Good faith - IPC 79 Vs Negligence
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)
128. Mr. Tulsi on the contrary argued that reliance upon Section 79 of the IPC and the decision of
this Court in Raj Kapoors case (supra) misplaced. He urged that immunity from penal action under
the provisions of Section 79 of the IPC was founded on good faith which was totally absent in the
case at hand where the occupiers of the cinema and even those who were instrumental in the grant
and renewal of the licence and no objections were accused and even convicted by the Courts below.
There was, therefore, no question of the appellants taking shelter under the licence, the terms
whereof were in any case breached by them to the misfortune of those who lost their lives in the
incident.
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129. Section 79 of the IPC may, at this stage, be extracted:
1 Section 79. Act done by a person justified, or by mistake of fact believing himself justified, by law -
Nothing is an offence which is done by any person who is justified by law, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by
law, in doing it.
130. A reading of the above shows that nothing would constitute an offence under the IPC if the act
done is:
i) Justified in law,
ii) The act is done by a person who by reason of a mistake of fact in good faith
believes himself to be justified by law in doing it.
131. In the case at hand the defence relies upon the latter of the two situations, in which the benefit
of penal immunity will flow if (a) the person doing the act is acting under a mistake of fact and (b)
the person doing the act in good faith believes himself to be justified by law in doing it. The
expression good faith is defined in Section 52 of the IPC as under:
52. Good faith.-- Nothing is said to be done or believed in good faith which is
done or believed without due care and attention.
132. In order that Ansal brothers, occupiers of the cinema could claim the benefit of Section 79, they
were required to prove that the belief which they harboured about their act being justified in law was
in good faith. The use of expression good faith necessarily brings in the question whether the
person concerned had acted with due care and caution. If they had not, part (b) of Section 79 would
have no application to the case.
133. The duty to care for the safety of the patrons, we have explained in the earlier part, was cast
upon the Ansal brothers occupiers of the cinema both in common law as also in terms of statutory
provisions on the subject. We have also held that the evidence adduced at the trial and the
concurrent findings recorded by the Courts below, have, established the breach of that duty in
several respects. For instance absence of any Public Address System to warn those inside the cinema
in the event of any emergency was in the facts and circumstances of the case a part of the duty to
care which was breached by the occupiers. This duty was a continuing obligation and had to be
strictly discharged in respect of each cinema show conducted in the theatre. The grant of a licence or
its renewal by the licensing authority did not in any manner relieve the occupiers of that obligation
which was implicit even in the grant and the renewals thereof. Similarly, the requirement that the
cinema must have emergency lights, fire extinguishers and that the occupiers must provide help to
the patrons in the event of any emergency ensuring rapid dispersal from the enclosed area were
obligations that too were implicit in the issue and renewal of the cinematograph licence. Breach of
all these obligations could not be justified on the ground that a licence was granted or renewed in
favour of the occupiers, licensee and no matter the duty to care towards safety of the patrons was
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neglected by the theatre owners or occupiers. Failures in the event of a mishap like the one at hand
on account of failure of the occupiers to discharge their legal obligations to take care for the safety of
the patrons cannot be held to be immune from prosecution simply because a licence to exhibit the
films had been granted or renewed from time to time.
134. The argument that the seating arrangement in the balcony, the placement of the gangways, the
number and the positioning of the exits, were matters which were examined and approved by the
concerned authority, thereby entitling the occupiers to a bona fide and good faith belief that they
were on the right side of law, no doubt looks attractive on first blush but does not stand closer
scrutiny. The essence of Section 79 is a belief entertained in good faith about the legitimacy of what
is being done by the person concerned. Absence of good faith is enough to deny to him the benefit
that he claims. Good faith has in turn to be proved by reference to the attendant circumstances. That
is because good faith is a state of mind which can be inferred only from the circumstances
surrounding the act in question. The test of ordinary prudence applied to such proved attendant
circumstances can help the Court determine whether an act or omission was in good faith or
otherwise. Having said that, we would simply recall our findings recorded earlier that the
fundamental obligation and duty to care at all times rested with the occupiers of the cinema and the
licensee thereof. In the discharge of that duty the occupiers were not entitled to argue that so long as
there was a license in their favour, they would not be accountable for the loss of life or limb of
anyone qua whom the occupiers owed that duty. The duty to care for the safety of the patrons, even
independent of the statutory additions made to the same, required the occupiers to take all such
steps and measures, as would have ensured quick dispersal from the cinema building of all the
patrons inside the premises in the event of an emergency. The statutory requirements were, in that
sense, only additional safeguards which in no way mitigated the common law duty to care, the
degree of such care or the manner in which the same was to be discharged.
135. That apart, a seating plan, which was in breach of the statutory provisions and compromised
the safety requirements prescribed under the DCR 1953, could hardly support a belief in good faith
that exhibition of films with such a plan was legally justified. That is so especially when the repeal of
notification dated 30th September, 1976 by which Uphaar was permitted 100 more seats was
followed by a demand for removal of the additional seats. Instead of doing so the occupiers/owners
assailed that demand in Writ Petition No.1010 of 1979 before the High Court of Delhi in which the
High Court directed the authorities to have a fresh look from the stand point of substantial
compliance of the provisions of the Cinematograph Act. The High Court observed:
11. Proposition No. 3: It has been already made clear above that the relaxation was
granted after considering the public health and the fire hazard aspects. It is also clear
that the very fact that the relaxation could not be granted after bearing these main
considerations in mind would show that there was some rule for the extension of the
sitting accommodation in these theatres within the Rules, though the provision of
some of the additional seats may perhaps have been to some extent contrary to some
of the Rules. It is not necessary for us to speculate on this question. It is enough to
say that the result of the cancellation of the relaxation is simply the withdrawal of the
relaxation. It does not automatically mean that all the additional seats which were
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installed in the cinema theatres were contrary to the Rules and must, therefore, be
dismantled without any consideration as to how many of these seats were in
consonance with the Rules and how many of them were contrary to the Rules.
12. Our finding on proposition No. 3 is, therefore, that the Administration will apply
their mind to the additional seats with a view to determine which of them have
contravened which rules and to what extent. They will bear in mind that the
compliance with the Rules is to be substantial and not rigid and inflexible.