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(8) Amit Ghildiyal S/o Sh. M.D. Ghildiyal. Food and Beverage Trainee, Hyatt Hotel - He was the incharge of the lounge situated at 6th floor. During his duty the terrace was opened to the guests despite knowing that the terrace area was not a proper smoking area and was not properly lit and safe, whose names are kept in the column No. 11 (without arrest) of the challan for the offences u/s 336, 338 read with 32 IPC and 4 COTPA."

55. It has further been submitted through the charge-sheet that the charge-sheet under Sections 336/338 r/w Section 32 Indian Penal Code, 1860, & 4 of the COTPA 2003 had been prepared and submitted before the learned Trial Court. It was further submitted through the charge-sheet that the FSL result of the case had not been received at PS R.K.Puram and the injured Gaurav Rishi had not been examined so far and it there was any relevant evidence came to the file, the same would also be filed through supplementary charge-sheet and that the accused persons were on recognizance and not arrested in the case as per the provisions of Sec.41.1.(b) Cr.P.C.

"Para 43" In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences".

59. It was thus sought to be contended on behalf of the State that in the instant case too, the several laxities and gross negligence of the hotel authorities in its duty to take care and preventive measures for the safety of its ‗guests' made the petitioners responsible for running the hotel, wholly culpable for criminal negligence. Reliance is also placed on behalf of the State on the verdict of the Apex Court in Savelife Foundation & Anr. Vs. Union of India & Anr. in Writ Petition (C) No.235/2012 a verdict dated 30.03.2016 to place reliance on the observations in Para-3 of the said verdict to contend that the public often refrains from coming forth to help the victim in a motor accident and it is due to the apparent fear of being involved in police cases and to contend that accident cases require fastest care and rescue which could be provided by those closest to the scene of the accident and bystanders support is essential to enhance the chances of survival of the victim in the ‗Golden Hour' i.e. the first hour of the injury. As per the WHO India Recommendations, 50% of the victims die in the first 15 minutes due to serious cardiovascular or nervous system injuries and the rest can be saved through by providing basic life support during the ‗Golden Hour'. Right to life is enshrined under Article 21 which includes right to safety of persons and the immediate medical assistance as a necessary corollary is required to be provided and also adequate legal protection and prevention from harassment to good Samaritans and to contend that the requisite degree of care and precaution and also providing for the medical assistance during the ‗Golden Hour' had not been complied with by the Hyatt Hotel.

16. Statements of a large number of witnesses relevant to the fire incident, its causes and effects were also recorded by the investigating agencies from time to time culminating in the filing of a common charge-sheet against 16 persons accusing them of commission of several offences punishable both under the Indian Penal Code, 1860 as also under the provisions of the Cinematograph Act, 1952. What is important is that while accused A-1, A-2, A-12, A-13 and A-14 were charged with commission of offences punishable under Sections 304A, 337, 338 read with Section 36, IPC and Section 14 of the Cinematograph Act, 1952, accused A-3 to A-8 comprising the management and gatekeeper of the Cinema were charged with commission of offences punishable under Sections 304, 337, 338 read with Section 36, IPC and Section 14 of the Cinematograph Act, 1952. The employees of DVB namely Inspectors B.M. Satija (A-9), A.K. Gera (A-10) and Senior Fitter, Bir Singh (A-
11) were also charged with the commission of offences punishable under Sections 304, 337 and 338 read with Section 36 of the IPC.

As regards the remaining three accused namely, N.D. Tiwari (A-14), H.S. Panwar (A-15) and Surender Dutt (A-16), they were charged with commission of offences punishable under Sections 304A, 337, 338 read with Section 36 of IPC.

91. It was contended by Mr. Jethmalani that the offence if any having been committed by the company, officers of the company could not be vicariously held guilty of criminal negligence. Reliance, in support of that submission was placed by Mr. Jethmalani upon the provisions of Section 141 of the Negotiable Instruments Act and the decisions of the Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla (2005) 8 SCC 89, JK Industries and others v. Chief Inspector of Factories and Boilers (1996) 6 SCC 685. It was urged that in the absence of any provisions in the IPC rendering the officers of the company vicariously liable for prosecution for the offences committed by the company, there was no question of the appellant Ansal brothers being held guilty that too for an offence committed long after they had ceased to hold any position in the company. We regret our inability to accept that submission. We say so because the appellants have not been prosecuted as officers of a company accused of committing an offence, nor is it the case of the prosecution that the appellants are vicariously liable as in the case of those falling under Section 141 of the Negotiable Instruments Act. The prosecution case on the other hand is that in their capacity as occupiers the appellant Ansal brothers had a duty to care for the safety of the patrons which duty they grossly neglected. The entire substratum of the case is, therefore, different from the assumption on which Mr. Jethmalani has built his argument. The assumption being misplaced, the argument can be no different .