negligance is proved when there is a statutory obligation to care and rashness implies recklessness or indifference to consequences

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)
99. That brings us to the question whether and if so what is the effect of a statutory obligation to
care for the safety of the visitors to a cinema hall, where a duty to care otherwise exists under the
common law. The answer can be best provided by a reference to the English decision in Lochgelly
Iron & Coal Co. Ltd. v. MMullan, (1934) AC 1. A reading of this case would suggest that where a
duty of care exists under common law, and this duty is additionally supported and clarified by
statutory provisions, a breach of the statutory duty would be proof enough of negligence. It would
not be open to the defendant in such a case to argue that the harm was not foreseeable, since the
very object of the legislation is to put that particular precaution beyond controversy.
100. The import and significance of the case is explained in Clerk & Lindsell on Torts (Twentieth
Edition) as follows:
In Lochgelly Iron & Coal Co Ltd v. M'Mullan, the House of Lords came close to
equating an action for breach of statutory duty with an action in negligence. Lord
Atkin said that all that was necessary to show is a duty to take care to avoid injuring;
and if the particular care to be taken is prescribed by statute, and the duty to the
injured person to take the care is likewise imposed by statute, and the breach is
proved, all the essentials of negligence are present. Negligence did not depend on
the Court agreeing with the legislature that the precaution ought to have been taken,
because the very object of the legislation is to put that particular precaution beyond
controversy. On this approach breach of a statutory duty constitutes negligence per
se, but it applies only to legislation which is designed to prevent a particular mischief
in respect of which the defendant is already under a duty in common law. Failure to
meet the prescribed statutory standard is then treated as unreasonable conduct
amounting to negligence, because a reasonable man would not ignore precautions
required by statute, and the defendant cannot claim that the harm was unforeseeable
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because the legislature has already anticipated it. The statutory standard
crystallises the question of what constitutes carelessness. On the other hand, where
legislation does not deal with circumstances in which there is an existing common
law duty, then, unless expressly stated, breach of the statute would not give rise to an
action, because the damages may greatly exceed the penalty considered appropriate
by the legislature.
101. Reverting back to the degree and nature of care expected of an occupier of a cinema hall, we
must at the outset say that the nature and degree of care is expected to be such as would ensure the
safety of the visitors against all foreseeable dangers and harm. That is the essence of the duty which
an occupier owes to the invitees whether contractual or otherwise. The nature of care that the
occupier must, therefore, take would depend upon the fact situation in which duty to care arises. For
instance, in the case of a hotel which offers to its clients the facility of a swimming pool, the nature
of the care that the occupier of the hotel would be expected to take would be different from what is
expected of an occupier of a cinema hall. In the former case, the occupier may be expected to ensure
that the pool is safe for use by the guests in the hotel, in that the depth is safe for those using the
diving board if any, that life guards are on duty when children or other guests are using the pool,
that immediate medical succor is provided to those who may meet with any accident, and so on. The
nature of duty is in that sense different from that of cinema owner/occupier, where all these may not
form part of his duty to care. In the case of a cinema hall the nature of an occupiers duty to care
may, inter alia, require him to ensure rapid dispersal from the hall in the event of any fire or other
emergency, and for that purpose to provide suitable gangways and keep them clear of any
obstruction, to provide proper exits, to keep the exit signs illuminated, to provide emergency
lighting, to provide fire fighting systems, alarm systems and to employ and keep trained personnel
on duty whenever an exhibition of cinematograph is in progress.
102. An occupier of a cinema would be expected to take all those steps which are a part of his duty to
care for the safety and security of all those visiting the cinema for watching a cinematograph
exhibition. What is important is that the duty to care is not a onetime affair. It is a continuing
obligation which the occupier owes towards every invitee contractual or otherwise every time an
exhibition of the cinematograph takes place. What is equally important is that not only under the
common law but even under the statutory regimen, the obligation to ensure safety of the invitees is
undeniable, and any neglect of the duty is actionable both as a civil and criminal wrong, depending
upon whether the negligence is simple or gross.
