Calcutta High Court (Appellete Side)
Dr. Mani Kumar Chhetri vs State Of West Bengal on 30 June, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT :
THE HON'BLE JUSTICE JOYMALYA BAGCHI
C.R.R. 1918 OF 2016
DR. MANI KUMAR CHHETRI
. . . PETITIONER
VERSUS
STATE OF WEST BENGAL
. . . OPPOSITE PARTY
Mr. Samaraditya Pal, learned Senior Advocate
Mr.Somopriyo Chowdhury
Mr.Deepan Kumar Sarkar
Mr. Avishek Bhandari
. . . For The Petitioner
Mr. Saswata Gopal Mukherjee, learned P.P.,
Mr. Ayan Bose
Mrs. Anasuya Sinha
. . . For The State
Mr. Sanjay Banerjee
. . . For The Intervener-Paromita Guha Thakurta
Heard On : 23.8.2016, 9.9.2016, 16.9.2016, 29.9.2016, 3.11.2016,
4.11.2016, 1.12.2016, 9.12.2016, 15.12.2016, 6.1.2017,
12.1.2017, 17.1.2017, 10.2.2017, 16.3.2017, 6.4.2017,
20.4.2017, 2.5.2017, 11.5.2017 & 18.5.2017.
Judgment On: 30th June, 2017.
Joymalya Bagchi, J.
The petition is directed against judgment and order dated 19th March, 2016, passed by learned Additional Sessions Judge, 3rd Court, Alipore, South 24 Parganas in S.C. 26(11)/2013 rejecting the prayer of the petitioner to discharge him from the instant case and framing charges under Sections 304 Part II, 308 read with Section 36 of the Indian Penal Code and under Section 11C read with Sections 11J, 11L of the West Bengal Fire and Emergency Services Act.
The petitioner along with fifteen other accused persons were prosecuted on the allegations of commission of offences punishable under Sections 304 Part II/308 read with Section 36 of I.P.C. and under Section 11C read with Sections 11J and 11L of West Bengal Fire Services Act on the allegations reflected in the charge-sheet is as follows:-
In the early hours of December 9, 2011 a big tragedy took place as the wintry morning was rend asunder by the helpless cries of patients trapped inside a premium hospital namely AMRI Hospitals Ltd situated at 15, Panchanantala Road. In the midst of the night, a fire suddenly broke out in the basement of the Annexe-I building, a G+5 storied structure. As the basement area remained ablaze, toxic smoke began to accumulate inside the building. This contributed to poor visibility and induced suffocation amongst those present on the premises, thus greatly restricting the movements of those trapped inside. Additionally, rescuers were prevented from having direct access to the hospital premises as the security staff stood guard at the main gates.
The incident was initially dealt with in a casual manner by the ill trained and poorly equipped staff of the hospital. Once the situation reached an aggravated stage, the Fire Brigade and the Police were informed. As news of the fire spread, locals began to assemble and assist the fire brigade and police in the ongoing rescue operation. The Fire Brigade personnel used sky ladders and broke several glass windows in the building in the course of the rescue. While some patients were brought out alive, dozens of dead bodies were also recovered. As per reports, 92 patients admitted in the Annexe-I building succumbed to death on the night of the fire. The patients who were successfully rescued were shifted to other hospitals.
Following the incident, an official filed a formal complaint on behalf of the Fire Brigade. Subsequent to the General Diary Entry No 765 of Lake Police Station dated 09.12.11, a case vide Lake PS Case No 293 dated 09.12.11 u/s 304/308/285/34 I.P.C. and 11C/11J/11L of West Bengal Fire Services Act was registered. The control of the investigation of the case was taken up by a Special Investigation Team of Detective Department, Lalbazar, Kolkata.
The dead bodies recovered were subjected to inquest followed by post mortem examination. The autopsy surgeon opined in his report that the cause of death was asphyxia followed by suffocation.
In the course of the investigation, a number of witnesses were examined and their statements were recorded. The surviving patients and the relatives of deceased patients narrated the incidents of the unfortunate night in their statements. The patients who managed to escape provided detailed accounts about how the smoke circulating in the building had caused irritation in their eyes. They also related how the lack of support from the AMRI staff and overall absence of an evacuation team worsened the situation. Several patients were infirm and/or bed-ridden and thereby compelled to inhale noxious smoke in their feeble condition. Even those who were mobile had to overcome various hurdles in order to escape the smoke. Kolkata Police and the Fire Brigade worked tirelessly to rescue those trapped inside the building. Local youths assisted them during the continuance of the rescue operation. The patients who survived mentioned that most doctors, nurses and other staffs had fled the premises and they did not receive assistance from the AMRI staff, albeit a few, during this predicament. Both patients and their relatives unanimously condemned the absence of an evacuation system. The lackadaisical attitude of the hospital authorities towards fire safety and the reluctance of the staff to help the patients in the time of need, paints a negative image of what is claimed to be an elite medical institution.
Investigation revealed that the fire had broken out in the intervening night of December 8, 2012 and December 9, 2012 in the basement of the Annexe-I building of AMRI Hospital. The fire was detected by some members of the staff of Frank Ross Pharmaceuticals and the mechanical store housed in the building, at about 3.25 am, after noticing smoke emanating from the surrounding areas. From the statements of these individuals, it is evident that the inferno had been observed on some inflammable materials stocked in the Frank Ross Pharmaceuticals store. Items including but not limited to cotton, gauge, rubber and plywood present in the area aggravated the fire resulting in the emission of dark fumes. These persons promptly informed the security staff about the fire. However, despite fervent efforts by the security personnel (under the supervision of the Night Administration) to control the situation by utilising the available fire extinguishers, they were unable to douse the flames. It is noteworthy that both the security personnel and the Night Administrator were ill equipped and untrained with reference to fire safety.
The investigation also revealed that a similar incident of fire had taken place on October 9, 2011 in the AMRI Diabetic Centre located at 38/1 Gariahat Road. During that incident, a security guard namely Haradhan Chakraborty had informed the Fire Brigade upon detecting the fire. For this prudent act, he was punished with temporary suspension for violation of Code Brown. Code Brown was the policy measure adopted by the AMRI management with regard to fire safety, wherein the staff had to endeavour to fight the fire by utilising the hospital's resources and contact the Fire Brigade and Police only upon failure to contain the fire. An Incident Report Register seized by the investigating officers reflects that there were 12 distinct incidents of fire in AMRI prior to the incident in question.
Various official agencies including but not limited to the ROC, KMC, Directorate of Electricity, CESC, Fire Brigade, FSL and CFSL were contacted during the investigation to gain insight into the dynamics of the case.
Information received from the Kolkata Municipal Corporation stated that the building plan of the Annexe-I building of AMRI received sanction in the year 1999. Construction of the building was completed in 2005, with the Completion Plan being sanctioned in 2006 with a fine being imposed for the deviations from the sanctioned plan. In the sanctioned plan, the upper basement was earmarked as the car parking space and hence it was not under the central air conditioning system of the hospital. Investigation indicated that the electrical shaft originated from the basement and circumvented the floors, reaching up to the top of the building. Investigation also brought to light that the basement had been converted to an area housing storerooms, a mechanical workshop, a pharmacy, the HR office, the security and CCTV office and a store for bio medicals. The stores in the basement area stocked various combustible materials. Additionally, the offices in the basement were constructed using plywood. The wooden walls and ceilings alongside vinyl floors of these offices acted as fuel to the fire. The F.I.R. indicated that the movement of the toxic smoke (which was the sole cause of death as per post mortem reports) to the wards was facilitated by the absence of fire stops in the electrical shafts. From the NOC of the West Bengal Fire and Essential Services seized during investigation, it is evident that the upper basement had been converted into office spaces in violation of repeated directives given by the Fire Brigade authorities on the point of fire safety, specifically the instructions pertaining to clearing the basement, alongside other suggested rectifications. In response, the representatives of AMRI Hospitals Ltd provided assurances of compliance by means of letters and affidavits several times. These affidavits formed the basis of the issuance of 4 NOCs dated June 30, 2005, March 12, 2008, January 11, 2010 and September 5, 2011.
The FSL report indicated that the basement area stocked huge amounts of combustible materials of the nature of wood, plywood, PVC and cotton which caused the accumulation of black, powdery charcoal like substance on the building premises and the bodies of deceased patients. This version was corroborated by the statements of various witnesses.
Non installation of fire stops continued in spite of directives recommending the same provided by the Fire Brigade in various NOCs. It has been argued that the deliberate violation of the KMC sanctioned building plan, disregard for direction of the Fire Brigade and submission of affidavits by AMRI officials when there was no intention to follow through, could only have been done at the clear and express instruction of the owners and/or directors who were the final decision makers in the management of the hospital. The seized documents exposed that the Board of Directors was aware of the upkeep measures suggested by the Fire Brigade and the directors also engaged in discussions about fire safety issues in the course of various board meetings. In spite of this, no directions were issued by the Board regarding the installation of fire stops which is one of the basic safety norms to be observed for curbing the effect of fires. This demonstrates that the owners and/or directors did not attribute much importance to observance of fire safety precautions.
