned Metropolitan Magistrate, Patiala House Court,

New Delhi in FIR No.390 of 2013 on the file of Police

Station, R.K. Puram.  By the impugned chargesheet the

appellants/accused  in  criminal  appeal  nos.  @

SLP(Crl.)No.7969 of 2018 and SLP(Crl.)No.8008 of 2018

are  sought  to  be  prosecuted  for  the  offences  under

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Sections 336 and 338 read with Section 32 of the Indian

Penal Code, 1860 (for short IPC) and Section 4 of the

Cigarettes and Other Tobacco Products (Prohibition of

Trade  and  Commerce,  Production,  Supply  and

Distribution) Act, 2003 [hereinafter referred as ‘COTPA

2003’].

5. Initially, crime in FIR No.390 of 2013 on the file

of  Police  Station,  R.K.  Puram  was  registered  on

19.10.2013  for  the  alleged  commission  of  offence

punishable under Section 308 IPC.  After investigation,

investigating agency, having found no ingredients for

offence under Section 308 of IPC, ultimately charged

the appellants Aseem Kapoor-accused No.4 and Shiv Kumar

Jatia-accused  No.2  and  six  others  for  the  offences

under Section 336/338 read with Section 32 of IPC 1860

and Section 4 of COTPA 2003.               

6. Necessary facts in brief  for  disposal  of  these

appeals are as under.   

7. At  first  instance  on  17.10.2013,  a  case,  on

receipt of information that one Gaurav Rishi, resident

of B-18, G.K. II, New Delhi, got admitted in Fortis

Hospital, Vasant Kunj, vide MLC No.2240 of 2013 with

the alleged history of fall from stairs, was registered

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for  offence  under  Section  308  of  IPC  1860.

Subsequently, on investigation, it was found that the

injured Gaurav Rishi fell from the terrace of 6th floor

to  4th floor  of  the  hotel  i.e.  Hyatt  Regency.

Investigation  further  reveals  that  the  injured  has

joined  two  resident  guests  of  the  hotel  who  were

American  citizens  by  name  Ms.  Rebecca  and  Ms.

Margarita.  It is alleged that all of three were having

food and wine in club which was on the 6th floor and

they were frequently going out on terrace for smoking.

During  the  course  of  investigation,  statements  and

supplementary  statements  of  Ms.  Rebecca  and  Ms.

Margarita were recorded who appear to have stated that

on 16.10.2013 Gaurav Rishi(injured) came to hotel for a

social visit to meet them and all of them were sitting

in the executive lounge at the 6th Floor of the hotel.

There is a terrace adjacent to the lounge to which

hotel permitted its guests for smoking.   

8. It is the case of the prosecution that terrace was

dark and there was no light on the terrace and hotel

staff did not stop them from going there.  Precisely it

is the allegation that there was a lapse on the part of

the hotel management in taking safety measures for the

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guests and they have allowed the guests to terrace area

which was not safe.  Referring to a copy of the RTI

reply  received  from  the  office  of  Deputy  Health

Officer,  South  Delhi  Municipal  Corporation  regarding

Hyatt  Regency,  it  is  alleged  that  no  health  trade

license was granted to the hotel for the terrace area

adjoining 6th  floor. Chargesheet further reveals that,

Licensing  Branch,  Delhi  Police,  Delhi  has  issued

license which was renewed upto 31.03.2015 in the name

of P.R.Subramanian, who is also one of the accused in

the case, authorising him to keep a place of public

entertainment known as Hyatt Regency. Referring to the

conditions of license for 4 star and above category

issued  under  regulation  19  of  the  “Regulations  for

keeping places of public entertainment in Delhi 1980”,

it is the case of the prosecution that the Hyatt Hotel

has not adhered to the conditions of license.  Further

alleging criminal negligence and illegal omission on

part  of  the  hotel  management  made  the  following

allegations. The operative portion of the chargesheet

dated 16.03.2015 reads as under:-

“1.  M/s  Asian  Hotels  (North)  through  its Management Director Mr. Shiv Jatia – it is a company which looks after the Hyatt Regency

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Hotel. And is responsible for every criminal act done in the hotel.

