Case: SHIV KUMAR JATIA Vs. STATE OF NCT OF DELHI

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 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 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 (2014) 6 SCC 173 . 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 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 1992 Supp.(1) SCC 335 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 recordHaving 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 issues will prejudice the case of parties during the trial28. 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 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 (2015) 4 SCC 609  we are of the view that the said view expressed by this Court, supports the case of appellant/accused no.229. 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 accusedIn 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 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 concerned32. 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 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 21.08.2015From 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 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 to be quashed against both the accused no.2 – Shiv Kumar Jatia and also accused no.4 – Aseem KapoorIn 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- accused35. 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 1992 Supp.(1) SCC 335 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 justice36. 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 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.