In 2007, the AMRI management contemplated acquiring NABH accreditation and the services of the Institute of Applied Quality Management were engaged to ensure that the hospital was in compliance with the directives and guidelines of NABH in all respects including but not limited to fire safety matters. With the assistance of IAQM, AMRI received accreditation from NABH in 2008. It has been noted that the enthusiasm about compliance with NABH standards began to falter in the post accreditation period during which the services of the compliance consultant and incumbent fire officer were terminated. In 2009, a part time fire officer was appointed, however the officer reported only twice a week for limited hours. Fire training and evacuation sessions, mandated under NABH guidelines were irregular and generally suffered from poor attendance. In 2011, to achieve reaccreditation from NABH, a professional was employed. In September 2011, however, the NABH did not provide accreditation to AMRI due to two non- compliance with respect to fire safety and evacuation. In order to salvage the situation, AMRI submitted an evacuation plan but did not sufficiently train the staff about the execution of the plan. The AMRI management neither employed a full time fire officer nor had a trained evacuation team in the hospital premises. The non-compliance in the aforementioned respects resulted in compromise with the safety of patients.
Numerous documents and computer resources were seized by the investigating officers and some of the seized items were sent to CFSL and FSL, Kolkata for examination purposes.
The minutes of various board meetings which had been taking place since 2004, vide CFSL report dated January 25, 2012 show that the minutes of all the Management Committee meetings in AMRI were sent to Board Members and further used as agenda for board meetings. This is indicative of awareness on the part of the directors about the internal management of the hospital. Mere absence of some directors from some meetings does not absolve them from their responsibilities since the minutes of such meetings were also forwarded to board members through email.
The FSL report indicated that the fire started either from the illegally installed stand-alone ACs in the upper basement or from an external object. It is further indicated that the fire spread unnoticed for a considerable period of time due to the presence of cotton or similarly combustible items in the vicinity. Investigation has revealed that the hospital store and the Frank Ross pharmacy in the upper basement both contained huge quantities of cotton, gauze and blankets. Owing to the location of the record room of the hospital within the confines of the basement area, rims of paper were also stored in the same area. From the pattern of decisions taken in board meetings, it is reasonable to proceed on the assumption that such decisions regarding the determination of the location of stores or maintenance of storage were outside the scope of authority of junior employees and were taken in board meetings and/or Managing Committee meetings attended by directors and senior officials.
Witness statements illustrate that all board members were actively involved in the day-to-day decision making of the hospital. The board members communicated with each other and the staff by means of mails, personal meetings and verbal orders. The board of directors comprised of promoter groups, Srachi and Emami represented by the families of S.K. Todi, R.S. Agrawal, R.S. Goenka and doctors namely Dr. Mani Kumar Chhetri, Dr. Pranab Dasgupta and Dr. S. Tibriwal. It has also been pointed out that AMRI Hospitals Ltd had an ongoing agreement with the State Health Department. Under this agreement, as a Public Partnership Project, AMRI Hospitals Ltd was required to pay rent, provide free treatment to some sections of patients and include some Government nominees in the Board of Directors. With the passage of time however the presence of the Government nominated members in the Board was rendered redundant as they were made to be present in meetings only as a nominal member, with no real involvement in any decision making. The diminishing share of the Government in the share capital of AMRI and the lack of governmental guidelines regarding day-to-day management were noted as possible reasons for this restricted role of the nominees.
Investigation further revealed that in spite of the West Bengal Fire Safety Act mandating the presence of a fire officer in the hospital throughout the day (24 hours), no full time officer was appointed. This decision is indicative of efforts by the owners/directors/senior officers towards minimising expenditure at the expense of safety of the patients.
The decision to designate Preeta Banerjee as the person in-charge of overall administration and Sajid Hussain as the sole in-charge of the hospital buildings (accommodating not less than 300 patients at any point of time) has been brought into question. As per the statements of witnesses, both individuals lacked familiarity with fire safety norms and the hospital's evacuation plan submitted in pursuance of NABH accreditation. It has been mentioned that decisions regarding recruitment of qualified and suitable personnel and providing proper mandate to them were in the realm of the directors. The suspension of employee, namely, Haradhan Chakraborty for informing the Fire Brigade on October 9, 2011 by Preeta Banerjee due to non-adherence to the established Code Brown is an instance of the wrong messages that the directors were allowing to be conveyed to the employees.
Despite accused person No. 09, Sanjib Pal (then Manager, Maintenance) submitting an undertaking by about AMRI taking effective measures to evacuate the basement within 90 days from the date of receiving NOC and informing the directors about such issues, no efforts were made to rectify the lapses. Investigation into the finances of AMRI Hospitals Ltd revealed that AMRI had an annual turnover worth several crores, much in excess of the amount required to undertake fire safety measures which could have prevented the loss of lives. The facts unravelled during investigation point towards the responsibility of the Board of Directors namely Shrawan Kumar Todi, Ravi Todi, Radheyshyam Goenka, Prashant Goenka, Manish Goenka, Dayanand Agarwal, Radheyshyam Agarwal, Dr. Mani Kumar Chhetri, Dr. Pranab Dasgupta, Rahul Todi, Preeti Surekha, Aditya Bardhan Agarwal in the administration and management of the AMRI Hospitals. As per the evidence collected by the investigators, both external authorities and internal officials had on several occasions alerted the AMRI management about the risk of fire in the hospital premises. Despite this, the accused persons (Board Members) along with Preeta Banerjee, Dr. S. Upadhaya, Sanjib Pal, and Sajjid Hussain had ignored all the suggestions and guidelines set forth, in favour of a cost cutting policy thereby compromising on the fire safety preparedness in the hospital. All the illegal omissions and conscious acts on the part of all the accused persons together ultimately culminated in the occurrence of a devastating fire which claimed the lives of 92 patients. In the above facts and circumstances, it has been argued that a prima facie case u/s 304/308/285/36 I.P.C., 11C/11J/11L W.B.F.S Act has been established against the accused persons namely (01) Shrawan Kr. Todi, (02) Ravi Todi, (03) Radheshyam Goenka, (04) Prasant Goenka, (05) Manish Goenka, (06) Dayanand Agarwal, (07) Radheshyam Agarwal, (12) Dr. Mani Kumar Chhetri and (13) Dr. Pranab Dasgupta and (14) Priti Surekha, (15) Rahul Todi to (16) Aditya Vardhan Agarwal and u/s 304/308/285/36 I.P.C. against accused Nos. (08) Satyabrata Upadhyay, (09) Sanjib Pal, (10) Preeta Banerjee, (11) Sajid Hussain, and they may be tried accordingly.
Upon completion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to learned Additional Sessions Judge, 3rd Court, Alipore, for trial and disposal. The petitioner and the other accused persons preferred applications for discharge and after extensive hearing the learned trial Judge by order dated 19th March, 2016, rejected their prayers and proceeded to frame charges against the petitioner and other accused persons under Sections 304 Part II/308 read with Section 36 of the Indian Penal Code and under Section 11C read with Sections 11J, 11L of the West Bengal Fire Services Act.
While the other accused persons chose to face trial, the petitioner has assailed the impugned order rejecting his prayer for discharge and framing charges against him, as aforesaid.
Learned senior counsel appearing for the petitioner argued that the impugned order refusing to discharge the petitioner is a non-speaking one and does not deal with all the issues raised by him before the trial court. He contended that the trial Judge erred in law in dealing with the case of the petitioner conjointly with the other accused persons and did not consider the special features highlighted in favour of the petitioner. He submitted that the petitioner is a nonagenarian and a reputed medical consultant of the city. In view of his high reputation as a medical practitioner, he had been requested to assume the charge of Managing Director of AMRI Hospitals Ltd. Accordingly, his role in the management of the hospital was restricted to medical matters and he did not play any role in the day-to-day management of the hospital. That apart, his role as Managing Director in the company was restricted only to laying down the policies with reference to medical affairs and not with regard to other affairs of the hospital. Specific managerial personnel were designated to look after the fire safety measures of the hospital. A fire officer had also been employed to take necessary steps in the matter of fire safety in the hospital. Further, the Board of the hospital was also manned by government nominees and hence mere membership in the Board of Directors and the fact that the petitioner was the Managing Director of the hospital does not give rise to any inference that the petitioner was responsible for all the affairs relating to the running of the hospital, including the fire safety measures in the said hospital. It has also been argued that from time to time fire licence of the hospital was duly renewed by the concerned department.
The senior counsel for the petitioner has put forth that the company, that is, AMRI Hospitals Ltd. owned the hospital and was primarily responsible for running the hospital which included maintenance of fire safety measures. The company has not been made an accused in this case. The senior counsel has argued that this renders the prosecution of the petitioner who is Managing Director of the company invalid in law particularly with regard to the provisions under the West Bengal Fire Services Act. He relied on various authorities in support of his contention.
In brief, the petitioner has assailed the order framing charge primarily on the following premises:-
Firstly, the alleged acts or illegal omissions cannot be directly attributed to him.
