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.

1

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

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

2

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

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

3

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

for offence under Section 308 of IPC 1860.

Subsequently, on investigation, it was found that the

injured Gaurav Rishi fell from the terrace of 6

th

floor

to 4

th

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 6

th

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 6

th

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

4

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

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 6

th

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

5

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

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

6

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

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 6

th

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 6

th

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

7

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

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.

8

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

9

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

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 CBI

1

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 Investigation

2

; Maksud Saiyed vs. State of

Gujarat

3

; Sharad Kumar Sangh i vs. Sangita Rane;

4

and

Pooja Ravinder Devidasani vs. State of Maharashtra

5

.

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

5AIR 2015 SC 675

10

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

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 Investigation

2

and relied on other

judgments in support of his case.

11

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

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

12

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

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 Rajasthan

7

.

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 CBI

1

. 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

13

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

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.

14

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

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

15

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

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 Mittal

2

. 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

16

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

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

17

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

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 Mittal

2

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 Mittal

2

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

18

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

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 Rane

4

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 6

th

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 6

th

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 6

th

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 CBI

1

. 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 Lal

8

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

81992 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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