2. Shiv Jatia, Managing Director Hyatt Hotel -   He  is  the  only  non-independent  and Executive Director of the Company.  He is present  in  all  the  board  meeting  as  the chairperosn  and  all  decisions  of  the company/Hotel are taken under his signature. He further authorized Mr. PR. Subramanian to apply for lodging license of the company. Therefore, he is overall responsible for all omission  and  commission  of  its  officials, violation  of  lodging  license/health  trade license  with  regards  to  safety  of  its guests.

3.Sh. P.R. Subramanian – The lodging license of the Hyatt hotel has been granted in his name and he is responsible for violation of lodging  license/health  trade  license  with regards to safety of its guests due to which the incident occurs.

4. Sh. Aseem Kapoor S/o Sh. Rajinder Pal Kapoor  General  Manager,  Hyatt  Hotel,  R.K. Puram – He is general manager of the Hyatt Regency and has overall responsibility for looking after the day to day affair of the hotel and also for omission and commission of its officials with regards to safety of its guests.

5. Lt. Col. Deepak Khanijou (Ret.), Director of Security.  He is responsible for overall security  of  the  hotel/guests,  access  to prohibited areas, lightening in the hotel, warning  sign  boards,  installation  of  CCTV and  deployment  of  staff  for  safety  and security of guests.

6.  Mr. Karan Lal S/o Shri Vijay Lal, Asstt. Front office Manager, Hyatt Regency.  His role  is  to  supervise  the  running  of  the front office during his shift hours.  On the

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day of incident he was the shift incharge and lounge manager informed him about the incident but he failed to provide the timely rescue of the injured to the hospital.

7. Pawan Kumar Singh (Asstt. Manager Food and  Beverage)  Hyatt  Regency  Delhi,  Bikaji Cama Place, New Delhi - He was the incharge of the lounge situated at 6th floor.  During his  duty  the  terrace  was  opened  to  the guests,  despite  knowing  that  the  terrace area was not a proper smoking area and was not properly lit and safe.

8.Amit Ghildiyal S/o Sh.M.D. Ghildiyal, Food and Beverage Trainee, Hyatt Hotel – He was the incharge   of the lounge situated at 6th

floor.   During  his  duty  the  terrace  was opened to the guests despite knowing that the terrace area was not a proper smoking area and  was not properly lit and safe, whose  names  are  kept  in  the  column  No.11 (without  arrest)  of  the  challan  for  the offences u/s 336,338 and with 32 IPC and 4 COTPA.”

9. The appellants-accused have filed criminal misc.

cases before the High Court of Delhi under Section 482

of Cr.P.C. seeking quashing of the impugned proceedings

including the summoning order dated 16.05.2015 passed

by the Metropolitan Magistrate, Patiala House Court,

New Delhi.  The said petitions are disposed of by the

impugned  common  order  dated  18.05.2018  by  the  High

Court.  Though the order is bulky but most part of the

order refers to contentions and abstracts from various

documents.  High  Court  has  opined  that  it  is  not

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appropriate to quash the FIR No. 390 of 2013 at Police

Station, R.K. Puram, which was registered against the

appellants-accused for offence under Sections 336 and

338 read with Section 32 of IPC and Section 4 of COTPA,

2003.   While  declining  to  quash  the  proceedings  as

prayed  for, the  petitioners in  criminal misc.  cases

were  allowed  to  appear  through  an  advocate  whose

vakalatnama should be on record.

10. We have heard Sri Sidharth Luthra, learned senior

counsel for the appellant in SLP(Crl.) No.8008 of 2018,

Sri  Mukul  Gupta,  learned  senior  counsel  for  the

appellant in SLP(Crl.) No.7969 of 2018 and Sri Anupam

Lal Das, learned senior counsel for the appellant in

SLP(Crl.)Nos.10054-10056 of 2018.   

11. Learned  senior  counsel  Sri  Sidharth  Luthra,  has

taken us through the impugned order passed by the High

Court and other materials placed on record and made the

following submissions:-

12. From  the  allegations  as  stated  in  the  final

report/chargesheet, submitted by the police, no case is

made out to proceed against the appellant-accused no.2

for the alleged offences under Sections 336, 338 read

with Section 32 of IPC and Section 4 of COTPA 2003.