Secondly, offences under the Indian Penal Code do not involve vicarious liability, unlike special statutes like the Negotiable Instruments Act and Essential Commodities Act. The petitioner cannot be presumed to be in-charge of and responsible for the company merely by virtue his status as Managing Director of the company and, therefore, he cannot be held vicariously liable for the alleged offences under the Indian Penal Code. That apart, the company has not been made an accused in the instant case and prosecution of the petitioner is not maintainable without the company being made an accused particularly with regard to The West Bengal Fire Services Act. It is the argument of the senior counsel that none of the alleged acts and/or illegal omissions were personally committed by the petitioner so as to make him liable under the penal provisions under which charges have been framed against him.
Thirdly, it has been argued that the alleged unlawful acts and/or omissions do not have a direct and proximate nexus with the cause of death of patients which was due to asphyxia from the smoke emanating from the fire and the ingredients of the offence under Section 304A I.P.C. are not established.
Fourthly, framing of charges under Sections 304 Part II or 308 I.P.C. is wholly unjustified as the essential ingredient of a higher degree of certainty of knowledge as to likelihood of death as a consequence of rash and negligent act is patently absent in the facts of the case.
In reply, learned Public Prosecutor submitted that Dr. Mani Kumar Chhetri was not only Managing Director of the company which owned the hospital but was also a licensee of the hospital under the West Bengal Clinical Establishments Act, and was actively involved in the running of the day-to-day affairs of the hospital. It was contended that the petitioner had been inducted as Managing Director of AMRI Hospitals Ltd. in order to utilise his pre-eminence in the medical profession so as to give an assurance to the public as to the high quality of management and treatment available in the hospital. It has been argued that it is evident from the records seized in the course of investigation that the petitioner regularly attended Board meetings and actively participated in administrative issues and, in fact, had written a letter to the other directors (co-accused persons in the instant case) with regard to the change of logo of the hospital. Further the learned Public Prosecutor has averred that the role of the petitioner was not restricted only to medical affairs but he was actively involved in other administrative affairs of the hospital on a day-to-day basis. The petitioner had executed sub-lease relating to the illegal occupation of rent free space by Emami Frank Ross Limited, a pharmacy in the basement of the hospital. It is clear that the petitioner had knowingly permitted the illegal conversion of the basement areas (upper basement + lower basement) into office spaces and/or for storage of materials which were highly combustible. The petitioner was aware of the communication made by NABH coordinator, appointed by AMRI, Anusuya Bose with regard to the suggestions made for improving the fire safety measures required to regain NABH accreditation. None of these suggestions were implemented by the management of AMRI which included the petitioner. AMRI management including the petitioner were also aware of the non-compliance of the repeated directives issued by the Fire Department of the Government of West Bengal for removal of illegal construction in the basement of the Annexe-I building of AMRI, Dhakuria containing combustible materials and/or for implementing various upkeep measures relating to fire safety and/or training of personnel. Such directions have been given since 2005 and repeated on subsequent occasions in 2008 and 2010. One of such suggestions was to put fire stops in the electrical shafts of the hospital buildings which, however was not followed. On the other hand, with the active knowledge and connivance of the petitioner, affidavits were filed by AMRI officials assuring the Fire Department that the aforesaid corrective measures would be immediately put into place. From the conduct of the petitioner and the other accused persons it is evident that such affidavits were mere lip service to secure 'No Objection Certificate' from the concerned department and neither the management nor the employees had any intention to implement the measures. The management of the hospital, in order to protect its public image, instructed its officials particularly those in charge of and/or involved in fire safety measures to follow a policy, namely Code Brown wherein the AMRI staff was asked not to report any outbreak of fire in the hospital but to try to contain such fire through in-house mechanism. Such policy was implemented by the management with the singular purpose of protecting its public image by suppressing any incident of fire in the hospital which may deter potential patients from getting admitted in the said hospital. Such inherently dangerous practice exposed the fate of several infirm patients with little or no mobility to the certainty of death in the event of outbreak of fire prompted by delayed reporting of such incident to external fire service authorities. The Public Prosecutor has argued that this practice adopted by the management and the repeated outbreaks of fire which took place in the hospital prior to the unfortunate incident in question, clearly makes out a case of requisite knowledge in the minds of the petitioner and other accused persons who were actively involved in the administration of the hospital that their unlawful acts and illegal omissions were likely to cause death and, therefore, the prayer for discharge of the petitioner was rightly rejected in the factual matrix of the case.
Learned counsel, Sanjay Banerjee appearing for the intervener-Paromita Guha Thakurta, President of AMRI Fire Victim Association, adopted the submissions of the Public Prosecutor and submitted that no case of interference with charges framed against the petitioner has been made out. He further submitted that no prejudice is caused to the petitioner by the charges so framed against him.
Coming to the issue as to whether the petitioner can be said to be responsible for the alleged wrongful acts and/or illegal omissions resulting in the death of the victims, it is imperative to cull out from the materials on record the alleged incriminating acts and/or illegal omissions which, according to the prosecution, resulted in deaths in the hospital. From an analysis of the materials collected in the course of investigation, as reflected in the charge-sheet and in the accompanying documents, the following wrongful acts and/or illegal omissions appear to have been relied upon by the prosecution as having resulted in the death of the victims:-
i) The fire broke out in the upper basement area of the hospital. AMRI management including the petitioner had illegally converted the basement area into a pharmacy and office spaces containing combustible materials. Assurances by way of affidavits were furnished by the officials of AMRI to the Fire Department that the basement and ramp area would be cleared but no steps were taken in that respect. Such affidavits were furnished with the knowledge and connivance of the management including the petitioner. The illegal construction in the basement containing combustible materials rendered the detection and control of the fire difficult and exacerbated the spread of fire resulting in emission of copious amounts of smoke which filled the building.
ii) The building was a centrally air conditioned multi-storied structure where windows were sealed and driveways were blocked. The centrally air conditioned insulated structure with no passageway for escape of smoke resulted in accumulation of enormous amount of smoke which had generated due to the fire inside the building. There was no mechanical ventilation system and vertical openings at each floor were sealed in spite of directions given by the Fire Department to make such arrangement. Moreover, fire-fighting systems like auto damper system, smoke detection and alarm system failed to function. It is apposite to note that the Fire Department had repeatedly asked the management to ensure that the fire-fighting systems be kept in order but such reminders were not observed in the breach. In spite of specific directions to install fire stops in the electrical shafts, no steps were taken by the management and the smoke travelled unhindered through the shafts to the upper floors where the patients were sleeping. The air conditioning system continued to run forcing the smoke into the rooms resulting in asphyxial death of innumerable patients, most of whom were either immobile or unconscious due to their ailments. The deficiencies in the fire-
fighting system created an easy unhindered passage of smoke to the upper floors in the hospital and due to the absence of mechanical ventilation system and the completely insulated environs of a centrally air conditioned structure, the smoke was actively pumped into the rooms through the air conditioners which continued to operate resulting in devastating consequences. The deficiencies in the fire safety measures had been repeatedly brought to the notice of the petitioner and the other accused persons by the regulatory authorities but no steps had been taken to rectify such deficiencies in spite of assurances given by officials of the hospital that such remedial measures would be promptly undertaken.
iii) The staff manning the fire safety department were inadequately trained and directions to hold regular fire drills were not followed. A part-time fire officer was employed instead of a full-time personnel who was required to be present at all times in the hospital although incidents of fire had occurred in the hospital on a number of times in the past. Moreover, on the date of the incident, the fire officer was absent and the Night Administrator who was in charge of such measures had no knowledge whatsoever about how to deploy fire safety measures in the event of outbreak of fire.
iv) Code Brown, an inherently dangerous policy to deploy in-house fire safety mechanisms which were wholly inadequate and manned by ill trained personnel in preference to external fire-fighting services in the event of outbreak of fire, was adopted and strictly implemented at the risk of disciplinary action by the managers and/or officials in charge of the fire safety department of the hospital. This practice was within the knowledge of the Board including the petitioner and endorsed by them notwithstanding their knowledge as to deficiencies in the in-house fire-fighting measures and lack of training of the personnel handling such activity.
It has been argued that the aforesaid acts and/or illegal omissions cannot be attributed to the petitioner merely by virtue of his occupation of the position of Managing Director of the company at the time of occurrence. There is nothing to show that the petitioner was personally responsible for the acts and/or illegal omissions as alleged in the instant case resulting in the deaths of patients in the hospital.
A perusal of the aforesaid circumstances would clearly show that most of the circumstances, if not all, relate to gross inefficient management of the hospital particularly with regard to fire safety measures. There is no dispute that the petitioner who is a renowned medical consultant was made the Managing Director of the company owning the hospital as his pre-eminent presence in the management would lend assurance to the public as to the quality of services rendered to the patients in the hospital. License of the hospital under The West Bengal Clinical Establishments Act, 1950 had also been issued to the petitioner on behalf of the hospital. It has been strenuously argued that the petitioner being a specialised medical professional was not involved in the overall administration of the hospital particularly with respect to fire safety measures but was only concerned with treatment of the patients.