103. In the case of gross negligence prosecution and damages may be claimed simultaneously and
not necessarily in the alternative. We may at this stage refer to a few pronouncements to illustrate
that the duty to care and the nature of care expected of any person accused of committing an offence
under Section 304A IPC has always been seen in the fact situations in which the question arose. In
Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mah. L.J. 423 (SC) this Court was dealing
with a case where the regulations framed by the Commissioner of Police, under the Bombay Police
Act, required the driver of car to look ahead and see whether there was any pedestrian in the
crossing and if there was one to wait till he crossed the carriage way. The accused in that case had
failed to take care and do that, resulting in the death of a pedestrian who was crossing the road. The
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question that fell for consideration was whether the driver was rash or negligent. This Court held
that since the speed limit was 35 miles per hour, and since the accused was driving the car at 35
miles an hour, there was no rashness on his part in the absence of any other circumstance showing
that he was driving at a reckless speed. Even so the charge of negligence was held proved against the
accused as he had breached the duty cast upon him to see whether there was any pedestrian to the
pedestrian crossing. Law, observed this Court, enjoined upon him and ordinary human prudence
required him to do so. Failure of the accused to exercise that reasonable care and caution rendered
him liable in criminal law to a conviction under Section 304A of the IPC. This Court approved the
ratio of the decisions in Idu Beg and Nidamarti cases (supra), that distinguished rashness and
negligence, and held that while rashness implies recklessness or indifference to consequences,
negligence arises from neglect of a civic duty of circumspection, which having regard to all the
circumstances out of which the charge has arisen, it was the imperative duty of the accused person
to have adopted. Rashness, observed this Court, was undoubtedly a graver offence.
104. In Bhalchandra @ Bapu and Anr. v. State of Maharashtra, 1968 (3) SCR 766, this Court was
dealing with a case in which an explosion in a factory manufacturing crackers had caused the death
of some of the workers and injured others. The findings recorded by the Courts below was that the
accused had in their possession unauthorized explosives in contravention of the Act and the Rules
and had committed several breaches of those Rules and the conditions of the license issued to them.
Relying upon the decisions of this Court in Kurban Husseins case (supra) and Suleman Rahiman
Mulanis case (supra), it was contended that mere violation of Rules or terms of a licence would not
make the accused liable for any punitive action against them. The decisions of this Court in Kurban
Husseins and Suleman Rahiman Mulanis cases (supra) were distinguished by this Court and the
conviction of the accused under Section 304A IPC upheld in the following words:
...The facts of the present case are somewhat different and distinguishable from
those of the above two cases as will be clear from a close examination of the material
evidence relating to the substances which were being used in the manufacture of the
fire works etc. in the factory of the appellants...
xx xx xx Although there was no direct evidence of the immediate cause of the
explosion but indisputably the explosives the possession of which was prohibited
under the notifications issued under the Act were found in the shops or the premises
where the appellants carried on their business and the substances that have been
mentioned which were of a highly hazardous and dangerous nature were apparently
being used in the manufacture of the fire works since they were found at the scene of
the explosion, (vide the evidence mentioned before and the finding of the trial court
and the Additional Sessions Judge). As stated by Dindeshchandra PW 10 these
explosives had sensitive compositions and even friction or percussion could cause
explosion. It is further proved that in the factory itself where the explosion took place
the persons who were employed were mostly women who brought their small
children with them and young children below the age of 18 had been employed in the
manufacture of the fire works etc. The factory was situate in close proximity to
residential quarters. It became therefore all the more incumbent on the appellants to
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have completely avoided the use of highly sensitive compositions of the nature
mentioned above.