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Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

The appellant-accused no.2 was overseas from 12.10.2013

to 19.10.2013.  The High Court has considered the case

as  if  “investigation  is  pending”.   To  attract  the

ingredients of Section 336, an act, done rashly and

negligently, to endanger human life or personal safety

are essential elements. There are no such ingredients

to  prosecute  the  appellant-accused  no.2.  To  attract

Section 338 of IPC in addition to the above said acts,

as required to prosecute for the offence under Section

336, additional ingredients of grievous hurt should be

alleged and proved.  The appellant-accused No.2 who is

the  Managing  Director  of  M/s  Asian  Hotels  (North)

Limited, which is a public listed company, runs hotel

Hyatt Regency, is neither the occupier nor the owner

nor the licensee of the hotel.  The injured person and

other resident guests of the hotel, with whom he was

having food and wine, insisted upon going to terrace

area in question to smoke, despite there being another

designated area in the hotel.  M/s Asian Hotels (North)

Ltd., who is made accused no.1 is the owner of the

hotel.   Merely  because  the  appellant  was  holding

position as Managing Director, in absence of specific

allegations of negligence with the criminal intent, is

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not liable for prosecution.  The cause causans for the

incident was the act of injured, climbing a wall with a

height of 2 feet 8 inches with 1 foot 8 inches fence on

the mumty and walking there. The accused no.1 is the

owner  of  the  hotel  and  no  individual  can  be  made

accused  along  with  the  company,  unless  there  is

sufficient evidence of his active role with criminal

intent.  The High Court of Delhi has wrongly placed

reliance on the judgment of this Court in the case of

Sushil Ansal  vs.  State Through CBI1 and rejected the

petition filed by the appellant.

13. In  support  of  his  case  learned  counsel  Sri

Sidharth Luthra relied on the judgments of this Court

in the case of Sunil Bharti Mittal  vs.  Central Bureau

of  Investigation2;  Maksud  Saiyed  vs.   State  of

Gujarat3;  Sharad Kumar Sanghi  vs.  Sangita Rane;4 and

Pooja Ravinder Devidasani   vs.  State of Maharashtra5.

14. Learned  counsel  referred  to  the  status  report,

extracted in the order dated 21.08.2015 passed by the

Joint Commissioner of Police, by which representation

of Ms. Gauri Rishi was rejected.  

1 (2014) 6 SCC 173 2 (2015) 4 SCC 609 3 (2008) 5 SCC 668 4 (2015) 12 SCC 781 5 AIR 2015 SC 675

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15. Learned senior counsel Sri Mukul Gupta appearing

for  the appellant-accused  no.4, who  was the  General

Manager  of  the  hotel  has  made  the  following

submissions:-

16. By  looking  at  the  allegations  made  in  the

chargesheet submitted by the police, no case is made

out to proceed against him for the alleged offences

under Sections 336, 338 read with Section 32 of IPC and

Section 4 of COTPA 2003.  The incident occurred only

due to sheer negligence of the injured who walked out

to the terrace for smoking and climbed on the parapet

wall  with  the  height  of  2  feet  8  inches  which  was

having  additional  fence  of  1  foot  8  inches.   The

appellant-accused No.4 was also out of country on the

date  of  incident.  Only  on  the  ground  that  the

appellant-accused no.4 is a General Manager, he cannot

be  held  vicariously  liable,  as  he  is  not  even  the

licensee of the hotel.

17. Learned  senior  counsel  while  referring  to  the

judgment  in  the  case  of  Sunil  Bharti  Mittal  vs.

Central Bureau of Investigation2 and relied on other

judgments in support of his case.

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18. Learned  senior  counsel  Sri  Anupam  Lal  Das

appearing  for  the  appellant  in  Criminal  Appeal  @

SLP(Crl.)Nos.10054-10056 of 2018, filed by the sister

of the injured, has made the following submissions:-

19. Having  regard  to  negligence  and  violation  of

conditions  of  license,  made  against  the  appellants-

accused nos. 2 and 4, no case is made out to quash the

proceedings.  The appellants-accused being the Managing

Director and the General Manager of the company, cannot

escape their responsibility for their negligence and

other incharge persons of the hotel, which resulted in

an unfortunate incident in which the brother of the

appellant  has  suffered  grievous  hurt.   There  are

absolutely no grounds to interfere with the impugned

order passed by the High Court.  At the same time, the

High Court has committed error in issuing directions in

cryptic and unreasoned manner, in granting exemption

for personal appearance of the accused.  The exemption

for appearing in person, is a matter to be considered

under Section 205 and/or Section 317 of Cr.P.C. by the

concerned Magistrate.