The uncontroverted materials on record, however, give rise to a contrary impression. The petitioner was not only involved in the treatment of patients in the hospital but had actively participated in the Board meetings relating to the general affairs of the hospital. He was also a member of the Managing Committee entrusted with the supervision of the day-to-day affairs of hospital. In fact, the extent of involvement of the petitioner in the administrative affairs of the hospital would be evident from the fact that he showed engaging interest even in the matter of change of logo of the hospital which does not have any direct nexus with treatment of patients therein. The Board of Directors including the petitioner as its Managing Director was involved in the overall supervision of the hospital and he was acutely aware of the deficiencies in the fire safety measures in AMRI and the repeated instructions issued by the Fire Department of the Government of West Bengal as well as the NABH consultant with regard to rectifications and/or improvement to be made in the fire safety measures of the hospital including to the training of personnel manning the system.
It has also come on record that the directors, the petitioner being one of them, were consulted by accused Sanjib Pal at the time of filing of the affidavits, repeatedly assuring the Fire Department that the rectifications and/or upkeep measures as instructed by them while granting 'No Objection Certificate' to the hospital would be promptly undertaken. The petitioner was, therefore, fully aware as to the gross unpreparedness of the hospital to tackle an incident of fire and also the fact that illegal constructions and/or conversions made in the basement of the hospital with combustible materials like plywood with his consent and connivance would greatly exacerbate the spread of conflagration and damage in the event of an outbreak of fire.
The petitioner was also conscious of the fact that the necessary precautionary measure of installation of fire stops in the electrical shafts of the hospital had not been taken notwithstanding instruction to do so since 2008 and that the affidavits and the assurances held out by the officials of the hospital to the Fire Department were observed in the breach and not in true earnestness. The lack of earnestness in complying with the undertakings given by the officials of the hospital to the regulatory authorities is not only evident from the non- implementation of such directives but also from the fact that accused Sanjib Pal, in charge of the fire safety department, had instructed the employees of the hospital that in the event of a fire, they were required to follow a procedure, namely, 'Code Brown', that is, to deploy in-house facilities to contain the fire and not to immediately inform fire services authorities for support and succour.
In fact, such decision was strictly implemented by accused Preeta Banerjee, who was in charge of overall administration, by suspending an employee, Haradhan Chakraborty, as he had, in breach of such policy contacted the Fire Services Department prior to resorting to efforts of in-house containment of fire. This inherently dangerous procedure was condoned and not objected to by the petitioner and other board members although they were aware of the pitiable and appallingly ill equipped in-house fire safety measures available in the hospital and the gross unpreparedness and lack of training of the personnel manning the said department. Evidently, the petitioner played an active role in the supervision of the management of the hospital including the fire safety measures undertaken therein. He grossly derelicted such supervisory role in failing to ensure prompt steps for removal of illegal constructions in the basement, rectifying the deficiencies in the fire safety measures and/or undertaking regular fire safety training of the personnel of the hospital as repeatedly directed by the regulatory agency. He did not raise any objection to the inherently dangerous policy of containing fire through inefficient and inadequate in-house mechanism instead of promptly availing the services of external fire service agencies for reasons of revenue aggrandisement in preference to premises safety in the hospital.
Gross negligence of the petitioner in the matter of supervision of the affairs of the company is, therefore, evident in the facts of the case. Managing Director of a company by virtue of an arrangement between himself and the company is entrusted with substantial powers of management. The petitioner was a member of the Managing Committee entrusted with the task of supervising of the day-to- day affairs of the hospital and reporting relevant matters to the Board. The liability of a director vis-à-vis the affairs of a company is dependent upon the extent and depth of his involvement in the management and the requisite knowledge he has with regard to its affairs. He cannot turn a blind eye to what is evident to an ordinary person who acquires similar knowledge as to the affairs of the company. If he does so, he commits dereliction of duty in the management of the company making him personally liable for any loss or injury caused thereby by any person. In Official Liquidator, Supreme Bank Ltd. vs. P.A. Tendolkar (Dead) by Lrs. & Ors.,1 the Supreme Court held as follows:-
"41. It is certainly a question of fact, to be determined upon the evidence in each case, whether a Director, alleged to be liable for misfeasance, had acted reasonably as well as honestly and with due diligence, so that he could not be held liable for conniving at fraud and misappropriation which takes place. A Director may be shown to be so placed and to have been so closely and so long associated personally with the management of the Company that he will be deemed to be not merely cognizant of but liable for fraud in the conduct of the business of a Company even though no specific act of dishonesty is proved against him personally. He cannot shut his eyes to what must be obvious to everyone who examines the affairs of the Company even superficially. If he does so he could be held liable for dereliction of duties undertaken by him and compelled to make good the losses incurred by the Company due to his neglect even if he is not shown to be guilty of participating in the commission of fraud. It is enough if his negligence is 1 (1973) 1 SCC 602.
of such a character as to enable frauds to be committed and losses thereby incurred by the Company."
Role of the petitioner as Managing Director of the company running the hospital is, therefore, to be judged in the light of his experience and knowledge of the primary activity of the institution, namely, to take due care and undertake treatment of patients. The petitioner is a qualified medical practitioner who was deeply associated with the hospital from its inception. He was fully conscious that the premises safety of the hospital was in the nature of a non-negotiable necessity to ensure the safety and security of patients. In view of his involvement in the affairs of the hospital as Managing Director, who was also a member of the Managing Committee, supervising the day-to-day affairs of the hospital on behalf of the Board and regularly attending its meetings, he was actively aware of the glaring deficiencies in fire safety measures of the hospital endangering patient safety. Any reasonable professional similarly placed as the petitioner would have taken immediate remedial measures to ensure patient safety which the petitioner failed to do. Role of the petitioner as Managing Director when judged from such angle would clearly divulge a case of gross negligence in his discharge of duty to supervise fire safety measures which resulted in the death of numerous patients. Complicity of the petitioner is not founded on the principles of vicarious liability which are inapplicable to offences under Indian Penal Code [See Maksud Saiyed vs. State of Gujarat & Ors.,2 and S. K. Alagh vs. State of Uttar Pradesh & Ors.3] but is based on his dereliction of duty to ensure adequate premises safety and fire safety measures in the hospital resulting in the death of the patients in the hospital. It is pertinent to note that the prosecution has not relied on principle of vicarious liability to implicate the petitioner but has relied on the fact that the petitioner being aware of the various deficiencies in the fire safety measures and other aberrations in the hospital failed to rectify them in discharge of his supervisory role of day-to-day affairs of the company as Managing Director causing death of numerous patients. Hence, the plea that the prosecution against 2 (2008) 5 SCC 668 (Paragraph-13).
the petitioner is to be quashed due to non-joinder of the company as an accused is clearly misconceived.
Although the theory of attribution or alter ego has been incorporated in our penal jurisprudence permitting the prosecution of companies for offences involving mens rea like cheating by attributing the mens rea of its directors as that of the company (see Iridium India Telecom Ltd. vs. Motorola Inc4), there is no judicial authority nor any legislation in our country imposing penal liability on companies for murder or culpable homicide or death by rash and negligent act though in the present day, companies play a major role in various activities including healthcare wherein death may be caused due to their wrongful acts.
It may be apposite to note that in United Kingdom a legislation, namely, The Corporate Manslaughter and Corporate Homicide Act 2007 has been enacted to hold companies accountable for the failures of senior management resulting in death of persons. However, in the absence of any legislation in India making a company culpable for death by rash and negligent act, the question of making the directors and/or officers of the company vicariously liable for such act cannot arise and their penal liability is to be examined under the various provisions of the Indian Penal Code. In this perspective, the plea of non-joinder of the company as an accused is rendered irrelevant to the validity of the prosecution of the petitioner and other accused persons in the instant case.
The ratio in Sharad Kumar Sanghi vs. Sangita Rane,5 wherein the prosecution for the offence of cheating was quashed against the Managing Director for non-joinder of the company as an accused, is factually distinguishable from the present case. While the petitioner and other accused persons in the instant case are being prosecuted for their rash and negligent acts in failing to ensure premise safety in the hospital resulting in death of patients, in Sanghi (supra) there was no averment in the petition of complaint as to the 3 (2008) 5 SCC 662 (Paragraph-20).
4 (2011)1 SCC 74.
5 (2015) 12 SCC 781.
culpable role of the Director of the company in the transaction wherein the company had failed to pay price of the vehicle purchased by it.
Unlike offences under special statutes where a Director or Managing Director of a company by way of legal fiction is made responsible for the day to day affairs of the company, the culpability of managerial personnel vis-à-vis offences under the Indian Penal Code is to be judged as to the nature and extent of their specific role in the affairs of the company and their participation in and knowledge of the offence itself. Knowledge of deficiencies in the matter of fire safety measures in the hospital and unpreparedness of the personnel manning the same and the failure on the part of the petitioner to remove such deficiencies in spite of being in supervisory control of the affairs of the company as Managing Director leaves no doubt in one's mind that he is prima facie responsible for gross negligence in ensuring efficient and effective fire safety measures in the hospital but for which deaths of innumerable patients would not have occurred.
Moreover, the prosecution has sought to implicate the petitioner for the cumulative effect of the acts and/or illegal omissions of all the accused persons by virtue of Section 36 I.P.C.