The decision which is apposite to the present case is the one recently delivered by this
Court on April 3, 1968 in Rustom Sherior Irani v. State of Maharashtra. There the
chimney of a bakery had collapsed and 11 persons were killed and certain persons
were injured. The appellant had submitted no plan for the alteration of the chimney
for the third time and had asked just a mason to remove the iron pipe which had
corroded and to bring the height of the chimney to 65 feet. The mason had told him
that while the work was being executed it was unnecessary to completely keep the
bakery closed except during the period the repair work was being done. After the
chimney fell down a number of officers visited the spot and inspected the bakery. The
Chief Inspector of Boilers was of the opinion that the cause of the collapse of the
chimney was the explosion which occurred in it because of the products of
combustion and gases not being permitted to escape freely as a pipe of 6 inches
diameter had been put instead of 12 inches diameter. It is unnecessary to refer to the
detailed discussion of the evidence. It was established that the construction of the
new chimney had been done without the advice of a properly qualified person. The
argument raised was on the lines similar to the one which had been advanced in
Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra. It was
maintained that no negligence on the part of the appellant had been established and
it was on account of the negligence of the mason that the chimney had fallen down.
This Court was of the view that the proximate and efficient cause of the deaths was
the negligence of the appellant in choosing a pipe of 6 inches diameter and asking a
mason (who was apparently not a qualified person) to carry out the alterations and
also continuing working atleast one oven there during the period while the
alterations to the chimney were being made.
105. This Court referred with approval to Queen Empress v. Bhutan ILR XVI All. 472 and
Kamr-ud-din v. King Emperor 1905 PR 22(Cr) and English decisions in Regina v. David Dant, 169
English Reports (C.C.) 1517 and Rex. v. Pittwood (1902) 19 TLR 37 to hold that criminal negligence
can be found on varying sets of circumstances, and that the tests applied in the said cases including
the list of direct or efficient cause was fully applicable to the case at hand. It is noteworthy that in
Rex. v. Pittwood (supra), the prisoner was charged with manslaughter on the ground that he had
been negligent in not closing a gate when a train passed which it was his duty to do with the result
that White who was in a hay cart was killed while the cart was struck by the train which came when
it was crossing the line. The Court had in that case, held the prisoner liable as it was his duty to keep
the gate shut to protect the public against an oncoming train. This act of misfeasance was held to
constitute gross negligence in the discharge of his duty towards the public crossing the road,
amounting to an offence of manslaughter.
106. In S.N. Hussains case (supra), this Court was dealing with an R.T.C. bus that met with an
accident at a manned railway level crossing which was in the charge of a gateman whose duty it was
to close the gate when the train was expected to pass by. When the bus reached the level crossing the
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gate was open. The accused- bus driver finding the gate open crossed the meter gauge track when
suddenly a goods train dashed against the bus on the rear side with the result that the bus was
thrown off course causing serious injuries to several passengers, one of whom was killed in the
accident. The appellants defense was that he was neither rash nor negligent and the accident was
unavoidable for he did not realize that a goods train was passing at the time and since the gate was
open he crossed the railway crossing absolutely oblivious of the fact that a train was approaching.
107. The Trial Court accepted that explanation and acquitted the accused. The High Court reversed
the order and convicted him. This Court relying upon the definition of criminal rashness and
criminal negligence given by Straight J. in Empress v. Idu beg (supra) and in Bhalchandra Waman
Pathe v. State of Maharashtra (supra) held that where a railway level crossing was unmanned, it may
be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train
is approaching and thereafter drive the vehicle after satisfying that there was no danger in crossing
the railway track. Where the level crossing was protected by a gateman and the gateman opens out
the gate inviting the vehicles to pass, it will be too much to expect the driver to stop his vehicle and
look out for any approaching train. The Court accordingly acquitted the appellant of the offence
punishable under Section 304A IPC.
108. A conspectus of the decisions quoted above reveals that an offence under Section 304A IPC
may arise under a variety of circumstances, ranging from reckless driving of vehicles to negligent
handling of explosives in a factory. In every case, this Court has been mindful to determine the
nature of care which ought to have been exercised by the accused person in the context of all the
facts and circumstances of that case. Moreover, this Court has been careful while applying or
distinguishing preceding case law relating to Section 304A to read each case in the context of its own
facts, without deriving from it any general propositions to be applied in all cases dealing with the
same offence. Therefore, the question of the nature of care which ought to have been exercised by
the occupiers of Uphaar Cinema, as ordinary prudent businessmen, must be decided solely on the
totality of the facts and circumstances of the present case