20. Learned  counsel  has  placed  various  decisions  of

this  Court  wherein  scope  of  Section  482  Cr.P.C.  is

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considered.  Learned counsel also relied on in support

of his case, in the case of TGN Kumar  vs.  State of

Kerala & Ors.6 and also the judgment in the case of

Madan Mohan  vs.  State of Rajasthan7.                 

21. We  have  considered  the  detailed  submissions,

arguments advanced by the learned counsel on both the

sides and also perused order and other materials placed

on record.

22. We have perused the impugned order passed by the

High  Court.  The  High  Court  has  referred  to  the

contentions in detail and has arrived at the conclusion

that it is not a fit case to quash the proceedings.

The High Court has mainly relied on the judgment of

this  Court  in  the  case  of  Sushil  Ansal vs.  State

Through  CBI1.   Having  regard  to  the  order  which  we

propose to pass, we feel it is not desirable to record

findings in detail, except to the extent required for

the  disposal  of  these  appeals.   As  much  as  these

appeals  are  filed  against  the  order  passed  on

application for quashing the proceedings, under Section

482  of Cr.P.C.,  any findings  on various  contentious

6 (2011) 2 SCC 772 7 (2018) 12 SCC 30

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issues will prejudice the case of parties during the

trial.

23. At the outset it is to be noticed that  M/s Asian

Hotels  (North)-  accused  No.1,  which  is  the  listed

public  company  runs  Hotel  Hyatt  Regency,  of  which

accused No.4 is the General Manager and other personnel

who are incharge of various departments are also made

accused apart from the appellants (accused). So far as

accused No.2 is concerned, he is the Managing Director

of M/s Asian Hotels (North) Limited which company is

made first accused in the case.  The appellant-Shiv

Kumar Jatia is sought to be prosecuted only on the

ground that he is the Managing Director of M/s Asian

Hotels  (North)  Limited,  which  runs  the  Hotel  Hyatt

Regency and is the only non-independent and Executive

Director of the company and chairs the Board meeting of

the  company  and  decisions  are  taken  under  his

signatures.  Further it is pleaded that he authorized

Mr. P.R. Subramanian to apply for lodging license of

the company.  Therefore, he is overall responsible for

all  omissions  and  commissions  of  its  officials,

violation of lodging license/health trade license etc.

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24. So  far  as  accused  No.4  –  Aseem  Kapoor  is

concerned, it is alleged that he is the General Manager

of  the  Hyatt  Regency.   As  such  he  is  overall

responsible for looking after the day to day affair of

the hotel and also is responsible for omissions and

commissions  of  its  staff  with  regard  to  safety  of

guests.  

25. Mr. P.R. Subramanian, is also made as one of the

accused on whose name the lodging license of the hotel

has been granted.   

26. To prove the alleged offence under Section 336,

essential  elements  are,  the  act,   done  rashly  and

negligently, to endanger human life or personal safety.

To prove the guilt of the accused under Section 338, in

addition  to  the  elements  under  Section  336,  an

additional  consequence  of  grievous  hurt  is  to  be

proved.  It is clear from the material placed on record

that the appellant (A-4) was not in the country on the

date of the incident and the license of the hotel is in

the name of accused No.3 namely P.R. Subramanian. The

owner of the hotel is M/s Asian Hotels (North) Limited,

which is a public listed company made as accused no.1.

Taking on the face value the allegations made against

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the appellant (accused no.2) in the chargesheet,  so

far as Shiv Kumar Jatia he is sought to be prosecuted

for the aforesaid offences only on the ground that he

is   Managing  Director  of  M/s  Asian  Hotels  (North)

Limited, which runs Hotel Hyatt Regency and also on the

ground  that  he  is  the  only  non-independent   and

Executive Director of the Company who chairs meeting of

the company and signatory for various decisions.

27. The  liability  of  the  Directors  /the  controlling

authorities  of  company,  in  a  corporate  criminal

liability is elaborately considered  by this Court in

the case of  Sunil Bharti Mittal2.  In the aforesaid

case,  while  considering  the  circumstances  when

Director/person in charge of the affairs of the company

can also be prosecuted, when the company is an accused

person, this Court has held, a corporate entity is an

artificial  person  which  acts  through  its  officers,

Directors, Managing Director, Chairman, etc.  If such a

company commits an offence involving mens rea, it would

normally be the intent and action of that individual

who would act on behalf of the company.  At the same

time it is observed that it is the cardinal principle

of criminal jurisprudence that there is no vicarious

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liability unless the Statute specifically provides for.