For a better understanding of the issue of constructive liability of the accused persons in the instant case, reference to Section 35 I.P.C. in addition to Section 36 I.P.C. is necessary.
Sections 35 and 36 of I.P.C. read as follows:-
"S. 35. When such an act is criminal by reason of its being done with a criminal knowledge or intention--
Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.
S. 36. Effect caused partly by act and partly by omission--Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence."
The aforesaid provisions create a legal foundation for constructive liability where an act or illegal omission is committed by several persons with the requisite culpable intention or knowledge or when the acts and/or omissions taken as a whole create an effect which constitute an offence. In cases where an act or illegal omission is committed by several persons with the requisite intention or knowledge which renders it culpable, each individual shall be personally liable for the entire act or illegal omission taken as a whole. Additionally, when the culpable effect is created partly by an act and partly by an omission it shall be understood that they collectively constitute the culpable effect, that is, the offence. The petitioner and other accused persons who were playing a role in the management of the company and were responsible for ensuring the premises safety for the patients can, by reference to the aforesaid statutory provisions of constructive liability, be held personally responsible for the various acts of illegal omissions as a whole, irrespective of the extent of their participation in the said acts or illegal omissions, as they shared common knowledge that they were acting in a reckless and grossly negligent manner without due care to the safety of others rendering their acts and/or omissions culpable. For the aforesaid reasons, it can prima facie be said that the petitioner is constructively liable for the rash and negligent acts of all the accused persons as if they had been committed by him alone resulting in the death of the victims.
The next issue which has been argued on behalf of the petitioner, is that, there is no direct nexus between the causation of death and the alleged wrongful acts and illegal omissions committed by the accused persons including the petitioner. In the instant case, ninety-two lives of patients who were admitted in the hospital were lost due to a devastating fire which broke out in the basement of the hospital on the fateful night. The inadequacy of fire safety measures including lack of trained personnel was in the knowledge of the management of the hospital including the petitioner and in spite thereof they permitted a dangerous in-house policy of containment of fire, namely, Code Brown to be implemented and it is reported that any deviation from the said practice was even sternly dealt with by disciplinary action against the concerned erring official. Not only that, repeated directives for improvement of fire safety measures by the concerned authorities were not acted upon. Illegal conversion of the basement area into shops, offices and storage spaces containing inflammable substances enabled the fire to spread rapidly and the smoke from the fire rose through the electrical shafts which did not have the requisite fire stops to prevent the flow of smoke to the upper floors where the patients were asleep. The smoke billowed into the rooms of the upper floors, being aided by the air-conditioning system, resulting in asphyxial death of innumerable sick and unconscious patients. A number of the fire safety systems like sprinklers and smoke detectors failed to function. Night Administrator who was in charge, in the absence of the fire officer, was wholly untrained to deal with such devastating fire. It is in the light of these circumstances, the argument that mere illegal conversion of basement or failure to provide fire stops and other fire safety measures in the hospital were not the direct and proximate cause of death has to be considered.
From the materials on record, it appears that the petitioner and other accused persons being responsible for the supervision of the affairs of the hospital including its fire safety measures acted in a rash and negligent manner in failing to maintain the standard of fire safety which was expected of them in the facts and circumstances of the case. Petitioner as well as other members of the Board were fully aware of their onerous responsibility of taking care of sick and infirm inmates which is akin to that of a guardian of a minor or imbecile and were required to discharge their supervisory role with such degree of intense circumspection as is expected of a reasonable person in such situation. When judged in this backdrop, the act of the petitioner and other accused persons converting the basement area into pharmacy and shop rooms containing combustible materials, failing to discharge their duty to rectify the deficiencies in the fire safety measures particularly non installation of fire stops, not providing requisite training and expertise to the staff manning the fire safety department and permitting an inherent dangerous practice like Code Brown to be continued in the hospital handicapped by patent deficiencies relating to fire control undeniably amounts to gross and culpable negligence but for which the death of innumerable patients would not have occurred. Hence, the callousness on the part of the management being of the grossest nature, prime facie appears to be the 'causa causan' for the death of those patients. There is no volitional or contributable role whatsoever on the part of the patients who expected that the management under the leadership of an eminent medical practitioner like the petitioner himself would ensure adequate premises safety so that there was no loss of life and limb due to negligence in fire safety. Reference to Regina vs. Kennedy,6 is therefore, not apposite. In the said report, the handing over of the narcotic injection to the victim by the accused and the causation of his death due to drug abuse was intervened by the volitional act of the victim himself in administering the said injection. No such intervening volitional act of the victims, that is, the patients is apparent between the gross negligence of the accused persons and their consequential death in the hospital.
It is pertinent to point out that the cases relied by the petitioner in this regard, that is, Mohd. Rangawalla vs State of Maharashtra,7 Suleman Rehiman Mulani vs State of Maharashtra,8 and Ambalal D. Bhatt vs State of Gujarat9 are factually distinguishable. In order to distinguish these authorities from the present case, let me discuss the factual foundations of these cases. In Rangawalla (supra), the Apex Court held that the keeping of burners by the manager though a rash and negligent act was not the 'causa causan' of death. It was the rashness of the workman Hatim whose hasty mixing of turpentine with bitumine resulted in death. In the second cited authority, that is, Suleman (supra), the accused driving a jeep without driving license who had caused death of an individual was held to be not guilty of the offence under Section 304A as mere absence of license cannot be the basis of an inference as to rash and 6 (2008) 1 AC 269 (HL).
7 AIR 1965 SC 1616.
8 AIR 1968 SC 829.
9 (1972) 3 SCC 525.
negligent driving. In the third case, in Ambalal (supra), the chief analyst responsible for the supervision of the manufacturing of batches of saline whose faulty proportions resulted in the death of individuals was acquitted and the Court opined that there were acts of contributory negligence from other sources involved in the case. It is essential to note that in none of the aforesaid authorities was the Court dealing with a case of cumulative negligence of a body of individuals who were in charge of running a medical institution resulting in death of patients admitted therein. Constructive liability arising out of Sections 35 and 36 of I.P.C. making each accused person responsible for the cumulative effects of their individual rash and negligent acts did not fall for decisions in the aforesaid reports. It is also relevant to note that in all the aforesaid cases, the issue whether the rash and negligent act was the 'causa causan' of death was decided after a full-fledged trial and the accused persons had not been discharged at the intermediate stage of framing of charge.
On the other hand in Keshub Mahindra v State of Madhya Pradesh,10 the Apex Court had been called upon to decide the issue of constructive liability of various officers of a corporation in the matter of running of a defective chemical plant where leakage of noxious gas caused innumerable deaths. While dealing with the culpability of the directors/managers in a case of corporate criminal liability, the Apex Court inter alia held as follows:
"23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the I.P.C. would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defective running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the I.P.C. could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, I.P.C.. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing 10 (1996) 6 SCC 129.
charges against accused Nos. 2, 3, 4 and 12 under Section 304A read with Section 35 I.P.C. while substantive charges under Section 304A could be framed against accused Nos. 5, 6, 7, 8 and 9."
It is apposite to note that the ratios of Rangawalla (supra), Suleman (supra) and Ambalal D. Bhatt (supra) were considered in Keshub Mahindra (supra) and distinguished on the premise that they were decisions relating to culpability of the accused upon a full-fledged trial and it would be imprudent to apply them at the intermediate stage of framing of charge.
In the instant case the aforesaid principle of constructive liability implicates the petitioner and other accused members of the Board of Directors with specific reference to their failure to effectively supervise the activities of accused managers and officials entrusted with the primary responsibility of maintaining fire safety facilities and implementing proper measures to tackle the situation which resulted in the death of patients due to grossly negligent handling of the fire. Such grossly negligent acts and/or omissions of the accused persons including the petitioner taken as a whole give rise to a strong suspicion that such acts and/or omissions were the direct and proximate cause for death of patients and therefore it cannot be said that no prima facie of rash and negligent act causing death has been made out against the petitioner by invocation of Sections 35 and 36 of I.P.C.
Finally, it is contended that the alleged acts and/or omissions of the petitioner do not, by any stretch of imagination, constitute the graver offences punishable under Sections 304 (II) or 308 of the Indian Penal Code.
In order to appreciate such contention, an analysis of the ingredients of the offences under Sections 304 and 304A of I.P.C. is necessary:-
Section 299 of I.P.C. Section 304A of I.P.C. (Culpable homicide not (Rash and negligent act amounting to murder) resulting in death) Whoever causes death:- When death is caused:- (i)with intention to cause Not Applicable death (ii)with intention to Not Applicable cause bodily injury that it is likely to cause the death (iii)by doing any act with By doing a rash or the knowledge that it is negligent act which is likely to cause death the direct and proximate cause of death
The case before this Court is not one where the petitioner and other accused persons had acted with the intention to kill the victims. Consequently, reference to the first two clauses of Section 299 of I.P.C. as shown in the chart is unnecessary.
