absence of clearly discernable duty of care and the magnitude of foreseeable damage

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)
184. Coming then to the acquittal of S.S. Sharma (A-13) and N.D. Tiwari (A14), Administrative Officers, MCD, the charges framed against the said two accused persons were for
offences punishable under Section 304A, 337 and 338 read with Section 36 IPC. The allegation
levelled against them was that they negligently issued No Objection certificates to Uphaar Cinema in
the years 1995-96 and 1996-97 without so much as conducting inspections of the premises, and
thereby committed a breach of the Cinematograph Act and the Rules made thereunder. The Trial
Court found that charge established and accordingly convicted and sentenced both the accused
persons to undergo imprisonment for a period of two years and a fine of Rs.5,000/- for the offence
punishable under Section 304A, six months for the offence punishable under Section 337 and two
years under Section 338 of the Code. The High Court has in appeal reversed the conviction and the
sentences awarded to the accused persons on the reasoning that it summed up in the following
words:
13.6 The prosecution, in order to succeed in its charge of accused Mr. S.S. Sharma
and Mr. N.D. Tiwari having acted with criminal negligence and caused death and
serious injury, should have first established the duty of care either through some
enacted law like DCR, 1953 or DCR, 1981 or a general duty discernable in their
normal course of official functions. In addition, the prosecution should have
established breach of such duty would have resulted in a foreseeable damage and
death to or in grievous injury to several persons. Unlike in the case of the Fire
Department, the Licensing Department or the Electrical Inspectorate, all of whom are
named authorities empowered to inspect the premises, there is no role assigned to
Administrative Officers of the MCD. The rationale for obtaining 'no objections' from
these officers has been left unexplained. The prosecution has failed to establish the
necessity for such No Objection Certificate and how without such document, by the
Administrative Officers of MCD, the licensing authority, DCP (Licensing) would not
have issued the temporary permit. Ex. 22/A, the letter by the licensing department is
in fact addressed to the Building department, MCD.
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Indian Kanoon - http://indiankanoon.org/doc/9513811/ 77
xx xx xx 13.8 The materials on record nowhere disclose how, even if it were assumed
that Mr. S.S. Sharma and Mr. N.D. Tiwari breached their duties of care, the breach
was of such magnitude as would have inevitably led to death or grievous injury to
several persons and that such consequence was reasonably foreseeable by them when
they issued No Objection Certificates. No doubt, the issuance of No Objection
Certificates and handing them over to the beneficiary directly was a careless, even
callous act. It was also used to be placed on the record as a prelude to the issuance of
the permits. But in the absence of clearly discernable duty of care and the magnitude
of foreseeable damage by these accused, this Court cannot affirm the findings of the
Trial Court and their conviction.
13.9 The appeals of Mr. S.S. Sharma and Mr. N.D. Tiwari are, therefore, entitled to
succeed. (emphasis supplied)
185. There was no serious argument advanced by either Mr. Salve, appearing for the CBI or Mr.
Tulsi for assailing the correctness of the view taken by the High Court in appeal and rightly so
because the High Court has, in our opinion, taken a fairly reasonable view which is in tune with the
evidence on record. There is, in our opinion, no room for our interference even with this part of the
order passed by the High Court by which it acquitted S.S. Sharma and N.D. Tiwari, Administrative
Officers of the MCD. Our answer to Question No.II is in the affirmative.