It is further held by this Court, an individual who has

perpetrated the commission of an offence on behalf of

the company can be made an accused, along with the

company, if there is sufficient evidence of his active

role coupled with criminal intent.  Further it is also

held  that  an  individual  can  be  implicated  in  those

cases  where  statutory  regime  itself  attracts  the

doctrine  of  vicarious  liability,  by  specifically

incorporating such a provision.

28. Though there are allegations of negligence on the

part of hotel and its officers who are incharge of day

to day affairs of the hotel, so far as  appellant–

accused  no.2  Shiv  Kumar  Jatia  is  concerned,  no

allegation is made directly attributing negligence with

the  criminal  intent  attracting  provisions  under

Sections 336, 338 read with Section 32 of IPC.  Taking

contents   of the final report as it is we are of the

view  that,  there  is  no  reason  and  justification  to

proceed against him only on ground that he  was the

Managing Director of M/s Asian Hotels (North) Limited,

which runs Hotel Hyatt Regency. The mere fact that he

was chairing the meetings of the company and taking

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decisions,  by  itself  cannot  directly  link  the

allegation of negligence with the criminal intent, so

far as appellant–accused no.2. Applying the judgment in

the case of  Sunil Bharti Mittal2 we are of the view

that the said view expressed by this Court, supports

the case of appellant/accused no.2.

29. By applying the ratio laid down by this Court in

the case of  Sunil Bharti Mittal2 it is clear that an

individual either as a  Director or a Managing Director

or Chairman of the company can be made an accused,

along with the company, only if there is sufficient

material  to  prove  his  active  role  coupled  with  the

criminal intent.  Further the criminal intent alleged

must have direct nexus with the accused.   Further in

the case of  Maksud Saiyed   vs.  State of Gujarat &

Ors.3 this Court has examined the vicarious liability

of  Directors  for  the  charges  levelled  against  the

Company.  In the aforesaid judgment this Court has held

that, the Penal Code does not contain any provision for

attaching  vicarious  liability  on  the  part  of  the

Managing Director or the Directors of the Company, when

the accused is a Company.  It is held that vicarious

liability of the Managing Director and Director would

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arise provided any provision exists in that behalf in

the  Statute.  It  is  further  held  that  Statutes

indisputably  must  provide  fixing  such  vicarious

liability.  It is also held that, even for the said

purpose,  it  is  obligatory  on  the  part  of  the

complainant to make requisite allegations which would

attract  the  provisions  constituting  vicarious

liability.

30. In  the  judgment  of  this  Court  in  the  case  of

Sharad Kumar Sanghi  vs.  Sangita Rane4 while examining

the allegations made against the Managing Director of a

Company, in which, company was not made a party, this

Court has held that when the allegations made against

the Managing Director are vague in nature, same can be

the ground for quashing the proceedings under Section

482 of Cr.P.C.  In the case on hand principally the

allegations are made against the first accused-company

which runs Hotel Hyatt Regency.  At the same time, the

Managing Director of such company who is accused no.2

is a party by making vague allegations that he was

attending all the meetings of the company and various

decisions  were  being  taken  under  his  signatures.

Applying the ratio laid down in the aforesaid cases, it

19

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

is clear that  principally the allegations are made

only against the company and other staff members who

are incharge of day to day affairs of the company.  In

absence of specific allegations against the Managing

Director of the company and having regard to nature of

allegations made which are vague in nature, we are of

the  view  that  it  is  a  fit  case  for  quashing  the

proceedings,  so  far  as  the  Managing  Director  is

concerned.         

31.  The order dated 21.08.2015 passed by the Joint

Commissioner of Police by which representation of Ms.

Gauri  Rishi in  compliance of  order dated  03.07.2015

passed by this Court, was rejected, is also placed on

record.  The  said  order  rejecting  the  representation

regarding the renewal of licence to the Hotel Hyatt

Regency, refers to status report submitted by D.C.P.