However, as per clause (iii) of Section 299 I.P.C. in the chart, when a person commits an act with the knowledge that it is likely to cause death and thereby causes death of another individual, he may be held liable for culpable homicide not amounting murder. Alternatively, a rash and negligent act committed with the knowledge that the offender is acting recklessly and without reasonable care and caution would be punishable under Section 304A of the I.P.C if it is the direct and proximate cause of death. Critiquing the framing of charge under Section 304 (II)/308 of the I.P.C. against the petitioner, it is the contented that the alleged acts or illegal omissions attributed to him do not even constitute the ingredients of the lesser offence of rash and negligent act resulting in death, far less the graver charge under Section 304 (II)/308 I.P.C. Without prejudice to the aforesaid contention it is submitted that even if it is shown that the petitioner committed a rash and negligent act, such act was not coupled with the requisite knowledge that it was likely to cause death so as to bring it within the ambit of the graver offence. In furtherance of this assertion, the senior counsel emphatically argued that 'knowledge' as referred to in Section 299 of I.P.C. is one of a degree of certainty and not of mere possibility. He relied on various authorities in support of such submission.
On the other hand, learned Public Prosecutor has argued that the acts of the petitioner and other accused persons were so grossly reckless and negligent that any reasonable man of ordinary prudence would possess the requisite knowledge that such irresponsible conduct is likely to cause death. It is the submission of the prosecution that the acts of the petitioner were similar to cases of drunken driving resulting in death of an individual. Relying on authorities where cases of rash and negligent driving resulting in death have been held by the Apex Court to constitute an offence punishable under Section 304 (II) of I.P.C. instead of Section 304A of I.P.C., the prosecution opposed interference to the charges framed against the petitioner.
The petitioner in this case was the Managing Director of AMRI Hospitals Ltd which was owning the hospital. He was also a member of the Managing Committee which was in overall charge of the affairs of the hospital. As per the corporate hierarchy as evident from the statements of various witnesses associated with AMRI Hospitals Ltd, all the departments including the fire safety department reported to the Managing Committee which in turn reported before the Board of Directors. For the purpose of day-to-day management, various departments were headed by specific individuals. Following this scheme, the responsibility of operating the fire safety department of the hospital was delegated to accused nos. (08) Satyabrata Upadhyay, (09) Sanjib Pal and (10) Preeta Banerjee. The primary tasks of these accused persons included maintenance of fire safety measures alongside management and training of the personnel attached to the fire safety department. From the aforesaid corporate structure, it is evident that the petitioner and the Board of Directors were not directly in charge of the fire safety department on account of entrustment in the hands of members of the managerial staff over whom they exercised overall supervision.
The above mentioned circumstances of this case necessitate some elaboration on the functioning of companies in today's world. In the present day, companies are gargantuan juristic entities expressing themselves through the actions of numerous natural persons of differing expertise and professional skills arranged according to a hierarchical structure. While the Board of Directors lays down the policy of a corporate entity, such policy is given expression by the managers and/or officials at various levels who are assigned specialised roles depending on their station and expertise. Managing Director plays a substantial role in the management of the company as assigned to him by the Board of Directors but subject to delegation of powers of management to other managers and officials with regard to specified departments or activities. The structure of AMRI Hospitals Ltd is to be seen in this light. The company had a Board of Directors with the petitioner as the Managing Director. Other members of the board were Shravan Kumar Todi, Rabi Todi, Rahul Todi, Radheshyam Agarwal, Aditya V. Agarwal, Preeti Surekha, Radheshyam Goyenka, Manish Goyenka, Prasant Goyenka, Dr.Pranab Dasgupta, Dr. Shiv Bhagvat Tibrewal, Sukumar Bhattacharya and Soumendranath Banerjee. The Board was assigned with the duty of overall supervision of the affairs of the hospital and dealing with issues concerning general administration of the hospital. For the purpose of supervision of with day-to-day management of the hospital, a Managing Committee comprising of the petitioner, Dr. Pranab Dasgupta, Dr. Naba Pal, Dr. Mitra Mustafi, Dr. Suman Ghosh, Dr. S. Upadhyay, D.N. Agarwal, S.K. Todi, Preeta Banerjee, Rajesh Parekh and N.K.Bajaj was constituted. The Managing Committee reported to the Board and the latter took final decisions of such matters reported to it. Fire safety being a part of the premises safety of the hospital premises, was a specialised area dealt with by Sanjib Pal, Preeta Banerjee and Dr. S. Upadhyay in their capacity as the then Manager--Maintenance, the then AVP--Administration and Senior Vice President--Project respectively. These officials and/or managers reported to the Managing Committee and important matters were subsequently placed before the Board of Directors for final decision.
The role of the Board of Directors including the petitioner as Managing Director was, therefore, of overall supervision of the various departments of the hospital including the fire safety department. There is ample material on record to indicate that the petitioner and other members of the Board failed to discharge their supervisory role and ensure that the directives of the Fire Department of the Government of West Bengal were promptly implemented and other infrastructural irregularities and functional deficiencies of the fire fighting facilities of the hospital were swiftly addressed. The directors chose to ignore the dangers of implementing an in-house mechanism for fire containment, namely 'Code Brown' using inadequate facilities manned by inefficient and inept personnel instead of seeking help from external and more specialised agencies. It is apparent that the petitioner and other board members singularly failed in their duty to maintain the fire safety measures at a standard which is expected of a reputed hospital and also failed to ensure that the personnel of the hospital were adequately trained in the dynamics of fire safety and evacuation by means of regular drills and mock practices. Individual acts of failure and/or inaction of each of the accused persons including various board members may not in isolation constitute the direct and proximate cause of death but when seen conjointly they build up to a crescendo of gross negligence which was definitely the direct and proximate cause of deaths of innumerable patients in the hospital. These acts and/or omissions committed by each one of them in their cumulative character portrays a case of high level of recklessness and inattention on the part of the senior management in the administration of the hospital and such common knowledge of gross negligence on their part was certainly shared by the petitioner and other accused persons making them prima facie liable for the offence punishable under Section 304A read with Sections 35/36 of I.P.C.
However, for the charge framed under Section 304 (II) of I.P.C. to be sustained, the factual matrix of the case should illustrate that the petitioner had the requisite knowledge that his rash and negligent acts were likely to cause death. In Alister Anthony Pareira vs. State of Maharashtra,11 Apex Court held that an inebriated person causing death due to rash and negligent driving resulting in death would be liable for commission of offence punishable under Section 304(II) of I.P.C. as he had knowledge, as a reasonable man of ordinary prudence, that his act was so dangerous that it would cause an untoward event and thereby death was likely to be caused. The Court laid down the proposition as follows:-
"40. The question is whether indictment of an accused under Section 304 Part II and Section 338 IPC can coexist in a case of single rash or negligent act. We think it can. We do not think that the two charges are mutually destructive. If the act is done with the 11 (2012) 2 SCC 648.
knowledge of the dangerous consequences which are likely to follow and if death is caused, then not only that the punishment is for the act but also for the resulting homicide and a case may fall within Section 299 or Section 300 depending upon the mental state of the accused viz. as to whether the act was done with one kind of knowledge or the other or the intention. Knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known.
41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law--in view of the provisions of IPC--the cases which fall within the last clause of Section 299 but not within clause "Fourthly" of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.
42. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC. There is no incongruity, if simultaneously with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC."
While reiterating Alister Anthony Pareira (supra) the Apex Court expressed similar view in State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda.12 "114. The principle mentioned by this Court in Alister Anthony Pareira indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road. In our view, Alister Anthony Pareira judgment calls for no reconsideration. Assuming that Shri Ram Jethmalani is right in contending that while he was driving the vehicle in a drunken state, he had no intention or knowledge that his action was likely to cause death of six human beings, in our view, at least, immediately after having hit so many human beings and 12 (2012) 8 SCC 450.
the bodies scattered around, he had the knowledge that his action was likely to cause death of so many human beings, lying on the road unattended. To say, still he had no knowledge about his action is too childish which no reasonable man can accept as worthy of consideration. So far as this case is concerned, it has been brought out in evidence that the accused was in an inebriated state, after consuming excessive alcohol, he was driving the vehicle without licence, in a rash and negligent manner in a high speed which resulted in the death of six persons. The accused had sufficient knowledge that his action was likely to cause death and such an action would, in the facts and circumstances of this case, fall under Section 304 Part II IPC and the trial court has rightly held so and the High Court has committed an error in converting the offence to Section 304-A IPC."
From the ratios reflected in the aforementioned cases, it appears that if a rash and negligent act is committed with the knowledge that such act is likely to cause death, a charge under Section 304(II) of I.P.C. may be framed in addition to the framing of a charge under Section 304A of I.P.C.
The issue primarily requiring consideration in this respect, therefore, is identification of the circumstances under which the negligent acts and/omissions on the part of the petitioner can be imputed with the requisite mens rea, as aforesaid.
The word 'knowledge' in the context of Sections 299 and 300 of I.P.C. must be understood as involving a certain degree of certainty and not a mere probability as to knowledge of the consequence of the act. In Arun Nivalaji More vs. State of Maharashtra,13 the Apex Court while interpreting the concept of 'knowledge' in the Clause (ii) of Section 300 I.P.C. (which is akin to 'knowledge' as used in Clause (iii) of Section 299 I.P.C.) the Court held as follows:-
"16. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word "knowledge" is -- the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under:
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact.
