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TMI Blog2019 (8) TMI 1675X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure, 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 Sections 336 and 338 read with Section 32 of the Indian Penal Code, 1860 (for short IPC) and Section 4 of the Cigarettes and Oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hotel. And is responsible for every criminal act done in the hotel. 2. Shiv Jatia, Managing Director Hyatt Hotel-He is the only non-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed have filed criminal misc. cases before the High Court of Delhi Under Section 482 of Code of Criminal Procedure 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 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 Indian Penal Code 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a relied on the judgments of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609; Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668; Sharad Kumar Sanghi v. Sangita Rane (2015) 12 SCC 781 and Pooja Ravinder Devidasani v. State of Maharashtra AIR 2015 SC 675. 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. 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 Indian Penal Code 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 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Code of Criminal Procedure, any findings on various contentious 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 author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 Indian Penal Code. 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 Code of Criminal Procedure, 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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, crim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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