(South) District.  In the said report it is stated that

there  is a  terrace on  the 6th floor adjoining   the

Regency Club which is used as smoking area for the

guests because the Regency Club is non-smoking area for

the guests.  At 11.30/40 p.m. both the ladies resident

guests  of  the  hotel  who  are  American  citizens  and

Gaurav Rishi (injured) went to the terrace for smoking.

20

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

It is further stated that while both ladies were busy

in  gossiping  and  smoking,  Gaurav  Rishi  (injured)

climbed over and came at the roof of stair case (Mumty)

which is at front corner of the terrace.  It is also

stated that the staircase of terrace is for emergency

exit and was under renovation.  It has a parapet wall

of about 2 feet 8 inches height, with additional 1 foot

8 inch of iron railing.  

32. With reference to negligence and alleged violation

of licence conditions by the General Manager and other

staff members of the hotel, who are incharge of day to

day affairs of the hotel, is a matter which is to be

examined during trial.  Although it is the case of the

accused no.4/General Manager, that he was also out of

country on the date of incident, at the same time it is

to be noticed that he is General Manager of the very

hotel and whether any incharge arrangements are made of

his responsibilities etc. is a matter which is to be

examined only during trial.  He stands on a different

footing to that of, Managing Director of M/s. Asian

Hotels (North) Limited, who is accused no.2.  When the

allegation is made that there is a violation of licence

conditions and negligence against the General Manager

21

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

and other staff members, appropriate findings can be

recorded after full-fledged trial.  It is not possible

to record any finding of negligence basing on a status

report, referred to, in the order passed by the Joint

Commissioner of Police dated 21.08.2015.

33. The  appellants  (accused)  are  also  sought  to  be

prosecuted for the alleged offence under Section 4 of

COTPA 2003.  To prosecute the appellants-accused for

the offence under Section 4 of COTPA 2003 it is alleged

that  the  terrace  on  the  6th Floor  was  open  to  the

guests, despite knowing that terrace area was not a

proper smoking area and was not properly lit and safe.

Section 4 and proviso to the said Section of COTPA 2003

read as under:-

“4. Prohibition of smoking in a public place.-No  person  shall  smoke  in  any public place:

Provided that in a hotel having 30 rooms or a restaurant having seating capacity of  thirty  persons  or  more  and  in  the airports,  a  separate  provision  for smoking area or space may be made.”

From a reading  of the above Section 4 of the Act it is

apparent that it prohibits smoking in any public place.

However, as per the proviso, a hotel having 30 rooms or

a restaurant having seating capacity of 30 persons or

22

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

more  and  in  the  airports,  a  separate  provision  for

smoking area or space may be made.  It is clear that it

obligates a hotel having 30 rooms or a restaurant with

a seating capacity of 30 persons or more shall have a

provision for separate smoking area.  In the case on

hand it is merely alleged that though the terrace was

not notified as a smoking area, the injured and other

resident guests of the hotel were allowed to smoke in

the terrace area in the 6th Floor.  It is the specific

case of the appellants-accused that there is a separate

smoking  area  at  the  lobby  level  of  the  hotel.   In

absence of making any allegations that hotel has not

provided at all any smoking area in the entire hotel

there  is  absolutely  no  reason  or  justification  to

prosecute  the  appellants-accused  for  the  alleged

offence under Section 4 of COTPA 2003. Even if the

allegations are taken on the face value as mentioned in

the chargesheet no offence is made out against both the

appellants qua the alleged offence committed by them to

prosecute under Section 4 of the COTPA 2003.  For the

aforesaid  reasons,  so  far  as  the  prosecution  under

Section 4 of COTPA 2003 is concerned it is a fit case

23

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

to be quashed against both the accused no.2 – Shiv

Kumar Jatia and also accused no.4 – Aseem Kapoor.

