occupiers, not the owners have a duty to care for the safety of the patrons

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
91. It was contended by Mr. Jethmalani that the offence if any having been committed by the
company, officers of the company could not be vicariously held guilty of criminal negligence.
Reliance, in support of that submission was placed by Mr. Jethmalani upon the provisions of
Section 141 of the Negotiable Instruments Act and the decisions of the Court in S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla (2005) 8 SCC 89, JK Industries and others v. Chief Inspector
of Factories and Boilers (1996) 6 SCC 685. It was urged that in the absence of any provisions in the
IPC rendering the officers of the company vicariously liable for prosecution for the offences
committed by the company, there was no question of the appellant Ansal brothers being held guilty
that too for an offence committed long after they had ceased to hold any position in the company.
We regret our inability to accept that submission. We say so because the appellants have not been
prosecuted as officers of a company accused of committing an offence, nor is it the case of the
prosecution that the appellants are vicariously liable as in the case of those falling under Section 141
of the Negotiable Instruments Act. The prosecution case on the other hand is that in their capacity
as occupiers the appellant Ansal brothers had a duty to care for the safety of the patrons which duty
they grossly neglected. The entire substratum of the case is, therefore, different from the assumption
on which Mr. Jethmalani has built his argument. The assumption being misplaced, the argument
can be no different

(vii) Degree and nature of care expected of an occupier of a cinema building:
92. What is the degree of care expected from the occupier of a cinema is the next question to which
we must advert at this stage. Two fundamental principles must be noticed at the threshold while
answering that question. The first is that the degree and nature of care expected of an occupier
depends upon the fact situation in which the duty to care arises. The second and equally important
principle at common law is that the degree of care in a given fact situation would depend upon
whether the person to whom the duty is owed is a contractual visitor, invitee, licensee or trespasser.
Of these the occupier owes the highest degree of care to a contractual visitor viz. a person who pays
consideration to be present on the premises for some purpose; whatever that purpose be. At
common law there is an implied term in the contract between the occupier and the visitor that the
occupiers premises shall be reasonably safe. The occupiers duty must be held to have been
breached if any injury is caused to a contractual visitor by any defect in the premises apart from a
latent defect. Winfield & Jolowicz on Tort (Sixteenth Edition) explains the duty of an occupier to
take care towards different categories of visitors in the following passage:
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 42
At common law the duties of an occupier were cast in a descending scale to four
different kinds of persons and a brief account is necessary to gain a full
understanding of the Act. The highest degree of care was owed by the occupier to one
who entered in pursuance of a contract with him (for example a guest in an hotel): in
that case there was an implied warranty that the premises were as safe as reasonable
care and skill could make them. A lower duty was owed to the invitee, that is to say,
a person who (without any contract) entered on business of interest both to himself
and the occupier (for example a customer coming into a shop to view the wares): he
was entitled to expect that the occupier should prevent damage from unusual danger,
of which he knew or ought to have known. Lower still was the duty to the licensee, a
person who entered with the occupiers express or implied permission but without
any community of interest with the occupier: the occupiers duty towards him was to
warn him of any concealed danger or trap of which he actually knew. Finally, there
was the trespasser, to whom under the original common law there was owed only a
duty to abstain from deliberate or reckless injury.
93. One of the earliest common law decisions regarding occupiers liability to visitors is in Mclenan
v. Segar (1917) 2 KB 325 where an innkeeper was held liable for injury caused to a guest while
escaping from a fire in the inn. The fire was caused because there was no proper mechanism for
conveying the smoke and burning soot from the kitchen chimney to the atmosphere. The
mechanism for conveying the smoke had been installed in 1910 by an architect employed by the
landlord from whom the innkeeper had taken the premises on lease. However, the fact that the
defect arose from the architect's negligence did not prevent liability from being imposed on the
innkeeper. The relevant portion of the judgment is as follows:
Where the occupier of premises agrees for reward that a person shall have the right
to enter and use them for a mutually contemplated purpose, the contract between the
parties (unless it provides to the contrary) contains an implied warranty that the
premises are as safe for that purpose as reasonable care and skill on the part of
anyone can make them. The rule is subject to the limitation that the Defendant is not
to be held responsible for defects which could not have been discovered by
reasonable care or skill on the part of any person concerned with the construction,
alteration, repair, or maintenance of the premises: and the head-note to Francis v.
Cockrell must to this extent be corrected. But subject to this limitation it matters not
whether the lack of care or skill be that of the Defendant or his servants, or that of an
independent contractor or his servants, or whether the negligence takes place before
or after the occupation by the Defendant of the premises.
94. To the common law duty of care is at times added a further obligation which too the occupier
must discharge in order that his duty to care can be said to have been fully discharged. Such duties
are often cast under statutes enacted by the legislature or in Rules & Regulations framed in exercise
of powers delegated under such enactments. These additional safeguards against injury to life and
limb of innocent parties who are working in the premises or who visit such premises, in large
numbers, are in public interest and imply that even the State in all its manifestations is concerned
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
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about the safety of those visiting such public places, be it a cinema hall as in the case at hand or any
other place of entertainment or a place where people go for any other purpose whether as
contractual visitors or otherwise. The existence of such a statutory duty especially one that concerns
safety of the visitors adds another dimension to the duty to care to which we shall presently advert.
But before we do so we need to examine whether any such statutory duty was cast upon the occupier
of the cinema and if so what was the nature of that duty.