13 (2006) 12 SCC 613.
'It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable.
Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended.' "
17. In Blackstone's Criminal Practice the import of the word "knowledge" has been described as under:
" 'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
18. The Law Commission of the United Kingdom in its 11th Report proposed the following test:
"The standard test of knowledge is -- Did the person whose conduct is in issue either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Textbook of Criminal Law by Glanville Williams, (p. 125).]
19. Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shri Ahirwar. So, clause Secondly of Section 300 IPC will also not apply."
In Halsbury's Laws of India (Criminal Law I), Second Edition (Vol.10) 'Knowledge' is defined as follows:-
"Knowledge is an awareness of the consequences of an act. Knowledge is an awareness on the part of the person concerned indicating his state of mind. However, knowledge imports a certainty and not a mere probability. Knowledge has to be judged with reference to the particular circumstances in which a person believes himself to be placed and not in the light of the actual circumstances. 'Knowing' connotes something more than having reason to believe. It implies a fact which may be known and imports knowledge of something actual by means of authentic or authoritative information although it does not import actual evidence of the senses. Direct evidence of knowledge or intention is seldom forthcoming and it must be inferred only from the facts and circumstances of each case. In doing this, recourse must be had to natural presumptions which the courts are entitled to draw. The number and nature of injuries may be one of the circumstances that may be taken into consideration for coming to a finding about intention or the knowledge of the offender. In some cases, even if the accused acted under superstitious or unreasonable belief and opposed to common sense, the court is entitled to infer that the accused acted with knowledge of the relevant facts unless there is some evidence to the contrary, originating from the accused who alone may know on what belief, if mistaken, was held. Knowledge is essentially subjective. In determining whether the requisite knowledge has been proved, account may be taken of the means of knowledge of the accused and, in some cases, whether the accused has wilfully shut his eyes to the truth."
In Shankar Narayan Bhadolkar vs. State of Maharashtra,14 the Apex Court held that when intent or knowledge is the direct motivating force of the act, Section 304A I.P.C. has to make room for the graver and more serious charge of culpable homicide. The Court held as follows:-
"18....Rashness and negligence are essential elements under section 304A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299 or murder in section 300 I.P.C. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a persons' death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, section 304A I.P.C. has to make room for the grave and more serious charge of culpable homicide."
It is therefore, evident that the mere possibility of knowledge that death is a consequence of an act is inadequate to draw an inference as to the existence of requisite knowledge in the mind of the accused. A degree of certainty in the awareness of the individual as to the likelihood of death as a consequence of his act is a prerequisite for imputation of requisite mens rea in a case of culpable homicide. Knowledge as to likelihood of death must be the direct and motivating force of the act and not a mere possibility arising therefore. Hence, every rash and negligent act causing death would not ipso facto result in an inference as to the existence of knowledge that the rash and negligent act is likely to cause death. The foreseeability of death and the degree of certainty as to such an adverse consequence must be deductible from the factual matrix of the case as weighed alongside the collected evidence. The parameters on which such foreseeability of death may be inferred would depend on (a) the nature of duty of care vested in the 14 JT 2004 (3) SC 211.
accused, (b) the degree of breach of such duty, and (c) other attending facts impacting the certainty of such consequence.
Duty of care of the Board of Directors of a company including that of its Managing Director is one of general supervision over the management of a company and not a direct 'hands on' role in the day to day affairs of each department of the said company, more particularly when the affairs of such department was of a specialised nature and had been delegated to other Managers and/or officers in the company hierarchy.
As per the materials on record the management of the Fire Services department of the hospital had been delegated to other accused persons, namely, Sanjib Pal, [Manager (Maintenance)], Preeta Banerjee, [AVP (Administration)] and Dr. S. Upadhay [Senior VP (Project)] who were in charge of said department in the hospital. Furthermore, it has come to light that it was accused Sanjib Pal, [Manager (Maintenance)] who took the decision to implement a dangerous in- house policy 'Code Brown' in the hospital which had a devastating impact on the fateful night as the personnel attached to the Fire Safety department of the hospital lost valuable time in their futile attempts to control the fire through inept and inefficient in-house mechanism without taking recourse to the external fire- fighting agencies. It also appears that 'Code Brown' was strictly implemented by Preeta Banerjee and an employee was suspended for faulting the same. Although the petitioner as the Managing Director being aware of this inherently dangerous practice introduced by the managers in-charge of the fire safety department, and other culpable deficiencies had failed and/or neglected to introduce corrective measures to pre-empt the disaster, such gross breach of due care in the supervision of the affairs of the hospital would not make him directly accountable for specialised decisions and/or day to day management in the domain of fire control and safety which had been specifically deputed to other accused persons.
The nature of duty entrusted to the Board of Directors including the petitioner in the company hierarchy, wherein the running and maintenance of the fire department had been specifically delegated to the subordinate management and/or officers, must be borne in mind while assessing the issue as to whether they may be attributed with the knowledge that their acts were likely to claim the lives of numerous patients.
It appears from the materials on record that the Board of Directors including the petitioner negligently accepted the mere ipse dixit of the managerial staffs and/or officers of the Fire department, solely relying on their assessment of ground realities as to premises safety without bothering to undertake a more intense and inquisitorial exercise in the matter which was expected of them keeping in mind their position as reasonable men of ordinary prudence with requisite knowledge as to the affairs in the hospital.
The dereliction of duty of due care on the part of the petitioner and other board members in the facts of the case is, no doubt, of a gross nature and cumulatively resulted in the death of several patients but in view of the supervisory role cast on the petitioner and other Board members, it is difficult to arrive to a prima facie opinion that breach of supervisory role in the matter of specialised activity like fire safety when delegated to specified managers or officials would certainly create awareness of death as a consequence of such breach. Same parameter may not apply to the manager and officers who were directly in charge of the day-to-day running of the fire safety department and had introduced the infamous 'Code Brown' as a fire control measure with regard to the certainty of knowledge that their rash and negligent acts were likely to cause death.
The knowledge as to the likelihood of causing death in the mind of the petitioner and other board members was further allayed by the repeated grants of 'No Objection Certificates' to the hospital by the Fire Department of Government of West Bengal despite the existence of various deficiencies in its fire-fighting measures.
'No Objection Certificates' granted by the State to the hospital, though coupled with the riders of rectifications or upkeep, would ordinarily create an impression in the mind of a reasonable person discharging general supervision of the hospital that the deficiencies directed to be improved were not of such grave nature that the institution could not be operated without posing a serious risk to human life. I hasten to add that even though such act of the Fire Department may not be treated as an act of contributory negligence, it would indeed have created a sense of assurance in the minds of the board members including the petitioner that running the hospital with the noted deficiencies would not, in all probability, cause death.
Furthermore it appears from the uncontroverted averments in the charge- sheet that the FSL report indicated that the fire started either from the illegally installed stand-alone ACs in the upper basement, or from an external object. Hence, there is absence of definite conclusion that the cause of fire was due to negligence in the upkeep of the hospital premises. Such circumstance, without detracting from the grossness of the negligence of the petitioner and other accused persons in the management of the hospital resulting in the death of patients, would definitely have a mitigating impact on the certainty of knowledge of the petitioner that his remissness in all probability would cause death which is a sine qua non for framing of charge under Section 304/308 of I.P.C. against the petitioner.
Absence of degree of certainty as to knowledge that death is a likely consequence of breach of due care by the petitioner writ large in the factual matrix of the case when one considers the culpable act of the petitioner in the light of the extent and nature of his duty, delegation of the duty to manage the fire safety department to specified managers and/or officials and other attending circumstances like the issuance of NOCs, though with upkeep measures mentioned therein, by the Fire Department to authorise the operation of the hospital despite the existence of such deficiencies and absence of certainty that the cause of fire was attributable to the negligent management of the hospital.
The nature of due care cast on a driver driving his vehicle in a rash and negligent manner on a road or thoroughfare cannot be equated with the duty of general supervision of the Board over the affairs of the company, particularly, where such affairs have been delegated to a section of managers and/or officers. When the nature of duty is one of supervision and not direct performance, it would naturally be a diminutive factor as to foreseeability of its consequence in the event of breach; more so, when the area of breach relates to specialised activities like fire-fighting, safety measures, etc. which have been assigned to supposedly responsible personnel. Knowledge as to the consequence of such a supervisory body or personnel like the Managing Director is also tempered by the conduct of regulatory agencies, for example, the Fire Department of the State of West Bengal as well as lack of certainty as to the cause of outbreak of fire as in the instant case. These circumstances taken as a whole make it amply clear that although the petitioner and other Board members may be prima facie held responsible for gross negligence in their duty to supervise the fire-fighting system in the hospital with such efficiency as is expected of a body of reasonable persons, it cannot be said that their action in the aforesaid factual backdrop can be attributed with a kind of firm knowledge or awareness that it is likely to cause death of the patients. The factual matrix of the case involving the liability of a Managing Director running a hospital with deficiencies resulting in a devastating fire and consequential deaths is similar to the facts in Keshub Mahindra (supra) wherein the accused persons being the Managing Director/Directors of the company owning a defective chemical plant continued to run such plant with defects which resulted in escape of noxious isocyanate gas causing innumerable deaths. Under such circumstances, while quashing the charge under Section 304(II) of I.P.C., the Apex Court held as follows:-
"...the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trial court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the Plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the Plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a Plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective Plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in Tank No. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings. In fairness to the prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the Plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking the entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the Plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned under Section 304 Part II IPC on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the Plant on that night ultimately resulted in deaths of a number of human beings and cattle."