34. From a reading of the impugned order passed by the

High  Court  we  are  of  the  view  that  the  High  Court

mainly relied on the judgment in the case of  Sushil

Ansal  vs.  State Through CBI1.  In the aforesaid case

which relates to Uphaar Cinema which caught fire and

resulted in death of number of persons was a case where

a repair to the transformer that had been made on the

day before the incident, was not properly done.  The

faulty repair to the transformer resulted in  a loose

connection that led to the catching of fire to the

transformer and all the cars in the parking lot were

burnt in the fire which resulted in suffocation for

viewers of the cinema in the hall.  Further it was held

that in that case there was an addition of an 8-seater

box that closed off the exit on the right side of the

balcony.  It was also found that the owners of the

cinema have added 52 additional seats to the theatre

which blocked the gangway on the right side of the

movie hall.  In the aforesaid case both A-1 and A-2

were found  guilty not by virtue of their position in

the  company,  but  rather  by  virtue  of  specific

24

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

allegations made against them.  In the aforesaid case

accused themselves were found to be occupiers, there

were  gross statutory  violations, which  had a  direct

nexus with the death of the victims.  Further looking

at the facts and circumstances of the present case, the

said  case cannot  be applied  against the  appellants-

accused.

35. Having regard to the case law referred above by

applying the facts of the case on hand we are of the

view that the case of the appellant-accused no.2 Shiv

Kumar Jatia in Crl.Appeal @ SLP (Crl.) No.8008 of 2018

falls within one of the categories enumerated in the

case of State of Haryana v.  Bhajan Lal8 to invoke the

inherent powers under Section 482 of Cr.P.C. either to

prevent the abuse of the process of court or otherwise

to secure the ends of justice.

36. In  the  criminal  appeals  @  SLP  (Crl.)Nos.10054-

10056  of  2018,  the  sister  of  the  victim,  has  also

questioned  the  directions  issued  by  the  High  Court

allowing them to appear before the Trial Court through

an advocate and by permitting them to appear as and

when there is a specific direction by the Trial Court

8 1992 Supp.(1) SCC 335

25

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

to appear before such court.  It is the case of the

appellant-complainant  in  the  above  said  criminal

appeals that while dismissing the criminal misc. cases

filed under Section 482 of Cr.P.C., the High Court has

committed  error  in  issuing  directions  as  referred

above.  It is the case of the said appellant that to

dispense  with  personal  appearance  and  allowing  the

accused through an advocate can be considered only by

the Magistrate under Section 205 and/or 317 of Cr.P.C.

But without recording any reason the High Court has

issued  such  directions  which  are  impugned  in  the

appeals.   Having  perused  the  directions  issued

permitting the accused to appear through an advocate,

such direction is within the power of the High Court in

exercise of inherent powers conferred under Section 482

Cr.P.C.  Having regard to nature of directions issued

by the High Court, as referred  above, we are of the

view that it is not a fit case to interfere with the

same, in these appeals.    

37. For  the  aforesaid  reasons,  criminal  appeal  @

S.L.P.(Crl.)No.8008 of 2018 filed by Shiv Kumar Jatia -

accused  no.2  is  allowed  by  setting  aside  the  order

dated 18.5.2018 passed in Crl.M.C. No.2209 of 2015 by

26

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

the High Court of Delhi at New Delhi and consequently

criminal  proceedings  initiated  against  the  appellant

(A-2) and the chargesheet filed in FIR No.390 of 2013

on the file of Police Station at R.K. Puram and further

summoning order dated 16.5.2015 passed by the learned

Metropolitan Magistrate, Patiala House Court, New Delhi

stands quashed, qua the said appellant.    

38. Criminal  appeal  @  S.L.P.(Crl.)No.7969  of  2018

filed by the accused No.4 - Aseem Kapoor is partly

allowed, quashing the  chargesheet filed against him in

FIR No.390 of 2013 on the file at Police Station, R.K.

Puram and further summoning order dated 16.05.2015 only

to the extent of proceedings initiated against him for

alleged offence under Section 4 of COTPA 2003.   

39. Criminal appeals @ S.L.P.(Crl.)Nos.10054-10056 of

2018 filed by Ms. Gauari Rishi are dismissed.

40. We  make  it  clear  that  the  observations  and

findings  recorded  in  the  impugned  order  dated

18.05.2018 passed by the High Court of Delhi at New

Delhi and  order of this Court are only for the purpose

of  disposal  of  these  appeals,  arising  out  of

applications filed under Section 482 of Cr.P.C.

27

Crl.A. @ SLP( Crl.)No.8008/18 etc. etc.

41. We further make it clear that it is open to the

Trial Court to record its own findings post-trial, on

its  own  merits  depending  upon  the  case  made  out

strictly in accordance with law.       

.....................J.      [Abhay Manohar Sapre]

....................J.  [R. Subhash Reddy]

New Delhi, August 23, 2019

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