Similarly in Sushil Ansal vs. State through CBI,15 over the issue of a devastating fire in a cinema hall resulting in numerous deaths, Directors of the company owning the cinema hall were charged of offence punishable under Section 304A I.P.C. instead of Section 304(II) I.P.C. (see Paragraph 34). Special Leave Petition filed against such order was also dismissed.16 An attempt was made on behalf of the prosecution to distinguish the aforesaid case from the present one on the plea that the cinema goers could take care of themselves in the event of a fire while sick patients in a hospital are unable to do so. Such factual distinction is, however, not tenable as in the reported case the exit of the cinema hall had been blocked rendering the cinemagoers as helpless as the sick patients in the hospital.
15 2002 (63) DRJ 585.
Reference may also be made Shantibhai J. Vaghela v. State of Gujarat,17 where charge under Section 304 (II) of I.P.C. was reduced to Section 304A of I.P.C. against the inmates of the ashram running a school when school children had drowned in a nearby river due to lack of effective supervision on their part.
Furthermore, in Shamsher Khan vs. State (NCT of Delhi),18 the Apex Court held that the persons who had stored explosives in a house resulting in an explosion causing death of the inmates could not be held guilty under Section 304(II) of I.P.C. as it cannot be presumed that mere storage of explosives would invariably result in an inference of knowledge that it is likely to cause death.
Similarly, gross negligence on the part of the petitioner with regard to improvement in the fire safety measures in spite of repeated directions to that effect by itself cannot give rise to a degree of certainty of knowledge that their act or omission is likely to cause death so as to justify framing of charge under Section 304 Part II or Section 308 of I.P.C.
Reference to Indu Jain vs. State of Madhya Pradesh & Ors.,19 in this regard on behalf of the State is wholly misplaced. In the said report, the Apex Court held that framing of charge under Section 304 Part II of I.P.C. was justified when the post mortem report of the victim showed he had suffered internal injuries including broken ribs during his detention in the office of the Lokayukta and the plea that he could have died due to Asthma owing to poor maintenance of the hospital was no justification to reduce such charge. The report is clearly factually distinguishable from the present one and has no manner of application.
Unreported judgments in Azema Begum vs. State of West Bengal,20 and Sri Ajay Kumar Singh @ Ajay Singh vs. State of West Bengal,21 relied upon by the prosecution were decided on the facts of those cases and do not lay down 16 SLP (Cri) 1530 of 2002, order dated 12-4-2002 (SC).
17 (2012) 13 SCC 231.
18 (2000) 8 SCC 568.
19 (2008) 15 SCC 341.
20 C.R.R. 3245 of 2015, Order dt. 22.06.2016 any law of universal application. In Azema Begum (supra) the victim was physically assaulted by the accused persons resulting in his death. It was argued that charge should be framed under Section 304 I.P.C. instead of Section 302 of I.P.C. In view of the nature of injuries suffered by the victim and other facts and circumstances of the case it was held that there was no illegality in framing the graver charge. Similarly, in Ajay Singh (supra) the accused ran over a police officer from behind while riding on a motorcycle. It was held in the factual matrix of that case, framing of charge under Section 304(II) of I.P.C. was justified.
It is worth noting that in State of Maharashtra vs. Salman Salim Khan & Anr.,22 the Apex Court had held that the framing of a graver charge and trial in a superior forum does not cause prejudice to an accused. At the same time, one may not lose sight of the fact that in the said case, the Apex Court did not interfere with the framing of charge for a lesser offence, namely, Section 304A of I.P.C. instead of Section 304 Part II of I.P.C. It is settled law that the duty of the Court at the time of framing of charge is not ministerial and the Court shall not frame a graver charge on the mere ipse dixit of the prosecution although there is no material justifying such charge on the mere plea that no prejudice would thereby be caused to the accused. On the contrary, at the stage of consideration of charge, the judge is required to apply his mind independently to the facts of the case and satisfy himself as to whether strong suspicion exists on the uncontroverted materials on record to justify the charge framed against the accused.
In Union of India vs. Prafulla Kumar Samal & Anr.,23 the Supreme Court held that the Judge is not a post-office and would not frame a charge unless strong suspicion exists against the accused with regard to commission of 21 C.R.R. 96 of 2017, Order dt. 16.01.2017 22 (2004) 1 SCC 525.
23 (1979) 3 SCC 4.
the offence. Similar view has been held in State of Karnataka vs. L. Muniswamy & Ors.24 In Niranjan Singh vs. State of Maharashtra,25 the Apex Court held that the Court has the power to sift the evidence in a limited way to satisfy as to whether a prima facie case has been made out against the accusation.
In State of Maharashtra & Ors. vs. Somnath Thapa & Ors.,26 the Apex Court held that charge may be framed on the basis of materials on record, if the Court can come to a conclusion that the offence is a probable consequence and the accused might have committed the offence.
However, none of the aforesaid reports lay down any proposition that a Court is bound to frame a graver charge by way of abundant caution although the materials on record do not prima facie disclose the ingredients of the alleged graver offence. However quashing of a graver charge at the intermediate stage does not amount to autrefois acquit in respect of such accusation and if the prosecution is able to lead cogent evidence at the subsequent stage in support of such change, charge may be reframed incorporating the graver offence at that stage. Reference may be made to Central Bureau of Investigation & Ors vs. Keshub Mahindra & Ors.27 in that regard.
With regard to the charges framed under Section 11C read with 11J of the West Bengal Fire Services Act, 1950 it appears that the petitioner as the Managing Director and agent of the company had executed a lease on behalf of the company in favour of Emami Frank Ross Ltd. to run a pharmacy on a rent free basis in the upper basement of the hospital. Licence to run the hospital in the premises in question was also issued to the petitioner on behalf of the company.
Section 2(id) and 2(ie) of the West Bengal Fire Services Act defines the words 'occupier' and 'owner' as follows:-
24
(1977) 2 SCC 699.
25 (1990) 4 SCC 76.
"2(id)'occupier' means a person living in, or otherwise using, any land or building owned by him, or a person who, for the time being, is paying, or is liable to pay, to the owner the rent or fee, or is making, or is liable to make, contractual payment to the owner for adjustment of rent or fee, or damages, or any portion thereof, on account of occupation of any land or building, and includes a rent-free tenant;"
"2(ie) 'owner' means a person who, for the time being, is receiving the rent of any land or building or any part of any land or building, either on his own account or as an agent of a person, or trustee for a society for any religious or charitable purpose, or as a receiver who would receive such rent if the land or the building or any part thereof were let to a tenant;"
Wide amplitude of the definition of "owner" and "occupier" in the said Act would include an agent of the owner entitled to receive rent as an "owner" and any person in rent free occupation of the building as an "occupier" for the purposes of the Act. The petitioner as Managing Director was an agent of the company owning the building and was otherwise entitled to receive rent in such capacity if any portion of the building had been let out on rent. In fact, he had executed a lease on behalf of the company permitting Emami Frank Ross Ltd. to run a pharmacy. He had also been granted the license on behalf of the company under the West Bengal Clinical Establishment Act to run the hospital from the said building.
Under such circumstances, the petitioner shall fall within the ambit of the aforesaid expressions and would be liable to be prosecuted under the penal provisions of the West Bengal Fire Services Act irrespective of the fact that the company had not been arraigned as an accused in the instant case. Hence, non- joinder of the company as an accused person does not affect the legality of the charges framed under Section 11C punishable under Section 11J of the said Act against the petitioner.
In view of the aforesaid discussion I hold as follows:-
26 (1996) 4 SCC 659.
27 (2011) 6 SCC 216.
(a) Impugned order dated 19th March, 2016, to the extent it framed charges under Section 304(II)/308 read with Section 36 of I.P.C. against the petitioner is quashed.
(b) The Trial Court is directed to frame charges against the petitioner under Sections 304A/337/338 read with Sections 35 and 36 of I.P.C.
(c) In view of the gravity of the case involving death of a large number of patients and the fact that charges under Sections 304(II)/308 read with Section 36 of I.P.C. have been framed against other accused persons, the trial in the instant case shall continue in the self-same Court after reframing of the charges as aforesaid and in accordance with law.
The petition is allowed to the aforesaid extent.
Observations made by me in this order are for the disposal of this application and shall not have any bearing at the subsequent stage of trial which decided independently on the basis of the evidence adduced and in accordance with law.
Case Diary be returned to the learned Public Prosecutor.
(JOYMALYA BAGCHI, J.) PA to Justice J. Bagchi, J.